DEVELOPMENT OF COMMUNITY SPORTS COMPLEX WHICH QUALIFIES AS A "RETAINED SPRING TRAINING FRANCHISE FACILITY"
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AGREEMENT FOR DEVELOPMENT
OF
COMMUNITY SPORTS COMPLEX
By and Between:
THE CITY OF CLEARWATER, FLORIDA
and
THE PHILLIES
Dated Date: March 1,2001
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ARTICLE 1
Section 1.01.
Section 1.02.
Section 1.03.
Section 1.04.
Section 1.05.
Section 1.06.
Section 1.07.
Section 1.08.
Section 1.09.
Section 1.10.
Section 1.11.
Section 1.12.
Section 1.13.
Section 1.14.
Section 1.15.
Section 1.16.
Section 1.17.
Section 1.18.
Section 1.19.
Section 1.20.
Section 1.21.
Section 1.22.
Section 1.23.
Section 1.24.
Section 1.25.
Section 1.26.
Section 1.27.
Section 1.28.
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TABLE OF CONTENTS
Page
DEFINITIONS; PARTICULAR TERMS; AND RULES OF
CONSTRUCTION..................... ............... ....... ................................................ 3
"Act" .................................................................................................... 3
"Action" ............................................................................................... 3
"Affiliate" ....... .... .......................... ... ....... ..... ......................................... 3
"Agreement" or "Development Agreement" ........................................4
"Agreement Expiration Certificate" ..................................................... 4
"Agreement Termination Certificate" .................................................. 4
"Authorized Representative"...... .......................................................... 4
"Bonds" . ...... ........... ..... ......................................................................... 4
"Bond Ordinance" ....... ................. .... ................ ........... ......................... 4
"B uilding Permits" ............................................................................... 5
"Business Day" .......... .................. ....... ...... ............. .............................. 5
"City" .... ........ ......... .......................... ... ........ ............. ............................ 5
"City Capital Contribution" ............... ..... ........ .......... ........................... 5
"City Commission" ............ ........ ............. ...................... ....................... 5
"City Delay" ......................................................................................... 5
"City Environmental Study" ........ .................................... .................... 5
"City Environmental Study Cost" ........................................................ 6
"City Event of Default" .................... .................................................... 6
"City Geotechnical Investigation" ............ ............ .................... ........... 6
"City Geotechnical Investigation Cost" ............................................... 6
"City Monetary Default" ....... ............... ...... ............................... ........... 6
"City Non-Monetary Default" .. .......... ............... ..........................;........ 6
"City Site Work Financial Contribution" .............................................6
"c I ub" .................................................................................................. 6
"Commencement Date"..... ............. .... ........ ..... ..................................... 7
"Community Sports Complex" ............ .... .................. ..... ............. ........ 7
"Community Sports Complex Completion Certificate" ...................... 7
"Community Sports Complex Cost" .................................................... 7
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Section 1.29.
Section 1.30.
Section 1.31.
Section 1.32.
Section 1.33.
Section 1.34.
Section 1.35.
Section 1.36.
Section 1.37.
Section 1.38.
Section 1.39.
Section 1.40.
Section 1.41.
Section 1.42.
Section 1.43.
Section 1.44.
Section 1.45.
Section 1.46.
Section 1.47.
Section 1.48.
Section 1.49.
Section 1.50.
Section 1.51.
Section 1.52.
Section 1.53.
Section 1.54.
Section 1.55.
Section 1.56.
Section 1.57.
Section 1.58.
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TABLE OF CONTENTS
(continued)
Page
"Community Sports Complex Funding" .............................................. 8
"Community Sports Complex Plans and Specifications" .................... 8
"Completion Date" .., ........... .............. ................................................... 8
"Conceptual Documents" . ....... ........ ..................................................... 8
"Condemnation Proceedings" ........................... ....... ....................... ..... 8
"Conditions Satisfaction Date" ............................................................ 9
"Construction Documents" .............. ........ ............................................ 9
"Construction Fund" ...... ........................... ........................................... 9
"Construction Manager" ...................................................................... 9
"Consultants Competitive Negotiation Act" ........................................ 9
"Contractor" ......................................................................................... 9
"Costs of Issuance" .............................................................................. 9
"County" ........................................... ........ ......................................... 10
"Dated Date" ............... ................ ........ ............................................... 10
"Environmental Laws" .... ....... ........ ........ .... ............ ...... ...................... 10
"Existing Environmental Condition" .................................................10
"Expedited ADR" ...... ........... ................ .............................................. 11
"Force Majeure" ............... .............. .................................................... 11
"Governmental Approvals................................................................. 11
"Hazardous Materials" .... ............... .......... .......................................... 12
"Infrastructure Improvements" .......................................................... 12
"Infrastructure Improvements Completion Certificate" ..................... 12
"Infrastructure Improvements Completion Date" .............................. 13
"Infrastructure Improvements Cost" ................ ........... ............. .......... 13
"Infrastructure Improvements Plans and Specifications" .................. 13
"Infrastructure Improvements Schedule" ........................................... 13
"Interlocal Agreement" .... ............ .................................... .................. 13
"Legal Requirements" .............. ..... ....... ................. ...... ....................... 13
"Memorandum of Development Agreement" ....................................14
"OTTED" .... ................. ........ ........ ............. ........... .............................. 14
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Section 1.59.
Section 1.60.
Section 1.61.
Section 1.62.
Section 1.63.
Section 1.64.
Section 1.65.
Section 1.66.
Section 1.67.
Section 1.68.
Section 1.69.
Section 1.70.
Section 1.71.
Section 1. 72.
Section 1.73.
Section 1.74.
Section 1.75.
Section 1.76.
Section 1.77.
Section 1.78.
Section 1.79.
Section 1.80.
Section 1.81.
Section 1.82.
Section 1.83.
Section 1.84.
Section 1.85.
Section 1.86.
Section 1.87.
Section 1.88.
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TABLE OF CONTENTS
( continued)
Page
"Person" ..... ....... ...... ...... ................... .................................................. 14
"Phillies Capital Contribution" .. ...... ............... .................... ............... 14
"Phillies Discretionary Facilities" ...................................................... 14
"Phillies Environmental Investigation" .............................................. 14
"Phillies Environmental Investigation Program" ............................... 15
"Phillies Evaluation Period" .......... ............ ........................ ............... 15
"Phillies Event of Default" ........................ ................ ......................... 15
"Phillies Monetary Default" .... ........................................................... 15
"Phillies Non-Monetary Default" .. ............................. ....................... 15
"Phillies Site Investigation" ............................................................... 15
"Phillies Site Investigation Cost" ....................................................... 16
"Phillies Site Work Financial Contribution"...................................... 16
"Pre-Construction Costs" .......... ............ ............................................. 16
"Project" ... ......... ...................... ........................................................... 16
"Project Architect(s)" ..... ....... ........ ....... .................................. ............ 16
"Project Costs" .......... ...... ...... ................................................. ............ 17
"Project Schedule" . ......... ..... ................ ...... ....................... ................. 17
"Project Site" .......... ....... ......... ........ ............ ............ ............................ 17
"Project Site Acceptability Determination Date" ............................... 17
"Project Term Sheet" ......................................................................... 17
"Public Source Project Funding" .... ..................... .............................. 17
"Public Source Project Funding Deadline" .......,................................ 18
"Scope of Work" ........ ............................ .................................. .......... 18
"Site Plan" ..................... .......... ...... ..................................................... 18
"Site Preparation" ..................... ....................... ................................... 18
"Site Work" ... ...................... ............................................................... 18
"Site Work Cost" ................................................................................ 19
"Site Work Plan" ................................................................................ 19
"State" ........... ..... ....................... .......... ............................................... 19
"STFF Act" ....... .................................. ...... ....... ......... ............. ............ 19
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Section 1.89.
Section 1.90.
Section 1.91.
Section 1.92.
Section 1.93.
Section 1.94.
Section 1.95.
Section 1.96.
Section 1.97.
Section 2.01.
Section 2.02.
Section 2.03.
Section 2.04.
Section 2.05.
Section 2.06.
Section 3.01.
Section 3.02.
Section 3.03.
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TABLE OF CONTENTS
(continued)
Page
"STFF Program" .... ........... ...... ............ ........................................~...... 19
"Substantial Completion".. ..........................................................,...... 19
"Taking" .......... ................. ........................ .......................................... 20
"Termination Date" ............ ........................ ........................................ 20
"The Phillies" ........ .................... ......................................................... 20
"Uncontrollable Construction Delays"... ........... ........ ................ ......... 20
"Use Agreement" .......... ............. ........................................................ 21
Terminology... ............. .................................................................. ..... 21
Statutory Citations. ............................................................................ 21
Purpose of Agreement.... .... ............................................ .................... 21
Recitals............................................................................................... 22
Finding of Public Purpose........... ..................... ....... ............ ............... 22
Project Term Sheet.... ........ ................................................................. 23
Cooperation of the Parties.................... ........ ...................................... 23
Appointment of Authorized Representatives..................................... 23
City Environmental Study. .......... ............... ....................................... 24
Site Determination... .......................................................................... 24
Title to Site.............. ....... .................................................................... 25
Phillies Site Investigation; Phillies Evaluation Period....................... 27
City Geotechnical Investigation. .............................. ........... ............... 28
Phillies Environmental Investigation Program; Phillies
Environmental Investigation.......... ....... ..... ........................................ 29
Section 3.07. Site Work Plan. ....................................................,............................. 31
Section 3.08. Site Work; Remediation...... .............. ....... ........................... .............. 31
Section 3.09. Environmental Matters..... .................................................................. 32
Section 3.10. Alternative Site. .... ............... ....................... ....................................... 34
Section 3.11. Right of Entry .... ............. ......... ........ .... .................... .......................... 35
ARTICLE 4 LAND USE REGULATION ......................................................................... 35
Section 3.04.
Section 3.05.
Section 3.06.
Section 4.01.
Section 4.02.
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Zoning................................................................................................ 35
Comprehensive Plan ....... .............. ..................................................... 35
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TABLE OF CONTENTS
(continued)
Page
Section 4.03. Development of Regional Impact ......................................................36
Section 4.04. Governmental Approvals .................... ........................ ........... ............ 36
Section 4.05. Concurrency............... ...... ............... ........ ........................................... 39
Section 4.06. Not a Development Order or Permit.................................................. 40
Section 4.07. Right of Termination.......................................................................... 41
ARTICLE 5 PROJECT ARCHITECT(S); PLANS AND SPECIFICATIONS ................. 41
Section 5.01. Selection of Project Architect(s) ............ ........... .............. ........ ........... 41
Section 5.02. Scope of Work; Site Plan .............. ............ ...... ........ ........................... 42
Section 5.03. Conceptual Documents; Plans and Specifications; and Building
Permits .... .... ........... .................. ......... ..... ............................................ 44
Section 5.04. Changes to Community Sports Complex Plans and
Specifications. ........ ....... ....... ...... ........................................................ 51
ARTICLE 6
Section 6.01.
Section 6.02.
Section 6.03.
Section 6.04.
Section 6.05.
Section 6.06.
ARTICLE 7
Section 7.01.
Section 7.02.
Section 7.03.
Section 7.04.
Section 7.05.
Section 7.06.
Section 7.07.
Section 7.08.
Section 7.09.
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INFRASTRUCTURE IMPROVEMENTS .................................................... 52
Infrastructure Improvements...... .................. ....................... ..... .......... 52
Infrastructure Improvements Plans and Specifications...................... 54
Infrastructure Improvements Financing.... ......................... ................ 55
Construction of the Infrastructure Improvements.............................. 55
Infrastructure Improvements Completion Certificate........................ 56
Infrastructure Improvements Coordination.... .......................... .......... 56
CONSTRUCTION OF THE COMMUNITY SPORTS COMPEX .............. 57
Construction Manager; Pre-Construction Services............................ 57
Selection of Contractors.................... .................................................. 57
Site Preparation...... ............................................................................ 58
Construction of the Community Sports Complex.............................. 58
Contracts............................................................................................ 60
Material and Supply Contracts; Provisions Governing State of
Florida Sales and Use Tax Exemption for City-Furnished
Materials ............................................................................................ 61
Maintenance and Repairs...... ............ ............ ..................................... 63
Project Alterations or Improvements ................................................. 63
Community Sports Complex Completion.......................................... 63
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Section 7.10.
ARTICLE 8
Section 8.01.
Section 8.02.
Section 8.03.
Section 8.04.
Section 8.05.
Section 8.06.
Section 8.07.
Section 8.08.
Section 8.09.
ARTICLE 9
Section 9.01.
Section 9.02.
Section 9.03.
Section 9.04.
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TABLE OF CONTENTS
(continued)
Page
City Not in Privity with Contractors. .......... ............................... ........ 66
PROJECT FINANCING.... ...................................................... ...................... 66
Project Financing.. ..................... .... .... ........................... ..................... 66
Interlocal Agreement .... ......... ............... ............................................. 67
State Funds ...... ........... ................. ....................................................... 68
Covenant to Issue Bonds......... ............. ................. ............................. 68
City Capital Contribution............... .................................................... 69
Phillies Capital Contribution...... ............ ....... .... ................................ 70
No Liability of The Phillies ................. ......................................;....... 70
Unavailability of Funds........................................ .............................. 70
Construction Fund; Disbursement Procedures................................... 71
PROVISIONS REGARDING INSURANCE................................................ 72
Phillies Liability Insurance................................................................ 72
Phillies Workers' Compensation ............... ........... .............................. 73
Builders' Risk Insurance.. .......... ................ ........................................ 73
Envirorunental Insurance.. ................................................................. 73
Section 9.05. City's Liability Insurance ................................................................... 73
Section 9.06. City's Workers' Compensation Insurance .......................................... 74
Section 9.07. General Requirements........................................................................ 74
Section 9.08. City Self-Insurance or Self-Funding.................................................. 74
ARTICLE 10 CASUALTY; CONDEMNATION ...............................................................75
Section 10.0 1. Casualty........................ ........................ .............................................. 75
Section 10.02. Condemnation ........... .............. ............ ............................................... 76
ARTICLE 11
Section 11.01.
Section 11.02.
ARTICLE 12
ARTICLE 13
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REPRESENTATIONS, WARRANTIES AND SPECIAL
COVENANTS ......... ........... ........ ........ .............. ............................................. 79
Representations, Warranties and Special Covenants of The
Phillies ........... ................. .......... ......................................................... 79
Representations, Warranties and Special Covenants ofthe City....... 81
NON-RECOURSE NATURE ....................................................................... 84
CONDITIONS PRECEDENT TO THE PHILLIES OBLIGATIONS
HEREUNDER. .......... ........... .................................. ....................................... 85
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TABLE OF CONTENTS
( continued)
Page
Section 13.01. Maximum Construction Cost.... .......... ................. ......... ..................... 85
Section 13 .02. Phillies Site Investigation ................. ...... ..... ...................................... 85
Section 13.03. City Site Work .................... .............. ......................... ........................ 85
Section 13 .04. City Capital Contribution............. ...... ........ ................ .................... .... 86
Section 13.05. Opinion of City Attorney...........................................................;....... 86
Section 13.06. Opinion of The Phillies' Legal CounseL........................................... 87
ARTICLE 14 DEFAULT; REMEDIES ............... .............. ....... ........ ................................... 88
Section 14.01. Default by Phillies.............................................................................. 88
Section 14.02. Default by the City ........................... ........ ......... .......... ......... .............. 90
Section 14.03. Tolling of Time Periods.... ............. ............ ................ ........................ 94
Section 14.04. Obligations, Rights and Remedies Cumulative ................................. 94
Section 14.05. Non-Action on Failure to Observe Provisions of this
Agreement...... ..... ... ........... ... ................ .................................... .......... 95
Termination............... .... .... .......... ...... ...................................... ........... 95
Agreement Termination Certificate.. ............................ ............ ......... 98
Section 14.06.
Section 14.07.
ARTICLE 15
MISCELLANEOUS ............... .......... ............................................. ... ............. 99
Section 15.01.
Section 15.02.
Section 15.03.
Section 15.04.
Section 15.05.
Section 15.06.
Section 15.07.
Section 15.08.
Section 15.09.
Section 15.1 O.
Section 15.11.
Section 15.12.
Section 15.13.
Section 15.14.
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Assignments....................................................................................... 99
Successors and Assigns....................... .......... ................................... 100
Notices ........... ................................................................. ..... ............ 100
Applicable Law and Construction ................................................... 101
Venue; Submission to Jurisdiction .................................................. 101
Agreement Not a Development Agreement..................................... 102
Estoppel Certificates........................................................................ 102
Entire Agreement; Amendments............... ....................................... 103
Headings ......... ....... ........... ............................................................... 103
Exhibits ... ..................... ........ .................... ........... .................... ......... 104
No Joint Venture .... ........ .... .............. .............. .................................. 104
No Brokers ................... ............. ............... ........................................ 104
Not an Agent.................................................................................... 104
Time of Essence............................................................................... 104
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Section 15.15.
Section 15.16.
Section 15.17.
Section 15.18.
Section 15.19.
Section 15.20.
Section 15.21.
Section 15.22.
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TABLE OF CONTENTS
(continued)
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Attorneys' Fees.... .... ........ ............................................ ..................... 104
Certain Disputes....... ............... ......................................................... 105
Alternative Dates Agreed to By Parties....... .......... ....... ................... 105
Memorandum of Development Agreement .................................... 105
Technical Amendments ... ............ ....... ............................................. 105
Term; Expiration; Certificate ....................................................... .... 106
Expiration on Day Other than Business Day. ..................................107
Effective Date ............. ...... .......... ..................................................... 107
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AGREEMENT FOR DEVELOPMENT
OF
COMMUNITY SPORTS COMPLEX
THIS AGREEMENT FOR DEVELOPMENT OF COMMUNITY SPORTS
COMPLEX is made and entered into as of the 1st day of March, 2001, by and between THE
CITY OF CLEARWATER, FLORIDA, a municipal corporation of the State of Florida and
THE PHILLIES, a Pennsylvania limited partnership.
WITNESSETH:
WHEREAS, The Phillies is the sole owner of the Philadelphia franchise for a Major
League Baseball club in the National League of Professional Baseball Clubs; and,
WHEREAS, the City is a municipal corporation organized and existing under the laws of
the State; and,
WHEREAS, pursuant to the provisions of Chapter 2000-186, Laws of Florida (the
"STFF Act"), which became effective as of June 2, 2000, the State has established a method and
means of making available funds from the State to be matched with other financial commitments
to finance the development of new or improved facilities for a retained spring training franchise;
and,
WHEREAS, under the provisions of the STFF Act, The Phillies qualifies as a "retained
spring training franchise," the City qualifies as a "unit oflocal government," and a new stadium
and related facilities to be constructed and operated for use by The Phillies and owned by the
City qualifies as a "retained spring training franchise facility"; and,
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WHEREAS, the City and The Phillies have negotiated, prepared, approved and executed
the Project Term Sheet (as herein defined), setting forth the principal terms of (i) a development
agreement between the City and The Phillies for the development, construction and placing into
service of a community sports complex, including related infrastructure improvements, to qualify
as a "retained spring training franchise facility" and (ii) a use agreement for the use of such
community sports complex by The Phillies, and which Project Term Sheet contemplates the
parties entry into, inter alia, a definitive development agreement, and this Agreement constitutes
such definitive development agreement; and,
WHEREAS, the State's Office of Tourism, Trade and Economic Development has
previously certified the City's qualification for funding under and pursuant to the STFF Act to
provide a portion of the funding for the development, construction and placing into service of a
"retained spring training franchise facility," including without limitation a new stadium and
related facilities, improvements and amenities; and,
WHEREAS, the City, in order to assure a portion of the financing of the Community
Sports Complex, has entered into the Interlocal Agreement with the County, providing for the
cooperation and assistance of the County and the City in accomplishing the objectives of this
Agreement, including the provision by the County of certain tourist development tax funds to the
City to be used for supporting a portion of the financing of the Community Sports Complex; and,
WHEREAS, the City Commission of the City, as the governing body of the City, at a
duly noticed public meeting held on March 1, 2001, approved this Agreement, and authorized
and directed the execution and delivery of this Agreement by the appropriate officials of the
City; and,
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WHEREAS, The Phillies has approved this Agreement, and authorized and directed the
execution and delivery of this Agreement by the general partner of The Phillies;
NOW, THEREFORE, for and in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable considerations, the receipt and
sufficiency of which are acknowledged by each of the parties hereto, the parties agree as follows:
ARTICLE 1
DEFINITIONS; PARTICULAR TERMS; AND RULES OF CONSTRUCTION
As used in this Agreement, the following terms shall have the following meanings, unless
otherwise specifically provided herein:
Section 1.01. "Act" means the Constitution of the State of Florida; Section 163.01,
Florida Statutes; Chapter 166, Florida Statutes; the STFF Act; the City's Charter; and other
applicable provisions oflaw, and ordinances and resolutions of the City.
Section 1.02. "Action" means any action, order, writ, injunction, judgment or decree
outstanding or claim, suit, litigation, proceeding, arbitration, audit or investigation by or before
any governmental authority or any other Person.
Section 1.03. "Affiliate" means, with respect to any Person, (i) any other Person which
directly or indirectly through one or more intermediaries controls, or is controlled by, or is under
common control with, such Person or (ii) any general partner, officer or director of such Person
or of any other Person described in clause (i). As used in the previous sentence, "control" means
the possession, directly or indirectly, of the power to cause the direction of the management of a
Person, whether through voting securities, by contract, family relationship or otherwise.
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Section 1.04. "Agreement" or "Development Agreement" means this Agreement for
Development of Community Sports Complex, including any and all exhibits or schedules
attached hereto, as amended, supplemented or otherwise modified in writing from time to time.
Section 1.05. "Agreement Expiration Certificate" means the instrument in the form of
Exhibit "B" executed by the City and The Phillies pursuant to Section 15.20 hereof certifying
that the Agreement has expired in accordance with its terms.
Section 1.06. "Agreement Termination Certificate" means the instrument in the form
of Exhibit "C" executed by the City and The Phillies pursuant to Section 14.07 hereof certifying
that the Agreement has been terminated prior to the Expiration Date.
Section 1.07. "Authorized Representative" means the individual or individuals
designated and appointed from time to time as such by The Phillies and the City, respectively,
pursuant to Section 2.06 hereof.
Section 1.08. "Bonds" means those bonds, notes, commercial paper, or other evidences
of indebtedness to be issued by the City, pursuant to the Bond Ordinance, to finance or refinance
a portion of the Community Sports Complex Costs, as provided in ARTICLE 8.
Section 1.09. "Bond Ordinance" means Ordinance No. 6675-01 adopted by the City
Commission on January 18, 2001, and any ordinances or proceedings amending or
supplementing such ordinances, providing for the issuance of the Bonds upon the terms and
conditions thereof.
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Section 1.10. "Building Permits" means collectively any and all permits issued, and/or
required by applicable Legal Requirements to be issued, by the City for the commencement,
prosecution and completion of all or any portion of the Community Sports Complex.
Section 1.11. "Business Day" means any day other than a Saturday, a Sunday or any
other day on which the City's public offices are closed for business.
Section 1.12. "City" means the City of Clearwater, Florida, a municipal corporation
under the laws of the State of Florida, and its successors and/or assigns.
Section 1.13. "City Capital Contribution" means the capital contribution by the City to
pay the City's portion ofthe Community Sports Complex Costs as required by Section 8.05.
Section 1.14. "City Commission" means the governing body of the City, however
constituted and by whatever name known, from time to time.
Section 1.15. "City Delay" means delays which actually cause The Phillies to miss the
Completion Date as a result of (i) the City's failure to timely undertake and perform any of the
acts required of it hereunder or in connection with the exercise of its governmental powers with
respect to the Project (e.g., review and approval of the Community Sports Complex Plans and
Specifications pursuant to Section 5.03 hereof) or (ii) other action or omission by the City not in
its governmental capacity.
Section 1.16. "City Environmental Study" means that study of the environmental
conditions of the tract of land described on Exhibit "A" conducted by Tampa Bay Engineering,
Inc., the results of which are contained in that certain report entitled "Limited Investigation of
Joe DiMaggio Fields, " dated as of December 5, 2000.
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Section 1.17. "City Environmental Study Cost" means the cost of the City
Environmental Study paid by the City as provided in Section 3.01.
Section 1.18. "City Event of Default" shall have the meaning ascribed to said term in
Section 14.02(a) hereof.
Section 1.19. "City Geotechnical Investigation" means the geotechnical investigations,
assessments, audits and reports, soil borings, and fill, compaction and grading recommendations,
to be performed by or for the City as provided in Section 3.05 necessary to determine the ability
of the geologic, soil and subsurface conditions of the Project Site to adequately support the
Community Sports Complex.
Section 1.20. "City Geotechnical Investigation Cost" means the aggregate cost of the
City Geotechnical Investigation.
Section 1.21. "City Monetary Default" shall have the meaning ascribed to said term in
Section 14.02(a) (i).
Section 1.22. "City Non-Monetary Default" shall have the meaning ascribed to said
term in Section 14.02(b) hereof.
Section 1.23. "City Site Work Financial Contribution" means the contribution to be
made by the City to pay for the City's portion of the Site Work Costs as provided in Section 3.08.
Section 1.24. "Club" means the Major League Baseball franchise owned by The
Phillies.
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Section 1.25. "Commencement Date" means that date as established in the Project
Schedule as the Commencement Date.
Section 1.26. "Community Sports Complex" means that part of the Project consisting
of (A) the Site Preparation and (B) the development and construction of that certain sports
facility to be developed and constructed on the Project Site pursuant to the terms of this
Agreement which shall include without limitation (i) an open air, natural grass ballpark and
stadium meeting first class Major League Baseball spring training standards, with approximately
7,000 fixed seats (including premium seating and group areas) and an outfield berm seating area
accommodating approximately 1 ,000 fans and including clubhouse facilities, batting tunnels,
team office space for The Phillies, locker rooms, and other elements of such ballpark and
stadium, (ii) one full size, lighted practice field, (iii) one practice infield, (iv) on-site parking for
approximately 1,000 vehicles plus player/staff NIP parking for approximately 175 vehicles and
(v) in the discretion of The Phillies, other facilities such as a restaurant/sports bar, a
souvenir/sporting items store, a health/fitness facility, and other facilities of like or similar use
(the items in this clause (v), being collectively referred to herein as the "Phillies Discretionary
Facilities").
Section 1.27. "Community Sports Complex Completion Certificate" means the
instrument in the form of Exhibit "D" executed by the City and The Phillies pursuant to Section
7.09 hereof evidencing the Substantial Completion of the Community Sports Complex.
Section 1.28. "Community Sports Complex Cost" means the aggregate cost of the
construction, completion and equipping of the Community Sports Complex, including Site
Preparation, installation of utilities internally on the Project Site, pouring of foundations and
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footers, and vertical construction and completion and equipping of the stadium, improvements,
buildings, site improvements such as sidewalks and parking lots comprising the Community
Sports Complex.
Section 1.29. "Community Sports Complex Funding" means the funds provided from
the Public Source Project Funding and the Phillies Capital Contribution to pay the cost of
developing, constructing, and completing the Community Sports Complex, or any portion
thereof, on the Project Site, including, but not limited to, financing costs, soft costs, overhead,
and the design, construction and equipping of the Community Sports Complex.
Section 1.30. "Community Sports Complex Plans and Specifications" means the
Construction Documents approved as provided in Section 5.03 hereof, including any changes
thereto.
Section 1.31. "Completion Date" means that date as established in the Project Schedule
as the Completion Date.
Section 1.32. "Conceptual Documents" means conceptual drawings, elevations,
schematics or plans for the Community Sports Complex as described in Section 5.03(a) hereof.
Section 1.33. "Condemnation Proceedings" means any action brought for the purpose
of taking of the Project Site, the Community Sports Complex or any part thereof or any other
property interest therein, including, without limitation, access thereto, by any Person exercising
the power of eminent domain, or other governmental authority, including a voluntary sale to such
authority either under threat of condemnation or which action or proceeding is pending.
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Section 1.34. "Conditions Satisfaction Date" means October 1, 2001, or such other
date agreed to in writing by the parties.
Section 1.35. "Construction Documents" means any and all plans, drawings,
renderings, schematics and specifications prepared by the Project Architect(s) for the design and
completion of the Community Sports Complex prior to their becoming the Community Sports
Complex Plans and Specifications, but does not include the Conceptual Documents.
Section 1.36. "Construction Fund" means one or more funds or accounts of the City as
contemplated by Section 8.09 hereof.
Section 1.37. "Construction Manager" means the Construction Manager which may be
selected by The Phillies pursuant to Section 7.01 hereof.
Section 1.38. "Consultants Competitive Negotiation Act" means Section 287.055,
Florida Statutes, together with any recodification thereof, or any successor statute having like
effect.
Section 1.39. "Contractor" means one or more Persons constituting a construction
contractor or construction manager and holding valid licenses therefor issued by the State or
other appropriate jurisdiction to the extent required by Legal Requirements, authorized to
perform construction contractor and/or construction management services in the State, registered
with the City as and to the extent required by Legal Requirements, and bonded and insured to the
extent required by Legal Requirements and this Agreement.
Section 1.40. "Costs of Issuance" means, with respect to the Bonds, the actual
reasonable costs of the City in issuing the Bonds.
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Section 1.41. "County" means Pinellas County, Florida, a political subdivision of the
State.
Section 1.42. "Dated Date" means March 1,2001.
Section 1.43. "Environmental Laws" means any and all federal, state or local laws,
rules, regulations, or ordinances, whether now or hereafter enacted, relating to protection of the
environment, and/or regulation of the generation, storage, or release of Hazardous Materials, and
which shall include, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, including without limitation by the
Superfund Amendments and Reauthorization Act, the Resource Conservation and Recovery Act
of 1976, as amended, the Toxic Substances Control Act, as amended, the Federal Insecticide,
Fungicide and Rodenticide Act, as amended, the Hazardous Materials Transportation Act, as
amended, the Solid Waste Disposal Act, as amended, and the Atomic Energy Act of 1954.
Section 1.44. "Existing Environmental Condition" means with respect to the Project
Site and as of the Commencement Date, any prior or existing condition thereon or with respect
thereto, including, without limitation, the presence or any generation, storage or release of
Hazardous Materials, or any violation of Environmental Laws, (i) on, with respect to, or which
adversely impacts (a) the Project Site or the use thereof (including, without limitation, its use for
development, construction and completion of the Community Sports Complex), or (b) any real
property adjoining or within the vicinity of the Project Site or the use thereof, or (ii) for which
any owner of any interest in, or occupant or user of, the Project Site shall have any liability,
obligation or responsibility under any Environmental Laws or for which any Person (including,
without limitation, any governmental authority or adjoining landowner) shall have any right,
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claim or cause of action, whether statutory or at common law, against any owner of any interest
in or occupant of the Project Site or the Project Site itself.
Section 1.45. "Expedited ADR" means the Expedited Alternative Dispute Resolution
procedures attached to this Agreement as Exhibit "J".
Section 1.46. "Force Majeure" means any event which is beyond the reasonable
control of, and is not caused by the fault or negligence of, the party asserting the Force Majeure,
which wholly or partially prevents the performance of any of the duties, responsibilities or
obligations of the party asserting the Force Majeure, and including, without limitation, an act of
God, an act of the public enemy, fire, explosion or other serious casualty, unusually severe
weather (such as hurricane, earthquake or flood), war (whether declared or not), war-like
circumstances, invasion, mobilization, revolution or rebellion, terrorist activities, riot or civil
commotion, strike, work-stoppage, lock-out, or other labor disturbance, shortages of labor or
materials, military usurpation of power, or regulation, rules or orders of governmental authority
(but specifically excluding any ordinance, law, rule or regulation enacted by the City itself).
Section 1.47. "Governmental Approvals" means all variances, approvals and consents
required to be granted, awarded, issued, or given by any governmental authority in order for
construction and completion of the Project, or any part thereof, to commence, continue, or be
completed or to allow occupancy and use thereof, other than the Building Permits, and
specifically including without limitation any and all zoning, land use, subdivision, and curb cut
approvals, licenses and permits, which shall include without limitation creating access and
ingress and egress to and from the Project Site and necessary adjoining public rights of way.
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Section 1.48. "Hazardous Materials" means, without limitation, one or more of the
following substances: (i) those substances included within the definitions of "hazardous
substances," "hazardous materials," "hazardous wastes," "toxic substances," "solid waste,"
"pollutants," "contaminants," or "nuclear or byproduct material" in or pursuant to Environmental
Laws; (ii) those substances listed in the United States Department of Transportation Table (49
CFR 172.10 1, as amended) or by the Environmental Protection Agency (or any successor
agency) as hazardous substances (40 CFR Part 302, as amended) or by the Florida Department of
Environmental Protection, or any other environmental regulator as hazardous substances; (iii)
such other substances, materials and wastes which are or become regulated under any
environmental law, environmental regulation or any other federal, state or local law, rule or
regulation; and (iv) any asbestos, polychlorinated biphenyls, petroleum products and distillates,
and other solid, semi-solid, liquid or gaseous substances which are toxic, ignitable, explosive,
corrosive, carcinogenic or otherwise dangerous to human, plant or animal health and well being.
Section 1.49. "Infrastructure Improvements" means the infrastructure improvements
to be designed, constructed and installed by the City or caused to be designed, constructed and
installed by the City as provided in ARTICLE 6 hereof.
Section 1.50. "Infrastructure Improvements Completion Certificate" means the
instrument executed by the City certifying that design, construction, installation and equipping of
the Infrastructure Improvements are substantially complete and usable for the purposes
contemplated by this Agreement and setting forth the Infrastructure Improvements Completion
Date, the form of which is attached hereto as Exhibit "E"
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Section 1.51. "Infrastructure Improvements Completion Date" means the date of
Substantial Completion of construction and installation of the Infrastructure Improvements as
contemplated by this Agreement and as evidenced by the Infrastructure Improvements
Completion Certificate.
Section 1.52. "Infrastructure Improvements Cost" means the aggregate cost to design,
construct, and install the Infrastructure Improvements.
Section 1.53. "Infrastructure Improvements Plans and Specifications" means the
plans and specifications for commencing, continuing and completing the Infrastructure
Improvements as provided in Section 6.02
Section 1.54. "Infrastructure Improvements Schedule" means the schedule for
commencing, continuing and completing the design, construction, and installation of the
Infrastructure Improvements as provided in Section 6.01 hereof.
Section 1.55. "Interlocal Agreement" means that certain Interlocal Agreement between
the County and the City, dated as of December 1,2000, entered into pursuant to Section 163.01,
Florida Statutes, which establishes certain duties and responsibilities of the City and the County
relative to that portion of the Public Source Project Funding to be provided by the County as
provided in Section 8.02 hereof.
Section 1.56. "Legal Requirements" means all federal, state, county, municipal and
other governmental laws (including applicable constitutions), ordinances, codes, rules,
regulations, statutes, and orders (including court and administrative agency orders), all covenants
and restrictions of record and the requirements of all fire insurance underwriters or rating
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bureaus applicable to the Project Site, the Community Sports Complex or the design, permitting,
development, construction, equipping or completion thereof.
Section 1.57. "Memorandum of Development Agreement" means the Memorandum of
Development Agreement in the form attached hereto as Exhibit "F" and to be executed by the
City and The Phillies as more particularly provided in Section 15.18 hereof.
Section 1.58. "OTTED" means the State's Office of Tourism, Trade and Economic
Development, or any successor agency or governmental unit or body having responsibility for
the administration of the STFF Program pursuant to the STFF Act.
Section 1.59. "Person" means any natural person, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof, or any other form of
entity.
Section 1.60. "Phillies Capital Contribution" means the capital contribution by The
Phillies to pay the The Phillies' portion of the Community Sports Complex Cost as required by
Section 8.06 hereof.
Section 1.61. "Phillies Discretionary Facilities" shall have the meaning ascribed to
said term in Section 1.26.
Section 1.62. "Phillies Environmental Investigation" means all such environmental
investigations, assessments, audits and reports as The Phillies shall determine to be performed by
its environmental consultants as a part of the Phillies Site Investigation.
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Section 1.63. "Phillies Environmental Investigation Program" means, collectively, the
contract(s) between The Phillies and its selected environmental consultants for environmental
investigation and consultancy services relating to the performance of the Phillies Environmental
Investigation, the scope of work prepared by The Phillies and/or its environmental consultants
therefor, and a schedule for the performance of the Phillies Environmental Investigation, as
provided in Section 3.06.
Section 1.64. "Phillies Evaluation Period" means that period of time prior to and
including the day preceding the Commencement Date for evaluation by The Phillies of the
Project Site as provided in Section 3.04.
Section 1.65. "Phillies Event of Default" shall have the meaning ascribed to said term
in Section 14.01(a) hereof.
Section 1.66. "Phillies Monetary Default" shall have the meaning ascribed to said term
in Section 14.01(a) (i).
Section 1.67. "Phillies Non-Monetary Default" shall have the meaning ascribed to said
term in Section 14.01(b) hereof.
Section 1.68. "Phillies Site Investigation" means, collectively, the investigations of the
Project Site to be undertaken by or for The Phillies pursuant to the provisions of Section 3.04
hereof, including without limitation the Phillies Environmental Investigation, in order for The
Phillies to determine the suitability of the Project Site for the development, construction, use, and
operation of the Community Sports Complex, which investigations may include such
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geotechnical, soils, and environmental investigations and. reports as The Phillies shall determine
in its discretion.
Section 1.69. "Phillies Site Investigation Cost" means the aggregate cost of the Phillies
Site Investigation.
Section 1.70. "Phillies Site Work Financial Contribution" means the capital
contribution by The Phillies to pay The Phillies' portion of the Site Work Cost as provided in
Section 3.08 hereof.
Section 1.71. "Pre-Construction Costs" means the fees and costs incurred by The
Phillies prior to the Commencement Date for architectural, engineering and/or design services in
connection with the Project or the elements thereof.
Section 1.72. "Project" means, collectively, the Site Work, the Infrastructure
Improvements and the Community Sports Complex.
Section 1.73. "Project Architect(s)" means one or more duly licensed providers of
architectural and/or engineering services retained by The Phillies, pursuant to the provisions of
Section 5.01 hereof, for the purposes of providing design services for the Community Sports
Complex and its elements, including without limitation preparation of the Construction
Documents in detail sufficient to competitively procure the construction of the Community
Sports Complex and support the Construction Documents so as to obtain such approvals as are
necessary or required in order to become the Community Sports Complex Plans and
Specifications.
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Section 1.74. "Project Costs" means, collectively, the costs to plan, design, develop,
construct, equip, and install the Infrastructure Improvements, the Site Work and the Community
Sports Complex.
Section 1.75. "Project Schedule" means the schedule prepared and approved in Section
5.03 hereof, the initial version of which is attached hereto as Exhibit "0".
Section 1.76. "Project Site" means the tract of land, including the public rights-of-way
and any land to be dedicated to public use, located in the City on which the Site Work will be
done, some of the Infrastructure Improvements will be constructed or installed and the
Community Sports Complex will be developed and constructed as determined in accordance
with the provisions of Section 3.02 or Section 3.10 hereof.
Section 1. 77. "Project Site Acceptability Determination Date" means May 31, 2001, or
such other date agreed to in writing by the parties.
Section 1.78. "Project Term Sheet" means that certain Clearwater Stadium Project
Term Sheet between the City and The Phillies entered into on or about September 8, 2000.
Section 1.79. "Public Source Project Funding" means those portions of the Project
Funding obtained or to be obtained from (i) the State under the STFF Program and the County
under the Interlocal Agreement, which shall, pursuant to the Bond Ordinance, be pledged to
secure, and shall provide the debt service for, the Bonds, and (ii) the City as herein contemplated,
including without limitation funds required to pay for the Infrastructure Improvements, the City
Site Work Financial Contribution and the City Capital Contribution.
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Section 1.80. "Public Source Project Funding Deadline" means July 1, 2001, or such
other date agreed to in writing by the parties.
Section 1.81. "Scope of Work" means the detailed program narrative for the
Community Sports Complex to be agreed upon by the parties as provided in Section 5.02 hereof,
but does not include the Site Plan.
Section 1.82. "Site Plan" means a detailed site plan for development and construction
of the Community Sports Complex on the Project Site as required by applicable Legal
Requirements and subject to review as provided in Section 5.02.
Section 1.83. "Site Preparation" means the preparation of the Project Site by The
Phillies as part of the construction of the Community Sports Complex, including grading, fill,
clearance, and installation of foundations, pilings and footers, necessary for vertical construction
of the Community Sports Complex after the Site Work is completed.
Section 1.84. "Site Work" means that part of the Project consisting of all work
undertaken on the Project Site pursuant to Section 3.08 hereof and necessary for preparing the
Project Site for the construction of the Community Sports Complex, including without limitation
geotechnical and/or environmental remediation work necessary for completion of the
Community Sports Complex and support of all structural and other elements of the Community
Sports Complex, including, without limitation, any compaction, removal of existing materials,
fill, and all other work necessary to address any environmental, geotechnical, geologic,
subsurface, soil, or other site conditions that would adversely impact the cost or speed with
which the Infrastructure Improvements and the Community Sports Complex can be completed,
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including, without limitation the effecting of any remediation required by any Legal
Requirement, but does not include Site Preparation.
Section 1.85. "Site Work Cost" means the aggregate cost of the Site Work determined
as provided in Section 3.08 hereof.
Section 1.86. "Site Work Plan" means the plan to undertake the Site Work described in
Section 3.07 hereof.
Section 1.87. "State" means the State of Florida.
Section 1.88. "STFF Act" means Chapter 2000-186, Laws of Florida, and any rules or
regulations implementing such legislation.
Section 1.89. "STFF Program" means the funding scheme and program established by
the STFF Act and administered by OTTED, pursuant to which the State shall fund a portion of
the costs necessary for the development, construction and placing into service of a "retained
spring training franchise facility."
Section 1.90. "Substantial Completion" means, for the purposes of this Agreement, (i)
as to the Community Sports Complex, that partial certificates of occupancy have been issued by
all governmental authorities having jurisdiction over the completion of the Project for that
portion of the Community Sports Complex which is necessary or required such that the Club,
without interruption (other than to the extent due to construction activities of The Phillies
associated with the Project), can play Grapefruit League (as defined in the Use Agreement)
exhibition baseball games in the Community Sports Complex and allow the public to attend and
observe such exhibition games with the beneficial use of such amenities and features as The
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Phillies shall in its discretion determine necessary to effectively do so including, without
limitation, concession facilities and parking facilities, and (ii) as to the Infrastructure
Improvements, that the Infrastructure Improvements are completed so as to provide adequate and
sufficient service and capacity thereto as of the Substantial Completion of the Community Sports
Complex.
Section 1.91. "Taking" means the vesting of title to the Project Site, the Community
Sports Complex, or any part thereof or any other property interest therein pursuant to any
Condemnation Proceedings.
Section 1.92. "Termination Date" means the date on which this Agreement is
terminated by either party hereto as provided in Section 14.06 or other provisions of this
Agreement giving either or both parties the right to terminate this Agreement, and as evidenced
by an Agreement Termination Certificate.
Section 1.93. "The Phillies" means The Phillies, a Pennsylvania limited partnership,
and any successors and assigns thereof.
Section 1.94. "Uncontrollable Construction Delays" means (i) an event of Force
Majeure, (ii) the discovery of unforeseen site conditions on the Project Site, (iii) City Delay, or
(iv) a change of law which makes any requirements affecting the testing, design, engineering,
construction, acceptance or operation of the Community Sports Complex more burdensome than
the most stringent requirements contained under Legal Requirements applicable to the
Community Sports Complex or the construction or development thereof at the Dated Date,
provided, however, that no ordinance, rule or regulation of the City shall constitute such a
change of law that shall operate to relieve the City of its obligations under this Agreement.
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Section 1.95. "Use Agreement" means that certain Sports Facility Use Agreement
between the City and The Phillies dated to be effective as of December 31, 2000, providing for
the use of the Community Sports Complex by The Phillies for the term and upon the terms and
conditions therein provided.
Section 1.96. Terminology. All personal pronouns used in this Agreement, whether
used in the masculine, feminine, or neuter gender, shall include all other genders; the singular
shall include the plural, and the plural shall include the singular. The words "hereof," "herein,"
and "hereunder" and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and Section,
subsection, and exhibit references are to this Agreement unless otherwise specified.
Section 1.97. Statutory Citations. All references herein to Florida Statutes shall mean
Florida Statutes (2000).
ARTICLE 2
PURPOSE
Section 2.01. Purpose of Agreement.
(a) Purpose. The purpose of this Agreement is to provide for the
planning, design, permitting, development, construction, and completion of the
Community Sports Complex on the Project Site in accordance with the Community
Sports Complex Plans and Specifications and the planning, design, permitting,
construction, installation, and completion of the Infrastructure Improvements in
accordance with the Infrastructure Improvements Plans and Specifications, such that the
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Community Sports Complex shall be available for use and occupancy by The Phillies
pursuant to the terms of the Use Agreement.
(b) City Undertakings. Upon and subject to the terms and conditions of
this Agreement, the City shall undertake certain public actions pursuant to the Act,
completion of the Site Work, making the Project Site available for the construction of the
Community Sports Complex, funding of the City Capital Contribution and other funds
required to be expended by the City pursuant to the terms hereof, issuance of the Bonds,
and provision to the Project of the Public Source Project Funding, assistance in obtaining
such approvals by governmental authorities as are necessary for the Project, and the
construction and installation of the Infrastructure Improvements.
(c) The Phillies' Undertakings. Upon and subject to the terms and
conditions of this Agreement, The Phillies shall carry out the planning and design of the
Community Sports Complex, development of the Project Site by obtaining such
Governmental Approvals and Building Permits as are required pursuant to Legal
Requirements for development of the Community Sports Complex, and constructing and
equipping the Community Sports Complex on the Project Site.
Section 2.02. Recitals. The recitals contained in the beginning of this Agreement are an
integral part hereof and are hereby incorporated by reference for all purposes as if fully set forth
herein.
Section 2.03. Finding of Public Purpose. The development of the Project Site,
specifically including completion of the Site Work, the design, permitting, construction,
equipping, and completion of the Community Sports Complex, and each component thereof as
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provided in this Agreement, and the design, permitting, construction, installation, and completion
of the Infrastructure Improvements, are hereby found by the City to: (i) conform to the
provisions of the Act, (ii) be in the best interests of the citizens of the City, (iii) further the
purposes and objectives of the City, and (iv) further a public purpose.
Section 2.04. Project Term Sheet. The City and The Phillies mutually agree that the
terms of this Agreement are consistent with and in furtherance of the provisions of the Project
Term Sheet. As of the Dated Date, the Project Term Sheet shall, as to the development of the
Project, be superseded and replaced by this Agreement and shall no longer be of any force and
effect.
Section 2.05. Cooperation of the Parties. The City and The Phillies recognize that the
successful planning, design, permitting, development, construction and completion of the Project
and each component thereof shall require the cooperation of each of the parties, and each agrees
that it shall act in a reasonable manner hereunder, consistent, however, with the express
provisions hereof, provide the other party with complete and updated information from time to
time as provided herein, with respect to the conditions such party is responsible for satisfying
hereunder, and make its good faith reasonable efforts to assure that such cooperation is
continuous, the purposes of this Agreement are carried out to the full extent contemplated hereby
and the Project is designed, permitted, constructed, equipped, and completed as provided herein.
Section 2.06. Appointment of Authorized Representatives. Each party shall designate
an Authorized Representative to act on its behalf for the purposes of this Agreement. Written
notice of the designation of such a representative (and any subsequent change in the Authorized
Representative) shall be given by the designating party to the other party in writing in
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accordance with the procedures for notice set forth in Section 15.03 hereof. The notice shall
include any limits or restrictions on the authority of the Authorized Representative. Except as
otherwise expressly provided in this Agreement, whenever approval or action by The Phillies or
the City is required by this Agreement, such action or approval may, in the discretion of the party
considering such approval or action, be taken or given by the Authorized Representative thereof.
A party to this Agreement may rely upon the representation of the other party's Authorized
Representative that such person has the requisite authority to give the approval or take the action
being taken by that Authorized Representative. A party may not later deny that its Authorized
Representative had the authority represented to and relied upon by the other party or revoke or
deny any action taken by such Authorized Representative which was relied upon by the other
party, provided, however, nothing herein prevents a party from asserting its Authorized
Representative exceeded the limits on such individual's authority if such limits were included in
the notice to the other party.
ARTICLE 3
PROJECT SITE
Section 3.01. City Environmental Study. The City has previously undertaken and
completed the City's Environmental Study and paid the City Environmental Study Cost. The
City has provided a copy of the City Environmental Study to The Phillies.
Section 3.02. Site Determination. The City and The Phillies agree that the tract of land
described in Exhibit "A" (the "Exhibit 'A' Property") shall be the Project Site, unless the
Phillies Site Investigation discloses conditions which the City and The Phillies mutually agree
make the Exhibit "A" Property unsuitable for the Community Sports Complex or if there are
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other conditions or circumstances the parties agree justify finding an alternative site as provided
in Section 3.10 hereof; subject, however, to The Phillies' right of termination during the Phillies
Evaluation Period as provided in Section 3.04. The City acknowledges that it has selected the
Exhibit "A" Property as the site most appropriate for the development, construction and
completion of the Community Sports Complex, and the City agrees, to the fullest extent
permitted by law, that it shall (subject to the more specific indemnities provided in Section 3.04,
Section 3.06, and Section 3.09 below) hold The Phillies, its partners, officers, agents, employees,
and independent contractors, harmless of, from and against any and all claims or causes of action
asserted by any Person alleging or asserting any adverse effect with respect to such Person's
lands or the improvements thereon, or the use or operation thereof, as a result of the
development, construction and/or operation of the Community Sports Complex on the Exhibit
"A" Property.
Section 3.03. Title to Site. The City represents and warrants to The Phillies that (i) it
has acquired the Exhibit "A" Property as of December 19, 2000, and is the owner in fee simple
absolute of good and marketable title to such property, (ii) the Exhibit "A" Property is free and
clear of all liens and encumbrances, other than ad valorem real property taxes and assessments
for 2001 and thereafter which are not yet due and payable, and (iii) the Exhibit "A" Property is
not subject to any easement, covenant or restriction which would prevent, or which would
impose any unreasonable restriction or cost on, the development, construction, completion, use
or operation of the Community Sports Complex as contemplated by the terms of this Agreement
and the Use Agreement. The City covenants and agrees that it has obtained or will obtain for
itself in connection with its acquisition of title to the Exhibit "A" Property an owner's policy of
title insurance and shall provide a copy of such policy to The Phillies on or before March 15,
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2001, in connection with the Phillies Site Investigation pursuant to Section 3.04 hereof. In the
event that the parties determine to select an alternative Project Site pursuant to Section 3.10, the
City shall likewise obtain an owner's policy of title insurance with respect to such alternative
Project Site and shall deliver a copy of same to The Phillies upon issuance thereof. The City
further covenants and agrees that, if at any time or from time to time, there shall exist any defect
to the City's good and marketable fee simple title to the Project Site, the City shall, at the City's
sole cost and expense, take all such action as is required or necessary in order to cure such defect
and assure the City's good and marketable fee simple title in and to the Project Site, free of all
liens and encumbrances and all easements, covenants or restrictions which would impose any
unreasonable restriction or cost on, the development, construction, completion, use or operation
of the Community Sports Complex as contemplated by the terms of this Agreement and the Use
Agreement, including without limitation bringing any condemnation action or otherwise
exercising the City's right to eminent domain. The foregoing covenant shall remain in full force
and effect for the entire term of this Agreement, and thereafter for so long as the Use Agreement
is in full force and effect, notwithstanding the termination of this Agreement. Further, such
covenant shall be enforceable by The Phillies through specific performance as provided in
Section 14.02(d) hereof. Notwithstanding the foregoing, The Phillies may, but shall not be
required to, obtain, at its sole cost and expense, such title insurance as it shall deem appropriate
insuring its interest in and to the Project Site pursuant to this Agreement or the Use Agreement;
provided, however, in no event shall The Phillies' obtaining of any such policy of title insurance
constitute a waiver, release or relinquishment of The Phillies' right to rely on the foregoing
representations, warranties, covenants and agreements of the City relative to title to the Project
Site and The Phillies shall be entitled to rely on the foregoing representations, warranties,
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covenants and agreements of the City, notwithstanding that The Phillies elects at any time to
obtain title insurance with respect to its interest in and to the Project Site.
Section 3.04. Phillies Site Investigation; Phillies Evaluation Period. From and after
the Dated Date and during the Phillies Evaluation Period, The Phillies and its consultants,
engineers, contractors, employees, agents and representatives shall have the unrestricted right to
enter on the Exhibit "A" Property and perform the Phillies Site Investigation, as The Phillies
shall determine in its discretion, and to examine, inspect and evaluate all information obtained by
The Phillies through the Phillies Site Investigation or otherwise provided to The Phillies by the
City or others pursuant to the terms of this Agreement, including without limitation the results of
the City Environmental Study, the Phillies Environmental Investigation and the City
Geotechnical Investigation. The Phillies Site Investigation performed hereunder shall be for the
benefit of The Phillies and for no other Person (other than the City with respect to the Phillies
Environmental Investigation as provided in Section 3.05 hereof) and no such Phillies Site
Investigation or evaluation of information received as a result of such Phillies Site Investigation
shall constitute a waiver or relinquishment of The Phillies' right to rely on any of the covenants,
representations, warranties, and agreement of the City made herein or in any other agreement or
understanding between The Phillies and the City, including, without limitation, the Use
Agreement, and The Phillies shall be entitled to rely on all of such covenants, representations,
warranties, and agreements of the City, except only to the extent that the results of the Phillies
Site Investigation expressly contradict the City's representations and warranties. The City
covenants and agrees that it shall cooperate in good faith with The Phillies in The Phillies'
evaluation of the Project Site and shall execute all documents or perform such other acts, as are
reasonably necessary or required to enable The Phillies to satisfactorily complete the Phillies Site
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Investigation and evaluation of the Project Site and shall provide to The Phillies and its
consultants any information or documents reasonably required by The Phillies and in the City's
or its consultants' possession which would assist The Phillies in such evaluation and preparation.
The Phillies, in its discretion, shall have the right to terminate this Agreement at any time prior to
the expiration of the Phillies Evaluation Period in the event that The Phillies determines that the
Project Site or the development, construction and completion of the Community Sports Complex
thereon is not economically feasible or would result in unreasonable delay in the development,
construction or completion of the Project as a result of conditions disclosed or determined by
The Phillies Site Investigation. The Phillies will restore any disturbance to the Exhibit "A"
Property as a result of the Phillies Site Investigation and will indemnify and hold harmless the
City against any damage and liability occasioned by any claim as a result of the Phillies Site
Investigation (other than claims that may result from the Phillies Environmental Investigation,
including without limitation any claims with respect to any release of Hazardous Materials)
unless such claims arise as a result of the gross negligence or willful misconduct of the City, its
agents, representatives, employees or independent contractors; provided, however, The Phillies
shall have no duty to effect any remediation required by any Legal Requirements or otherwise.
Section 3.05. City Geotechnical Investigation. The City shall perform the City
Geotechnical Investigation so as to have the City Geotechnical Investigation fully completed on
or before March 15,2001. The City shall supply to The Phillies, on or before March 15,2001, in
connection with The Phillies completion of the Phillies Site Investigation as provided in Section
3.04 hereof, (i) a copy of the City's agreement with its geotechnical consultants performing the
City Geotechnical Investigation, which shall include a description of the scope of work therein
undertaken and shall acknowledge therein that The Phillies is an intended third party beneficiary
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of such consultancy agreement and any reports or recommendations issued in connection with
the City Geotechnical Investigation and (ii) original signed and sealed copies of the final reports
and recommendations of the geotechnical consultants, which may be used and, subject to the
acknowledgment set forth in the immediately following sentence, relied upon by, and shall be
certified to, The Phillies (collectively, the "City Geotechnical Report"). The Phillies
acknowledges that in entering into any agreement with a consultant for the City Geotechnical
Investigation Program on behalf of The Phillies, the City is not warranting (and has not
warranted) the specific appropriateness or usefulness of the particular scope of work proposed by
the consultant and approved by The Phillies and that the City is not responsible for the accuracy
or reliability of the results of the City Geotechnical Investigation or any negligence on the part of
the consultant with respect to the analysis, recommendations, or results of that investigation.
The Phillies shall reimburse the City in the amount of $15,000 for the cost of the City
Geotechnical Investigation and the City shall pay the remainder of the cost of the City
Geotechnical Investigation.
Section 3.06. Phillies Environmental Investigation Program; Phillies Environmental
Investigation. The Phillies shall perform the Phillies Environmental Investigation so as to have
the Phillies Environmental Investigation fully completed on or before the date therefor
established in the Project Schedule. Prior to commencement of the Phillies Environmental
Investigation, The Phillies shall submit to the City (i) the proposed Phillies Environmental
Investigation Program which shall set forth the anticipated scope of work to be conducted on the
Exhibit "A" Property and shall include a copy of The Phillies' agreement with the environmental
consultants performing the Phillies Environmental Investigation, which shall acknowledge
therein that the City is an intended third party beneficiary of such consultancy agreement and (ii)
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a site safety plan relative to the Exhibit "A" Property and the performance of such work. The
City shall have a period of ten (10) Business Days from receipt of the Phillies Environmental
Investigation Program within which to approve same, which approval shall not be unreasonably
withheld. In reviewing the Phillies Environmental Investigation Program, the City shall be
limited to assuring itself that (i) each environmental consultancy agreement or work proposal and
the findings of The Phillies environmental consultants provide for the City's being a third party
intended beneficiary thereof, (ii) the scope of work is designed to comply with applicable
Environmental Laws and minimize the potential for releases of Hazardous Materials, (iii) each
environmental consultancy agreement or work proposal shall provide that the environmental
consultant thereunder shall indemnify and hold the City harmless against any liability for
negligence or intentional wrongful acts or omissions of the environmental consultant, its
employees, agents and subcontractors, and (iv) the environmental consultant under each
environmental consultancy agreement has the financial capability and/or carries liability
insurance reasonably sufficient to support its indemnification obligations under its consultancy
agreement. The City acknowledges that in entering into any agreement with a consultant for the
Phillies Environmental Investigation Program under which the City is a named intended
beneficiary, The Phillies is not warranting (and has not warranted) the specific appropriateness or
usefulness of the particular scope of work proposed by the consultant and that The Phillies is not
responsible for the accuracy or reliability of the results of the Phillies Environmental
Investigation or any negligence on the part of the consultant with respect to the analysis,
recommendations, or results of that investigation. The Phillies shall pay the cost of performing
such Phillies Environmental Investigation, which shall be credited toward the Phillies Capital
Contribution. Notwithstanding anything contained herein to the contrary, the results of the
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Phillies Environmental Investigation must be in all res}Jects acceptable to The Phillies, in its
discretion.
Section 3.07. Site Work Plan. Upon receipt of the City Geotechnical Report and the
results of the Phillies Environmental Investigation, The Phillies shall have until the date
established therefor in the Project Schedule, within which to prepare the Site Work Plan setting
forth the scope of work necessary or appropriate for the completion of the Site Work and all
remediation of any and all geotechnical, geologic, subsurface, or soil defects, as identified in the
City Geotechnical Report or otherwise necessary to construct the Community Sports Complex
and remediation required by Environmental Laws for environmental conditions or hazards
identified by the Phillies Environmental Investigation or otherwise necessary for completion of
the Project. Upon completion of the Site Work Plan, The Phillies shall submit the same to the
City for review and approval by the City on or before the date established by the Project
Schedule, which approval by the City shall not be unreasonably withheld or delayed.
Section 3.08. Site Work; Remediation. The City covenants and agrees that on or
before the date established by the Project Schedule, the City shall complete the Site Work in
accordance with the Site Work Plan. For purposes of this Section 3.08, the installation,
maintenance and operation of any equipment and structures required by Environmental Laws for
long-term remediation (such as methane venting and monitoring) shall satisfy the requirement as
to that portion (i.e., long term remediation) of the Site Work by the deadline specified; provided,
however, in the event that such installation, maintenance and operation (i) impose any liability
on The Phillies or (ii) will interfere with the commencement and completion of the Project
and/or the use of the Community Sports Complex by The Phillies pursuant to the Use
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Agreement, all as determined by The Phillies in its discretion, The Phillies shall have the right to
terminate this Agreement after the determination of the requirements for the Site Work,
including without limitation the Site Work Plan, and prior to the commencement of the Site
Work, by giving written notice to the City within ten (10) Business Days of such determination
pursuant to the notice provisions hereof and consistent with the provisions of Section 14.06. The
Phillies shall be responsible for and pay up to a maximum for the Phillies Site Work Financial
Contribution of $250,000, toward the Site Work Cost and then the City shall pay any remaining
Site Work Cost, up to a maximum for the City Site Work Financial Contribution of $250,000.
To the extent that either party determines prior to the Project Site Acceptability Determination
Date that the Site Work Cost and/or adverse impacts on Project Cost are reasonably expected to
exceed $500,000 in the aggregate, then either party may terminate this Agreement by giving
written notice within ten (10) Business Days of such determination to the other pursuant to the
notice provisions hereof and consistent with Section 14.06.
Section 3.09. Environmental Matters. Notwithstanding anything contained herein to the
contrary, the City shall and does hereby fully release, hold harmless and, to the fullest extent
permitted by law, indemnify The Phillies, its partners, employees, agents, representatives,
consultants, and contractors, as a result of any liability, claim, damage, injury (whether to person
or property) or obligation (collectively, "Environmental Liabilities") arising from the presence
and/or release of any Hazardous Materials from an Existing Environmental Condition or as a
result of any violation or breach of any Environmental Laws occurring as a result of the Phillies
Site Investigation (including without limitation the performance of any portion of the Phillies
Environmental Investigation) by or on behalf of The Phillies pursuant to Section 3.04 and
Section 3.06 hereof, provided that the City has approved the Phillies Environmental Investigation
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Program as provided in Section 3.06, or with respect to any Site Work (including remediation
pursuant to Section 3.08 hereof). It is the intent of the parties that, as between the City and The
Phillies (including its partners, employees, agents, representatives, consultants, and contractors),
the City shall be responsible for all claims, liabilities, injuries (whether to person or property) or
obligations arising from any Existing Environmental Condition on the Project Site and the City
shall take such actions as are necessary or required to address or remediate (if required by any
Legal Requirement) or otherwise assume responsibility for any release of Hazardous Materials or
violation or breach of Environmental Laws with respect to an Existing Environmental Condition,
which action may include, without limitation, the City proceeding against any prior owner of the
Project Site or any other potentially responsible party (other than The Phillies, its partners,
employees, agents, representatives, consultants, and contractors) for remediation or clean-up of
any such Existing Environmental Condition; provided, however, that the foregoing is not
intended to create any rights in any party other than The Phillies or Persons claiming through
The Phillies, and there are no other intended beneficiaries (including any prior owner of the
Project Site or other potentially responsible party) of such provision. The parties agree that the
foregoing provisions relating to the City's responsibility and obligation as to The Phillies and
Persons claiming through The Phillies shall be enforceable (i) by The Phillies for so long as any
Action may be brought against The Phillies or Persons claiming by or through The Phillies in
connection with any Existing Environmental Condition and (ii) by specific performance as
provided in Section 14.02(d) or other equitable relief, and the City consents to the equitable
jurisdiction of a court of competent jurisdiction relative thereto. This Section 3.09 shall survive
the termination or expiration of this Agreement for whatever reason including without limitation
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the election of either party not to proceed with development of the Project on the Exhibit "A"
Property .
Section 3.10. Alternative Site. Notwithstanding anything contained herein to the
contrary, if it is determined pursuant to Section 3.02 that the Exhibit "A" Property is not an
acceptable site for the Community Sports Complex, then the parties agree that they shall use
their best efforts, and will cooperate with each other, to: (i) find a mutually acceptable alternative
site as soon as is reasonably possible and (ii), if they are successful in doing so, agree on such
amendments and modifications to this Agreement and the Use Agreement, including, without
limitation, a modification to the legal description attached as Exhibit "A" to this Agreement, as
are reasonably required, to effectuate the substitution of such alternative site as the Project Site.
In the event that these efforts are not successful after ninety (90) days from the date either party
gives notice to the other that the Exhibit "A" Property is not acceptable, then either party may
terminate this Agreement by delivery of written notice to the other of its election to terminate
this Agreement. It is agreed by and between the parties that Section 20.1.2 of the Use Agreement
is hereby modified and amended so as to modify the date of February 15,2001 set forth therein,
to be the Project Site Acceptability Determination Date. Upon the parties determining that the
Exhibit "A" Property is not suitable pursuant to Section 3.02 and substitution thereof of an
alternative site pursuant to this Section 3.10, then, except with respect to the date of acquisition
of title to the Exhibit "A" Property as provided in Section 3.03 hereof, all references herein to the
Exhibit "A" Property shall be deemed to be references to said alternative site, which shall be the
"Project Site." With respect to any such alternative Project Site, The Phillies shall have all of the
same investigation, inspection and due diligence rights, including without limitation the Phillies
Site Investigation and Environmental Investigation and the City shall have the same limitations
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on its financial obligations for Site Work Cost and Infrastructure Improvements Cost as provided
in this Agreement as it would have had for the Exhibit "A" Property.
Section 3.11. Right of Entry. The City covenants and agrees that at all times as this
Agreement shall remain in full force and effect it shall make available the Project Site to The
Phillies, its Project Architect(s), Construction Manager, Contractors, employees, agents,
independent contractors, invitees and licensees, for the purpose of conducting and completing the
Phillies Environmental Investigation, the Phillies Site Investigation, and the construction and
development of the Community Sports Complex, and, to the extent not prohibited by, and
subject to, applicable Legal Requirements, the City shall execute and deliver all such rights of
entry, temporary easements, authorizations, or other items, as The Phillies shall require in order
to conduct such work on the Project Site.
ARTICLE 4
LAND USE REGULATION
Section 4.01. Zoning. The City represents and warrants to The Phillies that as of the
Dated Date the zoning classification for the Exhibit "A" Property is "Institutional" and such
classification permits, without the necessity of obtaining a variance or special exception, the
development and use of the Community Sports Complex as contemplated by this Agreement and
the Use Agreement.
Section 4.02. Comprehensive Plan. The City represents and warrants to The Phillies
that the development and use of the Community Sports Complex on the Exhibit "A" Property as
contemplated by this Agreement and the Use Agreement are consistent with the City's
Comprehensive Plan.
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Section 4.03. Development of Regional Impact. The City represents and warrants to
The Phillies that the Community Sports Complex as contemplated by this Agreement is not a
"development of regional impact" within the meaning of Section 380.06, Florida Statutes.
Section 4.04. Governmental Approvals.
(a) Applications; Payment of Fees. The Phillies shall prepare and submit, or
cause to be prepared and submitted, to the appropriate governmental authorities,
including the City, such applications as are necessary for any and all Governmental
Approvals for the Project, and shall bear all costs of preparing such applications,
provided that, to the extent not prohibited by applicable Legal Requirements, the City
agrees to timely payor waive payment of any and all applicable application, inspection,
regulatory or other charges pertaining to the Project or the permitting thereof, including,
but not limited to, any such permit, review, application, inspection, regulatory or other
charges relating thereto. In those cases where the City is prohibited by applicable Legal
Requirements from paying or waiving any such charge, then The Phillies shall pay such
charge, which shall be deemed paid from the Phillies Capital Contribution.
(b) City's Facilitation. The City covenants and agrees that it shall facilitate, and,
to the fullest extent allowed by the Legal Requirements applicable thereto, expedite The
Phillies obtaining all necessary Governmental Approvals required for the construction
and completion of the Community Sports Complex.
(c) Approvals for Infrastructure Improvements. The City shall prepare and
submit the applications for all necessary Governmental Approvals or permits for the
Infrastructure Improvements and shall bear all costs of preparing such applications,
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applying for and obtaining such permits and pay any and all applicable permit, review,
application, inspection, regulatory or charges pertaining to the Infrastructure
Improvements.
(d) No Adverse Impact on City's Regulatory Authority. The City's duties,
obligations, or responsibilities under any section of this Agreement, specifically including
but not limited to this Section 4.04 do not adversely affect the City's right, duty,
obligation, authority and power to act in its governmental or regulatory capacity in
accordance with applicable laws, ordinances, codes or other building or project
regulation.
(e) City Procedures. Any required permitting, licensing or other regulatory
approvals by the City shall be subject to the established procedures and requirements of
the City with respect to review and permitting of a project of a similar or comparable
nature, size and scope to the Project; provided, however, the City covenants and agrees
that it shall expedite such process to the fullest extent legally permissible so as to be
accomplished within the time frames contemplated by the provisions of this Agreement.
(f) City Assistance with other Governmental Agencies. To the extent that any
required permitting, licensing or other regulatory approvals are required by governmental
agencies other than the City (for example, but not limited to, the Florida Department of
Environmental Protection, the Southwest Florida Water Management District, the U.S.
Army Corps of Engineers, or any other state, local or federal agency having jurisdiction
over the permitting, licensing or approval of the Project), the City shall assist The
Phillies, to the fullest extent possible and as permitted by applicable Legal Requirements,
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III complying with any and all requirements necessary to obtain such regulatory
approvals.
(g) Impact Fees. Notwithstanding any other provisions of this Agreement, the
City waives and agrees, to the extent not prohibited by applicable Legal Requirements,
that it shall be estopped from imposing on or against The Phillies any impact fees
imposed by the City on or with respect to the Project. In addition, the City hereby
covenants and agrees that upon full execution of this Agreement by the parties hereto that
the City has thereby conclusively determined that The Phillies' rights as provided herein,
and pursuant to the Use Agreement, shall be vested under Florida law and enforceable by
The Phillies as such.
(h) Governmental Coordination. Notwithstanding anything in the foregoing to
the contrary, the City acknowledges the need to expedite the process for review and
issuance of any Governmental Approvals and the City agrees to use its best efforts to
coordinate and expedite its review with any review or approvals by the City or other
governmental entities. The City further agrees to urge other governmental entities and
any boards, bodies or agencies of the City or other governmental entities to hold special
meetings and special ordered agenda items, to the fullest extent permitted by law, for
consideration of matters pertaining to the Project so as to expedite review, consideration
and decision with respect thereto.
The City's obligations to expedite the Governmental Approvals as contemplated in this Section
4.04 shall be conditioned upon any applications for Government Approvals being timely and
completely prepared and filed in accordance with applicable Legal Requirements.
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Section 4.05. Concurrency. The parties hereto recognize and acknowledge that Florida
law (specifically, Part II, Chapter 163, Florida Statutes, and Rule 9J-5, Florida Administrative
Code, collectively the "Growth Management Act") imposes restrictions on development if
adequate public improvements are not available concurrently with that development to absorb
and handle the demand on public services caused by that development. The City represents to
The Phillies that it has a system for monitoring the effects of development on public services
within the City, and the City specifically finds, and represents and warrants to The Phillies, that
there either are, or will be, adequate public improvements concurrent with the Substantial
Completion of the Community Sports Complex, which shall include without limitation adequate
vehicular and pedestrian ingress, egress and access to and from the Project Site and all adjacent
public rights of way, which public rights of way shall be sufficient to handle all increased traffic
flow as a result of the use of the Community Sports Complex, as well as adequate capacity
through off-site storm water run-off drainage systems sufficient to handle all storm water run-off
and drainage (other than on-site retention required by the Southwest Florida Water Management
District for handling increased storm water run-off and drainage as a result of the operation of
the completed Community Sports Complex only and not as a result of any inability of current
off-site facilities to handle the current storm water run-off or drainage needs of the Project Site)
from the Project Site in compliance with all Legal Requirements without adding incremental cost
to the development thereof by The Phillies or for on-site improvements. In the event that there is
an incremental cost increase as a result of the necessity to construct such facilities, whether on-
site or off-site (including without limitation anyon-site facility or the expansion of anyon-site
facility to adequately handle current storm water run-off or drainage levels which are not capable
of being handled by existing current off-site facilities servicing the Project Site) in addition to,
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and not a part of, the Infrastructure Improvements which the City is obligated to construct
pursuant to the provisions of ARTICLE 6, and the City fails or refuses to pay for such
incremental cost increase, then The Phillies shall have the right to terminate this Agreement upon
ten (10) Business Days' written notice to the City in accordance with the notice provisions hereof
and consistent with Section 14.06 hereof. The City represents and warrants and to The Phillies
that as of the Dated Date the Project as contemplated by this Agreement does not require any
reservation of capacity or the need to seek any approvals as a result of the concurrency
requirements set forth above from any governmental agency, including, without limitation, the
Florida Department of Community Affairs. If legally obligated in the future to comply with such
requirements, the City covenants and agrees that it will obtain a concurrency compliance
certificate or other similar document by whatever name known and a reservation of services
capacity under the City's concurrency management system, and does further agree to maintain
such certificate and reservation. In the event that the City shall obtain a concurrency compliance
certificate and a reservation of services capacity, The Phillies covenants and agrees with the City
not to thereafter undertake any action or fail to take any action which would cause the City to
revoke or invalidate the concurrency compliance certificate or the reservation of services
capacity.
Section 4.06. Not a Development Order or Permit. The parties do hereby acknowledge,
agree and represent that this Agreement is not intended to be and should not be construed or
deemed to be a "development order" or "development permit" within the meaning of those terms
in Section 163.3164, Florida Statutes.
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Section 4.07. Right of Termination. Notwithstanding any other provisions of this
Agreement, should any of the foregoing covenants to be performed by the City, or any other
governmental agency, pursuant to this ARTICLE 4, not be performed in accordance therewith, or
in the event of a breach of any of the foregoing representations and warranties, The Phillies may
terminate this Agreement by giving written notice to the City consistent with the provisions of
Section 14.06 hereof. Such right of termination shall be in addition to and not in lieu of such
other rights of termination as provided in ARTICLE 14 of, or elsewhere in, this Agreement.
Upon such termination, the City shall reimburse The Phillies for all Pre-Construction Costs
incurred by The Phillies as of the date of such termination, or which later become due as a result
of architectural, engineering and/or design services performed prior to the date of such
termination.
ARTICLE 5
PROJECT ARCHITECT(S); PLANS AND SPECIFICATIONS
Section 5.01. Selection of Project Architect(s). On or before March 15, 2001, The
Phillies will select the Project Architect(s) for the Project, which selection of Project Architect(s)
shall be accomplished pursuant to and in accordance with the requirements of the Consultants
Competitive Negotiation Act. Upon selection of the Project Architect(s), The Phillies will
provide written notice to the City of the Project Architect(s) which The Phillies has selected and
describe the procedures used by The Phillies in making the selection of the Project Architect( s).
In the event that The Phillies determines, at any time or from time to time to terminate the
services of any such Project Architect(s) or replace the same with new Project Architect(s), as
selected by The Phillies, in its discretion, then The Phillies shall provide to the City written
notice of such termination and/or replacement. The selection of any replacement Project
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Architect(s) shall be accomplished in accordance with the requirements of the Consultants
Competitive Negotiation Act. The Phillies shall engage the selected Project Architect(s) and,
except as otherwise provided herein in the event of termination, be responsible for the payment
of the fees and expenses of the Project Architect(s), the amount of which shall be credited toward
the Phillies Capital Contribution. The City hereby acknowledges and agrees that the selection of
the Project Architect(s) is the sole responsibility of, and within the discretion of, The Phillies,
and the City will not participate, and has not previously participated, in such selection by The
Phillies. The parties hereto mutually acknowledge and agree the Project Architect(s) are not,
individually or collectively, agents or representatives, either expressed or implied, of the City.
The Phillies agrees to require the Project Architect(s) to seal and certify to both The Phillies and
the City, as the owner of the Project Site and the Community Sports Complex, the Site Plan as
contemplated by Section 5.02 and the Plans and Specifications as contemplated by Section 5.03.
Section 5.02. Scope of Work; Site Plan.
(a) Submission of Scope of Work and Site Plan; Scope of Work. On or before a
date established in the Project Schedule, The Phillies shall prepare or cause to be
prepared the Scope of Work and a Site Plan, for the Community Sports Complex and
shall submit the same to the City. Upon submission thereof, the City shall have a period
of time of not more than fifteen (15) Business Days from the date of submission by The
Phillies of the Scope of Work to conduct and complete its review of the Scope of Work
and advise The Phillies of the acceptability thereof. The review provided in the foregoing
sentence shall be limited to the City's confirmation that the Scope of Work is in material
compliance with the terms of this Agreement. In the event that the City for any reason
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determines that the Scope of Work does not meet the requirements of the immediately
preceding sentence, the City shall notify The Phillies in writing, within such fifteen (15)
Business Day period of the specific and detailed reasons therefor and the City and The
Phillies shall then expeditiously, diligently, and reasonably meet to resolve such
objections. To the extent that the parties can not agree on resolution of any such
objection, such matter shall be submitted to Expedited ADR for determination. In the
event that the City fails or refuses to respond within such fifteen (15) Business Day
period then the Scope of Work shall be deemed approved by the City. Upon acceptance
of the Scope of Work, the same shall be initialed by the Authorized Representatives of
each party (unless deemed to be accepted upon the City's failure or refusal to timely
respond as herein provided) and, in any event, attached to this Agreement as Exhibit "R"
hereto and shall be deemed a part hereof as if fully set forth herein. On submission of the
Scope of Work to the City, the Scope of Work shall be presumed to comply with the
provisions of this Agreement and the City shall clearly demonstrate, if City indicates its
disapproval, that the Scope of Work materially varies from the requirements of this
Agreement.
(b) Site Plan Review. The City review of the submitted Site Plan shall be in
accordance with its customary procedures consistent with the City's Community
Development Code for review of a site plan for a project in the exercise of the City's
governmental and regulatory powers relative to site plan review and approval, including
any required review, proceedings, or public hearings by any City board, body or agency
as provided by the City's Community Development Code. The City, however, agrees to
commence, undertake and complete such review as expeditiously as possible under the
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circumstances and to the fullest extent legally permissible. The City further agrees to urge
any boards, bodies or agencies of the City necessary for completing review and approval
of the Site Plan to hold special meetings and special ordered agenda items, to the fullest
extent permitted by law, so as to expedite review, consideration and decision with respect
thereto.
(c) Flexible Site Plan Review. Notwithstanding the foregoing, in the event that
the height of any portion of the Community Sports Complex is to exceed fifty (50) feet,
The Phillies shall submit the Site Plan for flexible site plan review by the City's
Community Development Board as required in the City's Community Development
Code, subject to the time frames for flexible site plan review of the Site Plan as provided
in the City's Community Development Code and the schedule of the City's Community
Development Board.
Section 5.03. Conceptual Documents; Plans and Specifications; and Building
Permits.
(a) Conceptual Drawings and Plans. The Phillies covenants and agrees that it
shall submit to the City, as the same are completed, any Conceptual Documents for the
purpose of allowing the City to review, comment on, and consult with and give input to
The Phillies with respect to, the Conceptual Documents, including without limitation
elements of the Community Sports Complex which are cosmetic or aesthetic in nature.
The Phillies covenants and agrees that it shall give due consideration to all comments,
suggestions or recommendations by the City with respect to the Conceptual Documents,
including without limitation the exterior appearance of the Community Sports Complex
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and configuration of the Community Sports Complex on the Project Site and will work
with the City in good faith relative thereto, provided, that, the foregoing shall not cause
undue delay in the commencement, continuation or completion of the Project within the
time frames established by the Project Schedule. To the extent that The Phillies shall
agree to any City proposed change to the Conceptual Drawings or with respect to the
exterior appearance of the Community Sports Complex or the configuration of the
Community Sports Complex which change results in a net increase in the cost of all or
any portion of the Project, the City shall be responsible for and agrees to pay the amount
of such net increase, which shall be in addition to the City's Capital Contribution, the City
Site Work Financial Contribution, and the other financial obligations of the City under
this Agreement. On or before the date therefor established by the Project Schedule, The
Phillies shall submit to the City final Conceptual Documents, after giving due
consideration to changes suggested by the City as hereinabove provided, for the purpose
of allowing the City to wholly accept or reject the same within twenty-one (21) days from
the City's receipt thereof. The City shall deliver to The Phillies written notice of such
acceptance or rejection within such twenty-one (21) day period. In the event that the City
gives written notice of its approval of the submitted Conceptual Drawings or fails or
refuses to give written notice of acceptance or rejection of the submitted final Conceptual
Drawings within said twenty-one (21) day period, such final Conceptual Drawings as
submitted by The Phillies shall be deemed approved by the City for all purposes
hereunder. If the City rejects The Phillies' final Conceptual Documents, The Phillies
shall have the right to terminate this Agreement by giving written notice to the City of
such election to terminate within ten (10) Business Days of The Phillies' receipt of the
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City's written notice of rejection and upon such termination, the City shall be obligated to
pay and reimburse The Phillies for the fees and costs incurred by The Phillies for (i)
architectural, engineering and design services in connection with the Community Sports
Complex and/or the Project, and (ii) environmental consultants, and geotechnical
consultants in connection with the Phillies Site Investigation, through the date of The
Phillies' termination notice or which are subsequently incurred as a result of work
performed by such third parties on behalf of The Phillies prior to such date of
termination, in which event this Agreement shall terminate, except to the extent otherwise
expressly provided herein or in connection with the City's reimbursement and payment
obligations as hereinabove provided.
(b) Preparation of Construction Documents. The Phillies shall prepare or cause
the Project Architect(s) to prepare the Construction Documents in sufficient detail and
description of the Community Sports Complex and its elements so as to bid the
construction of the Community Sports Complex and all of its elements and to support
such Construction Documents. Such Construction Documents shall be generally
consistent with the Scope of Work and the Site Plan. The cost of such preparation shall
be borne by The Phillies; provided, however, any costs attendant to obtaining the
approvals, imposed by applicable Legal Requirements, of the Construction Documents
shall be borne by the City.
(c) Project Schedule. The parties have previously agreed upon a preliminary
Project Schedule for completion of the Project, which is attached as Exhibit "G" to this
Agreement and which includes both a Commencement Date and a Completion Date. In
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connection with its preparation of the Construction Documents, the Project Architect(s)
shall prepare, if deemed necessary by the Project Architect(s) (including with limitation
as a result of selecting an alternate Project Site as provided in Section 3.10), a revised
Project Schedule for completion of the Project; provided, however, the Project
Architect(s) will consult with the City regarding, and the City shall have the right to
approve within five (5) Business Days of submission thereof to the City, which approval
shall not be unreasonably withheld, any changes or revisions to the Project Schedule
which have any impact on any work to be performed by the City pursuant to the terms of
this Agreement, including without limitation the Site Work and the installation and
construction of the Infrastructure Improvements. If the City objects to any change or
revision to the Project Schedule for which the City has a right of approval, then the City
and The Phillies shall expeditiously, diligently, and reasonably meet to resolve such
objections. To the extent that the parties can not agree on resolution of any such
objection, such matter shall be submitted to Expedited ADR for determination. If the
City fails or refuses to approve or object in writing to proposed changes or revisions for
which it has a right of approval within said five (5) Business Day period, such changes or
revisions shall be deemed approved. In the event of the preparation of a revised Project
Schedule, the Project Architect(s) shall submit the same to the parties and the parties
agree to initial such revised Project Schedule and attach it to this Agreement as, and in
place of the existing, Exhibit "G".
(d) City's Consent. The City does hereby consent to the preparation of the
Construction Documents, and any revisions thereto, by the Project Architect(s), and the
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City will not withhold approval of the Construction Documents required under any
applicable Legal Requirement because they were prepared by the Project Architect(s).
(e) Compliance with Legal Requirements. Unless waived by the City to the
extent permissible by applicable Legal Requirements, the Construction Documents shall
be prepared so as to comply with the City's Legal Requirements relative to development
and construction.
(f) Prerequisite to Issuance of Building Permits. The parties acknowledge that
City review and approval of the Construction Documents is a prerequisite under
applicable Legal Requirements for issuance of the initial Building Permits for the
Community Sports Complex, or any part thereof.
(g) Submission and Review. Upon The Phillies submitting the Construction
Documents to the City for review, the City agrees to diligently proceed with and
complete its review of the Construction Documents under the standard specified in
Section 5.03(h) below and respond to The Phillies as soon as reasonably possible after
receipt thereof, but in no event later than fifteen (15) Business Days thereafter. If the
City gives written notice of specific objections to or deficiencies in the Construction
Documents under the standard specified in Section 5.03(h) below, then the City and The
Phillies shall expeditiously, diligently and reasonably negotiate to resolve such
objections. If The Phillies does not dispute the objections to any proposed Construction
Documents contained in any notice from the City, it shall submit revised Construction
Documents satisfying such objections. Any changes in the Construction Documents
made by The Phillies in response to such a notice shall be made without charge to the
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City. If the Construction Documents submitted to the City by The Phillies substantially
comply with the standard of review set forth in Section 5.03(h) below, the City shall
approve the Construction Documents as submitted. Once so approved the Construction
Documents (as they may from time to time be changed pursuant to Section 5.04) shall be
referred to as the "Community Sports Complex Plans and Specifications."
(h) Standard of Review. The standard of review for the City's approval rights
with respect to the Project shall be that the Project and all of its elements shall be
constructed in accordance and compliance with applicable Legal Requirements, including
applicable building codes, and otherwise in accordance with this Agreement. Therefore,
in its review of the Construction Documents, the Community Sports Complex Plans and
Specifications, the City shall approve or object only to those matters which fall within the
scope of the review outlined above or which are within the scope of review pursuant to
the City's Legal Requirements relative to such review and approval and issuance of the
Building Permits.
(i) Cooperation of Parties. The parties recognize and agree that during the
process of review and approval provided for in this Agreement the design of the
Community Sports Complex may be subject to change and modification as may be either
agreed to by the parties or required as provided herein or by the appropriate regulatory
authority having jurisdiction thereof, and should any changes be necessary or desirable
the parties agree that they will act expeditiously and reasonably in reviewing and
approving or disapproving any changes or modifications to the Project. As part of the
City's cooperation with The Phillies, The City agrees to provide such mitigation
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measures as may be reasonable under all circumstances In order to eliminate any
impediment to the completion of the Project resulting from any geotechnical, geologic,
subsurface, soil, and/or environmental condition of or to the Project Site, or adjoining
properties, in a timely manner and on budget, at no further cost to The Phillies.
G) Building Permits. In connection with its submission of the Construction
Documents for approval as provided herein, The Phillies shall also prepare and submit, or
cause to be prepared and submitted, to the City, such applications as are necessary for the
issuance by the City of Building Permits for the construction and completion of the
Community Sports Complex, and shall bear all costs of preparing such applications,
provided that, to the extent not prohibited by applicable Legal Requirements, the City
agrees to timely payor waive payment of any and all applicable application, inspection,
regulatory or other charges pertaining to the Building Permits. In those cases where the
City is prohibited by applicable Legal Requirements from paying or waiving any such
charge, then The Phillies shall pay such charge. The City covenants and agrees that it
shall facilitate, and, to the fullest extent allowed by the Legal Requirements applicable
thereto, expedite The Phillies obtaining the Building Permits required for the construction
and completion of the Community Sports Complex and the City agrees to use its best
efforts to coordinate and expedite any review or approvals by the City and its respective
departments, boards and/or agencies relative to the issuance of the Building Permits.
(k) Timely Submission. The City's obligation to complete or expedite any review,
consent or approval within the time periods specified in this Section 5.03 shall be
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conditioned upon any applications for the Building Permits being timely and completely
prepared and filed in accordance with applicable Legal Requirements.
Section 5.04. Changes to Community Sports Complex Plans and Specifications. If
during the course of completing the Project it shall appear necessary or desirable to The Phillies
to materially deviate from the Community Sports Complex Plans and Specifications, The Phillies
shall so notify the City in writing, for the City's information. In the event that such change or
modification impacts the construction time and/or the construction cost, then said change shall be
evidenced by a change order executed by The Phillies, which shall enumerate the specific change
to occur, the costs of such change, and an appropriate extension of the Completion Date, if
applicable. Any such change orders resulting in an increased cost shall be borne by The Phillies,
provided that any such increased costs paid by The Phillies as a result of a change order shall not
be credited against payment of the Phillies' Capital Contribution as provided in Section 8.06
hereof. The parties agree that The Phillies shall have the right to make such change orders as it
shall determine, in its discretion, provided that the Project stays within the overall concept of the
Community Sports Complex as approved and contemplated by this Agreement and such change
does not result in a materially significant deviation from the exterior appearance of the
Community Sports Complex as set forth in the Conceptual Drawings or the configuration of the
Community Sports Complex on the Project Site as provided in the Site Plan. However, in the
event of any such material change which would require new Building Permits, The Phillies shall
submit such changes, amendments or revisions to the Community Sports Complex Plans and
Specifications, as are necessary to reflect such change, to the City for review as may be required
by applicable Legal Requirements.
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ARTICLE 6
INFRASTRUCTURE IMPROVEMENTS
Section 6.01. Infrastructure Improvements. The City agrees to or cause others to plan,
design, construct, install, equip and complete infrastructure improvements necessary to construct,
develop, use and/or operate the Community Sports Complex (which improvements shall include,
without limitation, access permits and/or approvals [including without limitation vehicular and
pedestrian access to and from the Project Site and necessary adjoining public rights of way], curb
cuts, turning, storage and/or acceleration/deceleration lanes, cross-walks, traffic lights or other
traffic control devices, and such other items as may be identified in conjunction with the
development of the Infrastructure Improvements Plans and Specifications) (collectively, the
"Infrastructure Improvements") so that Substantial Completion of the Infrastructure
Improvements in accordance with the Infrastructure Improvements Plans and Specifications
occurs no later than the Infrastructure Improvements Completion Date. An itemization of the
Infrastructure Improvements which are currently contemplated to be required for the completion
and operation of the Community Sports Complex on the Exhibit "A" Property is attached hereto
as Exhibit "I". If an alternative Project Site is selected pursuant to the terms of Section 3.10, or if
it is determined that any additional Infrastructure Improvements beyond those set forth on
Exhibit "I" are necessary or required in order to complete the construction of or thereafter
operate the Community Sports Complex, the parties shall agree, in connection with such
alternative Project Site selection, or such additional Infrastructure Improvements, as to a
replacement or supplemental itemization of the Infrastructure Improvements sufficient to address
the needs and requirements of such alternative Project Site, or such additional Infrastructure
Improvements, and such replacement or supplemental itemization of Infrastructure
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Improvements shall be initialed by the parties and attached hereto as, and in replacement of or
supplement to, the existing Exhibit "I". The City agrees to coordinate with The Phillies the
planning, design, construction and installation of the Infrastructure Improvements with the
planning, design, construction and installation of the Community Sports Complex so as not to
delay the completion of construction beyond the Completion Date established in the Project
Schedule. The Infrastructure Improvements Completion Schedule for constructing and installing
such Infrastructure Improvements shall be prepared by the City and submitted to The Phillies for
review and approval, which shall not be unreasonably withheld or delayed, by the date therefor
set forth in the Project Schedule. To the extent that the parties can not agree on any replacement
or supplemental itemization of the Infrastructure Improvements, such matter shall be submitted
to Expedited ADR for determination. If the cost to the City of effecting the Infrastructure
Improvements that the parties agree to be required shall be reasonably estimated to exceed
$300,000, the City may on or before the (i) date provided for such determination as set forth in
the Project Schedule or (ii) in the event an alternative Project Site is selected pursuant to the
provisions of Section 3.10 hereof or additional Infrastructure Improvements are determined to be
required, then within thirty (30) days of the date of such alternative Project Site selection or
determination of additional Infrastructure Improvements, in its discretion terminate this
Agreement, by giving written notice thereof to The Phillies, in which event, the City shall
promptly reimburse The Phillies for Pre-Construction Costs incurred by The Phillies as of the
date of such termination, or which later become due as a result of work performed by the Project
Architect(s) prior to the date of such termination, as well as such other fees and expenses as the
City is obligated to pay as otherwise provided herein.
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Section 6.02. Infrastructure Improvements Plans and Specifications. Upon approval
by The Phillies of the itemization of Infrastructure Improvements as well as the Infrastructure
Improvements Completion Schedule as provided in Section 6.01 hereof, The City shall be
responsible for the preparation of the Infrastructure Improvements Plans and Specifications,
which shall be completed so as to conform to all Legal Requirements applicable thereto and
sufficient to obtain all such building permits or other Governmental Approvals as are required by
applicable Legal Requirements for the construction and completion of such Infrastructure
Improvements. During the preparation of the Infrastructure Improvements Plans and
Specifications, the City shall consult with The Phillies, and the Project Architect(s) and
coordinate the planning, design, and construction of the Infrastructure Improvements with the
Community Sports Complex as provided in Section 6.01, so as to assure completion of the
Infrastructure Improvements as therein contemplated. Upon completion, the City shall submit
the Infrastructure Improvements Plans and Specifications to The Phillies for review and
approval, which shall not be unreasonably withheld. If The Phillies does not approve any part of
the Infrastructure Improvements Plans and Specifications, then the City and The Phillies shall
expeditiously, diligently, and reasonably meet to resolve such items. To the extent that the
parties can not agree on resolution, such matter shall be submitted to Expedited ADR for
determination. The City will not proceed with, or permit others on behalf of the City to proceed
with, the construction, installation, equipping and completion of the Infrastructure Improvements
unless and until The Phillies has approved the Infrastructure Improvements Plans and
Specifications and the Infrastructure Improvements Completion Schedule, as contemplated in
Section 6.03 hereof.
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Section 6.03. Infrastructure
Improvements
Financing.
The
Infrastructure
Improvements Cost shall be paid from funds legally available to the City. The City covenants
and agrees with Phillies to have funds in sufficient amounts to timely pay the Infrastructure
Improvements Cost, or any portion thereof, and to have such funds available when and as needed
to pay such Infrastructure Cost, or portions thereof. In no event shall the obligations, either
express or implied, of the City under the provisions of this Agreement to pay the Infrastructure
Improvements Cost be or constitute a general obligation or indebtedness of the City, or a pledge
of the ad valorem taxing power of the City, within the meaning of the Constitution of the State or
any other applicable Legal Requirements, but shall be payable solely from legally available
revenues and funds. The Phillies or any Contractor, subcontractor, materialman, or supplier for
any part of the Infrastructure Improvements or the Community Sports Complex, shall not have
the right to compel the exercise of the ad valorem taxing power of the City or any other
governmental entity on any real or personal property or taxation in any form to pay the City's
obligations or undertakings hereunder.
Section 6.04. Construction of the Infrastructure Improvements. In coordination with
The Phillies and its commencement and completion of the Community Sports Complex, the City
will commence construction of the Infrastructure Improvements in accordance with the
Infrastructure Improvements Plans and Specifications, and proceed to Substantial Completion
thereof in accordance with the Infrastructure Improvements Schedule so as the same shall be
substantially complete prior to Substantial Completion of the Community Sports Complex. It is
the intent of the parties to this Agreement that Substantial Completion of the Infrastructure
Improvements will occur by the Infrastructure Improvements Completion Date agreed to by the
parties in the Infrastructure Improvements Schedule, but in any and all events on or before the
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Completion Date. Implementation of the Infrastructure Improvements Plans and Specifications
in conjunction with the construction of the Community Sports Complex shall not otherwise
impede or delay Substantial Completion of the Community Sports Complex by the anticipated
Completion Date.
Section 6.05. Infrastructure Improvements Completion Certificate. Upon the
Substantial Completion of the Infrastructure Improvements in accordance with the provisions of
this ARTICLE 6 and the Infrastructure Improvements Plans and Specifications, the City shall
prepare, execute and deliver to The Phillies the Infrastructure Improvements Completion
Certificate, in a form sufficient to be recorded in the Public Records of the County, certifying to
The Phillies that all of the Infrastructure Improvements have been completed in accordance with,
and as required by, this Agreement and the Infrastructure Plans and Specifications. The City,
may in its discretion record the Infrastructure Improvements Completion Certificate recorded in
the Public Records of the County, and if so, the City shall be solely responsible for the cost of
such recording.
Section 6.06. Infrastructure Improvements Coordination.
It is the intent and
desire of the parties hereto that the planning, design, installation, construction, equipping, and
completion of each part of the Infrastructure Improvements and the Community Sports Complex
shall be coordinated with other parts of the overall Project, so as to minimize conflicts, improve
efficiency and avoid delays in completion of the Community Sports Complex, the Infrastructure
Improvements, and each part thereof. Therefore, (i) the City shall designate a Person (who may
be its Authorized Representative) to coordinate the planning, construction, installation,
equipping and completion of the Infrastructure Improvements with the Community Sports
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Complex and (ii) The Phillies shall designate a Person (who may be its Authorized
Representative) to coordinate the Community Sports Complex with the construction of the
Infrastructure Improvements. The Phillies shall be specifically entitled to specific performance
of all obligations and covenants of the City under this ARTICLE 6 as provided in Section
14.02(d) hereof.
ARTICLE 7
CONSTRUCTION OF THE COMMUNITY SPORTS COMPEX
Section 7.01. Construction Manager; Pre-Construction Services. The Phillies, at its
option, shall be entitled to retain the services of a qualified Construction Manager selected by
The Phillies for the purposes of providing pre-construction advisory and contract management
services, as deemed necessary by The Phillies, in connection with the Project and the planning
and completion thereof.
Section 7. 02. Selection of Contractors.
The Phillies and/or the Construction
Manager shall issue a request for bids and shall, on or before the Conditions Satisfaction Date,
select Contractors for the construction and completion of, at The Phillies' option, all or portions
of the Community Sports Complex in a competitive procurement process that complies with
applicable Legal Requirements for the bidding and awarding of construction contracts for public
works projects to the same extent as if the City had undertaken such bidding and awarding of
construction contracts. The Phillies shall notify the City of the award of any construction
contracts and describe the process used by The Phillies to solicit bids, select contractors and
enter into contracts.. The Phillies may award by items, group of items or total bid, in its
discretion. Nothing herein shall prohibit the Construction Manager from bidding any of the work
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which is the subject of such competitive procurement process provided that the Construction
Manager complies with, and is not otherwise prohibited from so bidding pursuant to, any Legal
Requirements applicable to such competitive procurement process. The Phillies will exercise its
commercially reasonable judgment to utilize local Contractors from the Clearwater area as well
as minority contractors, and to the extent required by any Legal Requirements applicable to
completion of the Community Sports Complex, The Phillies shall comply with any applicable
minority business enterprise laws, ordinances, rules or regulations. The Phillies shall enter into
such contracts with such Contractors as are awarded such work, and upon such terms and
conditions, as The Phillies shall deem necessary and/or appropriate, in its discretion, for the
construction and completion of the Community Sports Complex, subject, however, to the
provisions of Section 7.06 hereof relating to the direct contracting by the City with vendors of
certain supplies and/or materials.
Section 7.03. Site Preparation. Except for the Site Work and the Infrastructure
Improvements both of which the City is required to perform and pay pursuant to the terms of
Section 3.08 and ARTICLE 6 hereof, The Phillies shall be responsible for and shall undertake
the Site Preparation in accordance with the Project Schedule and after the City's completion of
the Site Work.
Section 7. 04. Construction of the Community Sports Complex. The Phillies shall
complete the Community Sports Complex, and all elements thereof other than the Infrastructure
Improvements, the Site Work and other work required by the terms of this Agreement to be
performed by the City, on the Project Site substantially in accordance with the Community
Sports Complex Plans and Specifications therefor. Subject to Uncontrollable Construction
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Delays, City Delay, and the terms and conditions of this Agreement, The Phillies shall
commence the Community Sports Complex on or before the Commencement Date established
by, and set forth in, the Project Schedule and shall achieve Substantial Completion of the
Community Sports Complex on or before the Completion Date established by, and set forth in,
the Project Schedule. For purposes of this Section 7.04, "commence construction" of the
Community Sports Complex means commencement of physical development of the Community
Sports Complex as authorized by the Building Permits therefor which is continued and
prosecuted with reasonable diligence toward and with the objective of Substantial Completion of
the Community Sports Complex. If for any reason, including Uncontrollable Construction
Delays but specifically excluding any City Delay, The Phillies does not commence construction
of the Community Sports Complex on or before the Commencement Date set forth in the Project
Schedule, then as of that date the City shall no longer be obligated to plan, design, construct or
install the Infrastructure Improvements in accordance with the original Infrastructure
Improvements Schedule, and the City and The Phillies shall thereafter mutually agree upon a
revised Infrastructure Improvements Schedule for the planning, design, construction, installation
and completion of the Infrastructure Improvements by City; provided, however, that any
extension of the Infrastructure Improvements Completion Date as provided in such revised
Infrastructure Improvements Schedule shall not be extended longer than the number of days by
which The Phillies' commencement of construction as herein contemplated is delayed. Once The
Phillies shall commence the Community Sports Complex, thereafter The Phillies shall continue,
pursue and prosecute the completion of the Community Sports Complex with reasonable
diligence to Substantial Completion by the Completion Date and shall not at any time actually or
effectively have abandoned (or its Contractor(s) having actually or effectively abandoned) the
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Project Site. For purposes hereof, "abandoned" means to have ceased any construction work
which effectively advances the Community Sports Complex toward completion, including all or
substantially all the construction work force withdrawing from the Project Site, for a period of
sixty (60) consecutive days. All construction work on the Community Sports Complex shall be
done substantially in accordance with the approved Community Sports Complex Plans and
Specifications. All obligations of The Phillies with respect to commencement, continuation and
Substantial Completion of the Community Sports Complex shall be subject to delays and
extensions from time to time as a result of Uncontrollable Construction Delays or any City
Delay. No Phillies Event of Default shall be deemed to exist or be continuing to the extent
construction or completion of the Community Sports Complex, or any part thereof, is not
complete by reason of Uncontrollable Construction Delays or any City Delay.
Section 7. 05. Contracts. The Phillies agrees that each contract between The Phillies and
a Contractor for all or any part of the work necessary for the Community Sports Complex shall
provide, among other things, that: (i) notice shall be given to the City of any material defaults
thereunder by The Phillies or such Contractor; (ii) in the event of a material breach (i. e., a breach
or default which has not been cured within the applicable curative or grace period therefor) by
The Phillies of such contract that is not being contested by The Phillies, the City shall have the
right, but not the obligation, to cure any defaults by The Phillies under such contract without
penalty to the City or stoppage of the work by the Contractor thereunder; and (iii) such contract
is assignable by The Phillies to The City, as well as any successor or assignee of The Phillies as
permitted by Section 15.01 hereof.
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Section 7.06. Material and Supply Contracts; Provisions Governing State of Florida
Sales and Use Tax Exemption for City-Furnished Materials. Notwithstanding anything
contained in this Agreement to the contrary and provided that no Phillies Event of Default then
exists or is continuing, the City and The Phillies agree, to the fullest extent permitted by law, that
upon request of The Phillies the City shall make direct purchase of some or all materials,
supplies, and equipment purchased for, or incorporated into, the Project, as agreed to by the City,
such agreement not to be unreasonably withheld or delayed, provided, that (i) The Phillies agrees
to reimburse the City for the reasonable incremental cost increase actually incurred by the City in
administering the same, (ii) the reasonably anticipated cost savings from such direct purchase
shall exceed the reasonably anticipated incremental cost to the City of administering such
program, and (iii) the City receives, as to any particular direct purchase, reasonable assurances
that no warranty of any Contractor or vendor shall be void, voidable, or otherwise disavowed as
a result of such direct purchase. In connection with any such agreed upon direct purchase of
materials, supplies, or equipment, the following procedures shall be followed: (i) each
Contractor, shall compile its itemized requirements of materials, supplies and/or equipment to be
incorporated into its work, including without limitation the schedule required for incorporation
of such materials, supplies, and/or equipment, and shall submit the same to The Phillies through
its Authorized Representative or Contract Manager, who upon verification thereof shall submit
the same to the City, through its Authorized Representative or Construction Manager, and the
City shall thereupon issue its purchase order, pursuant to and in compliance with applicable City
ordinances relative thereto (including without limitation obtaining City Commission approval to
the extent required by any such applicable City ordinance), directly to the vendor of such
materials, supplies or equipment together with a copy of the City's sales and use tax exemption
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certificate; (ii) upon the Contractor's verification of the conformity of such materials, supplies,
and/or equipment, the City will take title to and possession of same prior to their being
incorporated into the Project, (iii) the City will assume all risk of loss on all materials, supplies
and equipment so ordered; (iv) each Contractor will modify its insurance coverage required
under its contract with The Phillies so as to reflect that loss of the materials purchased directly by
the City shall be excluded under such Contractor's policies of insurance; and (v) the City shall
purchase and maintain insurance sufficient to protect against any loss to City-furnished
materials, supplies and/or equipment. The foregoing provisions shall, at The Phillies' option, be
incorporated into each Contract entered into by The Phillies with any Contractor for all or
portions of the work for which The Phillies is responsible hereunder. The City and The Phillies
agree that the provisions of this Section 7.06 are not intended to avoid any applicable Legal
Requirement. Furthermore, the City and The Phillies agree that in the event that they shall
undertake the provisions of this Section 7.06, then the City will purchase the builders risk
insurance required by Section 9.03 and name The Phillies as an additional insured. The parties
agree that the reasonable cost of any such insurance purchased by the City shall constitute a
reasonable incremental cost increase actually incurred by the City in administering the direct
purchase of materials, supplies or equipment. The parties also agree that in the event of any
change in the requirements of the State's Department of Revenue relative to such direct
purchases, or if any Technical Assistance Advisory issued by the State's Department of Revenue
shall indicate that the parties should amend or modify the above procedures, the parties agree
that they shall reasonably cooperate with one another in good faith in order to amend the above
procedures in writing so as to assure that the parties are at all times and from time to time in
compliance with the requirements of the State's Department of Revenue.
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Section 7.07. Maintenance and Repairs. Subject to Force Majeure, during the
construction of the Community Sports Complex, The Phillies shall, at its own expense, keep the
Project Site in good and clean order and condition and The Phillies shall promptly make all
necessary or appropriate repairs, replacements and renewals thereof, whether ordinary or
extraordinary, foreseen or unforeseen. All such repairs, replacements and renewals. shall be
equal in quality and class to the original work. When making such repairs, replacements or
renewals, The Phillies shall comply with all applicable Legal Requirements.
Section 7.08. Project Alterations or Improvements. During the construction and
completion of the Project, The Phillies may, from time to time, make such alterations and
improvements, structural or otherwise, to the Community Sports Complex as The Phillies deems
desirable or necessary and consistent with the Community Sports Complex Plans and
Specifications for the uses contemplated by this Agreement; provided, however, that prior to the
commencement of any material alterations or improvements of sufficient size and scope as to
constitute a material change in the previously approved Community Sports Complex Plans and
Specifications, The Phillies shall comply with the requirements of Section 5.04 hereof.
Section 7.09. Community Sports Complex Completion. Upon the Substantial
Completion of the Community Sports Complex as certified in writing by the Project Architect(s)
and the City's issuance of the final certificate of occupancy for the Community Sports Complex
and elements thereof, The Phillies shall prepare and execute the Community Sports Complex
Completion Certificate, in a form sufficient to be recorded in the Public Records of the County,
which shall then be delivered to the City together with the Project Architect(s)' certification of
Substantial Completion. Upon receipt of the Community Sports Complex Completion
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Certificate and the Project Architect(s)' certification of Substantial Completion, the City, in its
capacity as the owner of the Community Sports Complex, shall have an opportunity to inspect
the Community Sports Complex with the Authorized Representative of The Phillies and a
representative of the Project Architect(s), within ten (10) Business Days of said receipt in order
to determine that (i) the Community Sports Complex has been constructed in material and
substantial compliance with the Scope of Work, the Community Sports Complex Plans and
Specifications and this Agreement, and without materially significant deviation from the exterior
appearance of the Community Sports Complex and the configuration of the Community Sports
Complex on the Project Site as set forth in the Conceptual Drawings and the approved Site Plan
and (ii) the Community Sports Complex meets the standard of a first class Major League
Baseball spring training facility (collectively, the "Community Sports Complex Acceptance
Standards"), other than normal "punchlist" items. Within five (5) Business Days of completing
the inspection provided in the preceding sentence, the City shall either (i) execute the
Community Sports Complex Completion Certificate acknowledging that the Community Sports
Complex has met the Community Sports Complex Acceptance Standards and return it to The
Phillies or (ii) provide written notice of objection (the "Acceptance Objection Notice") to The
Phillies setting forth in detail the specific reasons and elements of the Community Sports
Complex which the City has determined do not comply with the Community Sports Complex
Acceptance Standards, other than normal "punchlist" items. If the City delivers an Acceptance
Objection Notice, then the City and The Phillies shall expeditiously, diligently, and reasonably
meet to resolve such objections. If The Phillies does not dispute an objection, it shall complete
the work necessary to rectify such objection. To the extent that the parties can not agree on
resolution of any such objection, such matter shall be submitted to Expedited ADR for
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determination. Once all objections have been resolved pursuant to the above procedure, the City
shall execute the Community Sports Complex Completion Certificate. If the City fails to inspect
the Community Sports Complex within the ten (10) Business Day period therefor or, upon
completion of such inspection, fails to provide either the fully executed Community Sports
Complex Completion Certificate or an Acceptance Objection Notice within five (5) Business
Days thereafter as provided above, then it shall be deemed conclusively that the City has
accepted and approved the Community Sports Complex for all purposes hereunder and The
Phillies shall be entitled to cause to be recorded an affidavit of the Authorized Representative or
an officer of The Phillies (the "Completion Compliance Affidavit") to the effect that The
Phillies has fully complied with the requirements of notice to the City as herein provided and that
the City has either failed or refused to inspect the Community Sports Complex or failed to timely
either accept or object to the Community Sports Complex thereafter and reciting the provisions
of this Section providing for the conclusive determination of acceptance and approval by the City
of the Community Sports Complex. The date of the Community Sports Complex Completion
Certificate shall be the date when all parties shall have executed said certificate. The date of any
Completion Compliance Affidavit shall be the date when the Authorized Representative or
officer of The Phillies has executed such affidavit. The Community Sports Complex Completion
Certificate or the Completion Compliance Affidavit shall constitute a conclusive determination
by the parties hereto of the satisfaction and termination of the obligations of The Phillies
hereunder to construct the Community Sports Complex. The City agrees that its issuance of a
final certificate of occupancy for the Project shall be a conclusive determination of the
Community Sports Complex's compliance under the City's ordinances, regulations, rules,
authority and exercise of its police powers in connection with the construction of buildings or
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other improvements within the territorial and legal limits of the City. The City further agrees that
its execution and delivery of the Community Sports Complex Completion Certificate, or its
failure to inspect the Community Sports Complex as herein provided, or its failure, after such
inspection to deliver either an executed Community Sports Complex Completion Certificate or
an Acceptance Objection Notice, all as hereinabove provided, shall constitute a conclusive
determination by the City of its acceptance and approval, as owner, of the Community Sports
Complex. Upon the Substantial Completion of the Community Sports Complex, all warranties,
guarantees, or other forms of assurance relative to the Project, any elements thereof, or any
equipment, machinery, materials, supplies, or goods incorporated therein shall be assigned to
both The Phillies and the City, as their respective interests may appear.
Section 7.10. City Not in Privity with Contractors. Except as expressly provided in
Section 7.05 and Section 7.06 hereof, the City shall not be deemed to be in privity of contract
with any Contractor or vendor of goods or services with respect to Project.
ARTICLE 8
PROJECT FINANCING
Section 8. 01. Project Financing. The parties agree that the funding for the cost to
develop and construct the Community Sports Complex (including all hard and soft costs) shall
come from the sources and in the amounts specified in this ARTICLE 8. All Public Source
Project Funding for the Community Sports Complex shall be committed to in a legally binding
fashion on or before the Public Source Project Funding Deadline. Except for (i) The Phillies'
contribution for the City Geotechnical Investigation, (ii) costs incurred by The Phillies' in
connection with the Phillies Site Investigation, including without limitation the Phillies
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Environmental Investigation, (iii) The Phillies Site Work Contribution, (iv) Project Architect(s)'
fees, and (v) fees of The Phillies' Construction Manager (all of which contributions, costs and
fees as set forth in the foregoing clauses (i) through (v) shall be paid from the Phillies Capital
Contribution), The Phillies' portion of the Project Funding shall be contributed after expenditure
of (a) all net proceeds obtained from the issuance of the Bonds as provided in Section 8.04
hereof, (b) the City Capital Contribution, and (c) all other contributions or capital expenditures,
including without limitation the City Site Work Financial Contribution, to be made by the City
pursuant to the terms of this Agreement, as and when necessary to complete the Community
Sports Complex. At such time as The Phillies may enter into any contract, the total cost of which
would exceed the then remaining sums available in the Construction Fund as provided in Section
8.09 hereof, The Phillies shall certify to the City that it has or will have available such.amounts
as are necessary, as and when due and payable, to pay that portion of the contract price therefor
which is in excess of the then remaining available Construction Fund. The Phillies shall
specifically be entitled to seek specific performance of all covenants of the City under this
ARTICLE 8 as provided in Section 14.02(d) hereof.
Section 8.02. Interloeal Agreement. As of December 1, 2000, the County and the City
have entered into the Interlocal Agreement, a true and correct copy of which has previously been
provided to The Phillies. The parties acknowledge that pursuant to the Interlocal Agreement, the
County has agreed with the City to provide tourist development tax funds in the aggregate
amount of $11,753,000, payable over twenty (20) years in the annual amount of $587,650, which
the City shall pledge to secure, and to pay a portion of the debt service on, the Bonds. The City
covenants and agrees with The Phillies that during such twenty (20) year period it will take such
actions as are necessary to maintain the Interlocal Agreement in full force and effect and will not
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take any action or fail to take any action that will result in the termination of the Interlocal
Agreement before it is scheduled to expire by its own terms or will result in changes to the
Interlocal Agreement which would have the effect of adversely affecting the rights and
obligations of any party to this Agreement. The City shall provide to Phillies any proposed
amendments to the Interlocal Agreement at least thirty (30) days before such amendments will be
considered by the City Commission.
Section 8.03. State Funds. The City was certified on January 1, 2001, by OTTED for
State matching funds pursuant to the STFF Program and the STFF Act in the amount of
$500,000 per year for 30 years, and having a net present value of not less than $7,000,000. The
City has previously provided to The Phillies a true and correct copy of the OTTED Certification
that the City is eligible and has been approved to receive funds under the STFF Program. The
City covenants and agrees that it shall pledge such funds to secure, and to pay a portion of the
debt service on, the Bonds. The City covenants and agrees that it shall take all such actions and
make all such assurances as are required in order to continue said certification without
interruption for the entire 30 year term of such commitment and the City's continuing eligibility
for funding under the STFF Program.
Section 8.04. Covenant to Issue Bonds. Subject only to failure issue the Bonds, despite
exercising its best efforts to do so, as a result of (i) failure to obtain validation of the Bonds as
herein below provided or (ii) a so called "market out" condition relative to the sale and issuance
of the Bonds wherein market conditions make the Bonds either unsaleable or the amount to be
received as a result of such sale shall be materially and substantially less than the $14,000,000
net principal amount, after payment of Costs of Issuance, contemplated to be received by the
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City, The City covenants and agrees that, provided this Agreement is in full force and effect, it
shall take any and all actions as are necessary to cause the issuance of the Bonds and make
available for the Community Sports Complex the proceeds from the sale thereof on or before the
Bond Issuance Deadline, which actions shall include without limitation, (i) the commencement,
diligent prosecution and completion of judicial validation proceedings before a court of
competent jurisdiction in order to obtain a final non-appealable judgment of validation with
respect to the Bonds pursuant to applicable Legal Requirements, and (ii) subject to obtaining
validation of the Bonds, issuance of the Bonds in the maximum principal amount that can be
serviced by the payments received by the City under the Interlocal Agreement and the STFF
Program given the market conditions as of the time of issuance, the net principal amount of
which after subtracting Costs oflssuance is anticipated by the City to be $14,000,000.
Section 8.05. City Capital Contribution. The City will (in addition to its other
obligations set forth in this Agreement) make the City Capital Contribution in the amount of
$5,000,000 on or before the Public Source Funding Deadline, provided, however, such amount
shall not be required to be actually deposited in the Construction Fund until the Bond Issuance
Deadline so long as such funds are currently committed and otherwise available for the City
Capital Contribution. The City covenants and agrees that it shall provide such funds and failure
to do so shall constitute a City Default hereunder. No funds from the City Capital Contribution
shall be used to pay any costs to construct the Phillies Discretionary Facilities. The Phillies shall
be deemed to have conclusively established that no portion of the City Capital Contribution has
been used to pay the costs of the Phillies Discretionary Facilities provided that it demonstrates
that the cost of completion of the elements of the Project other than the Phillies Discretionary
Facilities is equal to or exceeds the sum obtained by adding the net proceeds obtained from the
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issuance of the Bonds and the City Capital Contribution. Notwithstanding anything contained
herein to the contrary, any amounts expended by The Phillies for the Phillies Discretionary
Facilities shall be deemed to be a part of the Phillies Capital Contribution.
Section 8.06. Phillies Capital Contribution. The Phillies shall make the Phillies Capital
Contribution, which shall not be less than the sum of (i) $3,000,000 and (ii) the actual amount
expended by The Phillies for the Phillies Site Work Financial Contribution up to a maximum of
$250,000, toward the cost of the Project. Except as set forth in Section 8.01, The Phillies shall
contribute the Phillies Capital Contribution after expenditure of all Public Source Funding for the
Community Sports Complex, provided that The Phillies will, prior to expenditure of the all the
Public Source Funding, pay the fees of the Project Architect(s) and those amounts required for
the Phillies Site Work Financial Contribution. Those amounts expended by The Phillies and set
forth in Section 8.01 shall be deemed paid from The Phillies Capital Contribution. Subject to the
provisions of .Section 13.01 hereof, The Phillies shall pay the costs to construct and complete the
Community Sports Complex which are in excess of all amounts received from the Public Source
Project Funding.
Section 8.07. No Liability of The Phillies. Notwithstanding anything contained herein
to the contrary, The Phillies shall have no liability or obligation for payment of the Bonds;
provided, however, that this provision does not release The Phillies from its obligation to make
the Phillies Capital Contribution or to make any payments required under or pursuant to the Use
Agreement.
Section 8.08. Unavailability of Funds. In the event all of the commitments of, or
necessary to support, the Public Source Project Funding are not available on or before the Public
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Source Project Funding Deadline, despite the City's best efforts to obtain the same by such date,
or the City shall fail to complete the issuance of such Bonds on or before the Conditions
Satisfaction Date due to (i) the City's inability to obtain a non-appealable final judgment of
validation from a court of competent jurisdiction or (ii) a "market out" condition in which the
Bonds are generally unsaleable in the municipal bond market or the sale thereof would produce
materially and substantially less than the $14,000,000 targeted net proceeds (i.e., the gross
proceeds after subtracting Costs of Issuance), despite the City's best efforts to issue and/or sell
same by such date, The Phillies may in its discretion terminate this Agreement by giving written
notice thereof to the City in accordance with the notice provisions of Section 15.03, in which
case the City shall promptly reimburse and pay to The Phillies Pre-Construction Costs incurred
by The Phillies as of the date of such termination, or which later become due as a result of work
performed by the Project Architect(s) prior to the date of such termination, as well as such other
fees and expenses as the City is obligated to pay as otherwise provided herein.
Section 8.09. Construction Fund; Disbursement Procedures. The net proceeds (i. e.,
the gross proceeds after subtracting Costs of Issuance) obtained from issuance of the Bonds
(which is targeted by the City to be $14,000,000, as herein provided) together with the City
Capital Contribution shall be held and maintained by the City's Finance Director as a
Construction Fund for all Public Source Project Funding, which shall be made available to The
Phillies on a percentage of completion basis as provided herein. In order to obtain disbursement
of monies from the Construction Fund, The Phillies shall submit to the City's Finance Director a
disbursement request or requisition signed by The Phillies Authorized Representative showing
all costs which The Phillies intends to fund with such disbursement then requested, and
accompanied in each case by an Application and Certificate for Payment (AlA Documents G702
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and G703), containing certifications by Contractor and the ProjectArchitect(s) that the work on
the Community Sports Complex to the date of the disbursement request is in accordance with the
Community Sports Complex Plans and Specifications. Disbursements shall be made to The
Phillies or, at the request of The Phillies, and with the consent of the City, which shall not be
unreasonably withheld or delayed, directly to any Contractor or subcontractor as The Phillies
shall require. As to each item of "hard cost" set forth in any disbursement request or requisition
the amount of 90% of the total cost of such work shall be disbursed with respect thereto. All
other disbursements shall be made in the amount of 100% of the cost of such work or for
materials supplied. Upon the disbursement in full of the Construction Fund, The Phillies shall
commence funding all other monies necessary to complete the Community Sports Complex as
provided in, and in satisfaction of its obligations under, Section 8.06 hereof.
ARTICLE 9
PROVISIONS REGARDING INSURANCE
Section 9.01. Phillies Liability Insurance. The Phillies shall maintain at its cost and
expense during the term of this Agreement commercial general liability insurance against claims
for bodily injury, personal injury, and property damage based upon, involving or arising out of
the use of the Project Site during the term of this Agreement. Such insurance shall be on an
occurrence basis, providing coverage in an amount of not less than $2,000,000 per occurrence,
and not less than $2,000,000 general aggregate (per location), and not less than $2,000,000
coverage for personal injury, with deductibles of up to $100,000 per person or $200,000 per
occurrence.
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Section 9.02. Phillies Workers' Compensation. The Phillies shall maintain at its cost
and expense during the term of this Agreement statutory workers' compensation and employers'
liability insurance coverage in an amount of no less than $500,000 bodily injury each accident,
$500,000 bodily injury by disease for each employee and $500,000 bodily injury by disease
policy limit.
Section 9.03. Builders' Risk Insurance. Except as provided in Section 7.06 or as the
parties may otherwise mutually agree, The Phillies upon commencement of construction of the
Community Sports Complex and at all times thereafter until such time as permanent insurance
coverages are in place pursuant to the Use Agreement, shall carry and maintain or cause to be
carried and maintained a special causes of loss (formerly "all risk"), non-reporting, completed
value builder's risk insurance policy, which shall include agreed amount, replacement cost,
permit to occupy and vandalism/malicious mischief endorsements.
Section 9.04. Environmental Insurance. The City shall obtain and maintain
environmental insurance coverage in such amounts as the City and The Phillies shall determine,
to insure against the cost of any environmental remediation or closure of the Project Site as a
result of any Existing Environmental Condition in amounts and with underwriters approved by
The Phillies, which approval shall not be unreasonably withheld or delayed. Any such
environmental insurance shall name The Phillies, its successors and/or assigns as an additional
insured.
Section 9.05. City's Liability Insurance. The City shall maintain at its sole cost and
expense during the term of this Agreement automobile liability insurance and general liability
insurance at self-insured level of $100,000 per person and $200,000 per occurrence self insured
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retention within the statutory limits provided in Section 768.28, Florida Statutes, and excess
insurance of $5,000,000 per occurrence (no aggregate applicable), with self insured retention of
$500,000.
Section 9.06. City's Workers' Compensation Insurance. The City shall maintain at its
sole cost and expense during the term of this Agreement statutory workers' compensation
coverage per occurrence with self-insured retention of $500,000.
Section 9.07. General Requirements. All insurance shall be required to be maintained
hereunder and shall be obtained from financially responsible insurance companies having a
minimum rating of A- or better and a minimum class VII financial size category (as listed at the
time of issuance by A.M Best Insurance Reports), either duly authorized under applicable Legal
Requirements of the State to transact insurance business in the State (or subject to legal process
in the State ) and shall be issued and countersigned by duly authorized representatives of such
companies for the State. All such insurance coverages and limits shall be evidenced by properly
executed certificates of insurance, which shall provide, no less than thirty (30) days' written
notice to the City and The Phillies of any cancellation, intent not to renew, or reduction in the
policy coverages.
Section 9.08. City Self-Insurance or Self-Funding. Notwithstanding any provision of
this Agreement to the contrary, the City shall maintain insurance coverage and limits as provided
for in this Agreement, but the parties hereto specifically agree that the City may provide the
insurance coverage required by this Agreement by self-insurance, by self-funding, by purchase,
or any combination thereof at the sole option of the City. Insurance coverage and limits may, at
the option of the City, be evidenced by delivery to The Phillies of letters of self-insurance or self-
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funding executed by the City's Risk Manager, or by certificates of 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.
ARTICLE 10
CASUALTY; CONDEMNATION
Section 10.01. Casualty. If at any time during the term of this Agreement, the
Community Sports Complex and its related facilities, or any portion thereof, should be damaged
or destroyed by any casualty, and The Phillies shall determine that the Community Sports
Complex, and its related facilities can be economically and feasibly restored, The Phillies shall
forthwith remove any resulting debris and repair or rebuild any damaged or destroyed structures
and other improvements to the condition in which such structures and improvements existed
prior to such casualty, but only to the extent that insurance proceeds are available for such repair
and/or reconstruction. Any such repair and reconstruction shall be in accordance with the
Community Sports Complex Plans and Specifications. In the event that the Community Sports
Complex cannot be economically and feasibly restored in the determination of The Phillies in its
discretion or in the event that insurance proceeds are not available for such repair or
reconstruction, The Phillies shall have the right to terminate this Agreement as of the date of
such damage or destruction.
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Section 10.02. Condemnation.
(a) Efforts to Prevent Taking. The City agrees to use its best efforts to prevent a
Condemnation Proceeding and to cause any other governmental authorities vested with
the power of eminent domain to refrain from instituting any Condemnation Proceedings
or exercising any other powers of eminent domain with respect to the Project Site, the
Community Sports Complex, or any part thereof during the term of this Agreement.
(b) Entire Taking. If the entire Project Site and Community Sports Complex shall
be taken in Condemnation Proceedings, this Agreement shall terminate as of the Taking;
provided, however, such termination shall not affect The Phillies' right to recover any
portion of any award for the Taking of its interests hereunder or other interests, as
otherwise provided herein.
(c) Partial Taking.
(i) If less than all of the Project Site and Community Sports Complex
shall be taken in Condemnation Proceedings, The Phillies shall determine,
in The Phillies' discretion and within one hundred eighty (180) days after
such Taking, whether the remaining Project Site and the Community
Sports Complex, after necessary and feasible repairs and reconstruction to
constitute the same as a complete architectural unit or units to the level of
completion as of the Taking, can economically and feasibly be used by
The Phillies.
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(ii) If it is determined by The Phillies, In its discretion, that such
remaining portion of the Project Site or Community Sports Complex
cannot economically and feasibly be used by The Phillies, then The
Phillies, at its election, may terminate this Agreement on thirty (30) days'
notice to the City to such effect.; provided, however, such election to
terminate must be exercised within ninety (90) days after the
determination that the remaining portion of the Project Site and the
Community Sports Complex cannot be economically and feasibly used by
The Phillies. In the event that The Phillies does not give timely notice to
terminate this Agreement upon a partial Taking, this Agreement shall
remain in full force and effect as to the remainder of the Project Site and
the Community Sports Complex that is suitable for the use then being
made of the Community Sports Complex by The Phillies; if and so long as
The Phillies deems it advisable, The Phillies may utilize alternate
facilities; and the City shall, to the extent of condemnation proceeds
received by it, acquire or add adjacent property and construct additional or
replacement improvements with reasonable diligence in order to provide
for the completion of the Community Sports Complex. Whether this
Agreement is terminated or continues in full force and effect as a result of
any such partial Taking, The Phillies shall have no claim to the award in
condemnation for the City's interest in the Project Site and/or the
Community Sports Complex; provided, however, that The Phillies shall
have a claim to the portion of the condemnation award that represents
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compensation for the Taking of The Phillies' interest under this Agreement
and the Use Agreement.
(d) Failure to Repair. If the City is obligated to make the Project Site and the
Community Sports Complex suitable for use by The Phillies following any Taking under
the provisions of this Section 10.02 and does not commence to acquire or add adjacent
property or construct additional or replacement improvements necessary to do so within
ninety (90) days after the date of Taking, of if the City commences such acquisition or
construction but does not prosecute the same diligently to completion, the same shall
constitute a City Default as provided in Section 14.02 hereof and The Phillies shall have
the rights and remedies provided in Section 14.02(c) and Section 14.02(d) hereof.
(e) The Phillies Option to Repair or Rebuild. In the event the City fails to
commence such repairs or rebuilding within ninety (90) days of any such Taking, The
Phillies shall have the right, but not the obligation, to undertake such repairs or
rebuilding. In the event that The Phillies so undertake such repairs and rebuilding, The
Phillies shall be entitled to reimbursement of the actual costs thereof by the City as
incurred, within forty-five (45) days of all invoices therefor, with interest thereon at the
rate of interest charge from time to time by Citibank, N.A., of New York, New York (or
some other bank agreed to by the parties) as its prime rate plus one and one-half percent
(1.5%), but in no event greater than the amount permitted by Chapter 218, Part VII,
Florida Statutes. As used herein, the "prime rate" shall mean the rate of interest
announced or published from time to time by Citibank, N .A., for loans to its commercial
customers with the highest credit rating.
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ARTICLE 11
REPRESENTATIONS, WARRANTIES AND SPECIAL COVENANTS
Section 11.01. Representations, Warranties and Special Covenants of The Phillies. The
Phillies represents, warrants and covenants to the City as follows:
(a) The Phillies is a Pennsylvania limited partnership duly organized and validly
existing under the laws of the State of Pennsylvania, has all requisite power and authority
to carry on its business as now conducted, to own or hold its properties and to enter into
and perform its obligations hereunder and under each document or instrument
contemplated by this Agreement to which it is or will be a party.
(b) This Agreement and each document contemplated or required by this
Agreement to which The Phillies is or will be a party have been duly authorized by all
necessary action on the part of, and have been or will be duly executed and delivered by,
The Phillies, and neither the execution and delivery thereof, nor compliance with the
terms and provisions thereof or hereof: (i) require the approval and consent of any other
Person, except such as have been duly obtained or as are specifically noted herein, and
(ii) contravenes any existing Legal Requirement applicable to or binding on The Phillies.
(c) This Agreement and each document contemplated or required . by this
Agreement to which The Phillies is or will be a party constitutes, or when entered into
will constitute, a legal, valid and binding obligation of The Phillies enforceable against
The Phillies in accordance with the terms thereof, except as such enforceability may be
limited by applicable bankruptcy, insolvency or similar laws from time to time in effect
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which affect creditors' rights generally and subject to usual equitable principles in the
event that equitable remedies are involved.
(d) There are no pending or, to the knowledge of The Phillies, threatened Actions
against The Phillies, or against its general partner, which question the validity of this
Agreement or any document contemplated hereunder, or which are likely in any case, or
in the aggregate, to materially adversely affect the consummation of the transactions
contemplated hereunder.
(e) All information and documentation, including that pertaining to the Project or
The Phillies, delivered by The Phillies to the City, was, to the best of The Phillies'
knowledge and belief, on the date of delivery thereof, substantially and materially true
and correct.
(f) The principal place of business and principal executive offices of The Phillies
are in Philadelphia, Pennsylvania, and, until the expiration or termination of this
Agreement, The Phillies will keep original or duplicate records concerning the Project
(such as construction contracts, financing documents) and all contracts, licenses and
similar rights relating thereto at an office located in the corporate limits of the City.
(g) Except as is necessary for The Phillies to complete the Community Sports
Complex pursuant to, or as is otherwise provided in, this Agreement and the Community
Sports Complex Plans and Specifications, The Phillies shall not permit, commit, or suffer
any material waste or impairment of the Project Site prior to the earlier of the
Termination Date or the Expiration Date.
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Section 11.02. Representations, Warranties andSpecial Covenants of the City. The
City represents, warrants and covenants to The Phillies as follows:
(a) The City is a validly existing municipal corporation of the State of Florida,
and has all requisite corporate power and authority to carry on its business as now
conducted and to perform its obligations hereunder and under each document or
instrument contemplated by this Agreement to which it is or will be a party.
(b) This Agreement and each document contemplated or required by this
Agreement to which the City is or will be a party have been duly authorized by all
necessary action on the part of, and have been or will be duly executed and delivered by,
the City, and neither the execution and delivery thereof, nor compliance with the terms
and provisions thereof or hereof (i) requires the approval and consent of any other
Person, except such as have been duly obtained or as are specifically noted herein, (ii)
contravenes any existing law, judgment, governmental rule, regulation or order
applicable to or binding on the City, (3) contravenes or results in any breach of, or default
under or, other than as contemplated by this Agreement, results in the creation of any lien
or encumbrance upon any property of the City under any indenture, mortgage, deed of
trust, bank loan or credit agreement, applicable ordinances, resolutions or, on the date of
this Agreement, any other agreement or instrument to which the City is a party,
specifically including any covenants of any bonds, notes, or other forms of indebtedness
of the City outstanding on the Dated Date.
(c) This Agreement and, to the extent such documents presently exist in form
accepted by the City and The Phillies, each document contemplated or required by this
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Agreement to which the City is or will be a party constitute, or when entered into will
constitute, legal, valid and binding obligations of the City enforceable against the City in
accordance with the terms thereof, except as such enforceability may be limited by
applicable bankruptcy, insolvency or similar laws from time to time in effect which affect
creditors' rights generally and subject to usual equitable principles in the event that
equitable remedies are involved.
(d) There are no pending or threatened Actions against the City, or against any
officer of the City, which question the validity of any document contemplated hereunder,
or which are likely in any case, or in the aggregate, to materially adversely affect the
consummation of the transactions contemplated hereunder or the financial condition of
the City, other than the bond validation proceeding in connection with the Bonds, and
claims of intervenors therein, and general threats of property owners within the vicinity
of the Exhibit "A" Property.
(e) The Interlocal Agreement is a valid and binding obligation of the County and
the City.
(f) The City has obtained certification from OTTED under the STFF Program
and STFF Act.
(g) The City shall timely perform or cause to be performed all of the obligations
contained herein which are the responsibility of the City to perform.
(h) During each year that this Agreement and the obligations of the City under
this Agreement shall be in effect, the City shall cause to be executed and to continue to be
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in effect those instruments, documents, certificates, permits, licenses and approvals, and
shall cause to occur those events contemplated by this Agreement that are applicable to
and are the responsibility of the City.
(i) The City shall assist and cooperate with The Phillies to accomplish the
development of the Community Sports Complex in accordance with this Agreement and
the Community Sports Complex Plans and Specifications, will carry out its duties and
responsibilities contemplated by this Agreement, and will not violate any Legal
Requirement, contracts, or agreements that are or will be applicable thereto, and, to the
extent permitted by law, the City will not enact or adopt or urge or encourage the
adoption of any ordinances, resolutions, rules, regulations or orders or approve or enter
into any contracts or agreements, including issuing any bonds, notes, or other forms of
indebtedness, that will result in any provision of this Agreement to be in violation
thereof.
G) The City shall not request, consent or recommend any rezoning of the Project
Site, or any part thereof, which will prevent or adversely affect the development of the
Community Sports Complex.
(k) The City shall maintain its financial capability to carry out its responsibilities
as contemplated by this Agreement and shall notify The Phillies of any event, condition,
occurrence, or change in its financial condition which adversely affects, or with the
passage of time is likely to adversely affect, the City's financial capability to carry out its
responsibilities contemplated hereby.
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(1) So long as this Agreement is in effect and The Phillies is not in default
hereunder, the City shall maintain the lnterlocal Agreement in effect and will not
terminate it or do anything or not do anything that would be the basis for the City to
terminate such agreement prior to its scheduled expiration.
(m) So long as any Bonds remain issued and outstanding, the City shall comply
with and maintain in full force and effect and will not terminate any indenture, ordinance,
resolution of other agreement relative to the Bonds or the issuance thereof, including,
without limitation, the Bond Ordinance, and the City shall timely and fully perform any
and all obligations imposed on it by any such indenture, ordinance, resolution, or other
agreement relative to the Bonds.
(n) The City shall comply with all requirement of the STFF Act as well as any
and all rules and regulations promulgated thereunder or any requirements of OTTED with
respect thereto.
ARTICLE 12
NON-RECOURSE NATURE
No partner of The Phillies, including, without limitation, any general partner shall have
any personal liability with respect to The Phillies' obligations under this Agreement by reason of
such Person's status as a partner. No officer or employee of the City shall have any personal
liability with respect to the City's obligations under this Agreement by reason of such Person's
status as an officer or employee.
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ARTICLE 13
CONDITIONS PRECEDENT TO THE PHILLIES OBLIGATIONS HEREUNDER
The following conditions shall constitute absolute conditions precedent to the continued
performance by The Phillies of any of its obligations hereunder, unless the same shall be
expressly waived in a writing executed and delivered by The Phillies:
Section 13.01. Maximum Construction Cost. The Phillies (i) shall have on or before the
Conditions Satisfaction Date determined that the total cost of construction and completion of the
Project, exclusive of the City Site Work Contribution, and the cost incurred by the City for the
Infrastructure Improvements shall not exceed $24,000,000 or such greater amount as The Phillies
in its discretion may agree (provided, however, The Phillies shall have no obligation to so agree
to such greater amount) and (ii) shall have entered into such contracts with such Contractors as it
shall determine in its discretion pursuant to the terms of Section 7.02.
Section 13.02. Phillies Site Investigation. The Phillies Site Investigation shall disclose
no geotechnical or environmental condition which would impede the construction of the
Community Sports Complex (taking into account the remedial actions to be completed by the
City pursuant to the provisions of Section 3.08), as determined by The Phillies in its discretion.
Section 13.03. City Site Work. The City shall have completed all Site Work and
remediation relative to the Project Site as contemplated by Section 3.08 hereof on or before
October 1,2001.
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(d) That the purposes for which this Agreement, the Use Agreement, the Bond
Ordinance, and such other documents or instruments are entered into constitute "public
purposes" and are within the power of the City and do not violate any public policy;
(e) That the City qualifies as a "local governmental unit," that The Phillies
qualifies as a "retained sports franchise" and the Community Sports Complex as
contemplated herein constitutes a "retained spring training franchise facility," all under
and pursuant to the S TFF Act;
(f) Such other matters as The Phillies shall reasonably require.
Section 13.06. Opinion of The Phillies' Legal Counsel. The Phillies' legal counsel, who
may be The Phillies' in-house general counsel shall have delivered or caused to be delivered to
the City on or before the Project Site Acceptability Determination Date a legal opinion of the
such legal counsel in form and substance acceptable to the City and addressing the following:
(a) That The Phillies is a du1y organized and validly existing limited partnership
under the laws of the State of Pennsylvania;
(b) That The Phillies' execution, delivery and performance of this Agreement and
the Use Agreement and all other documents or instruments contemplated to be. executed
and/or delivered by The Phillies pursuant to the terms hereof have been duly authorized
and that such agreements constitute binding agreements of The Phillies enforceable
against The Phillies in accordance with their respective terms subject to bankruptcy or
insolvency laws;
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( c) That the execution, delivery and performance of this Agreement, and the Use
Agreement and all such other documents or instruments, do not violate or constitute a
breach of any existing contract, obligation or indenture to which The Phillies is a party;
(d) Such other matters as the City shall reasonably require.
ARTICLE 14
DEFAULT; REMEDIES
Section 14.01. Default by Phillies.
(a) Breach or Default. Provided no City Event of Default under Section 14.02
hereof then exists, the occurrence of anyone or more of the following shall constitute a
"Phillies Event of Default" by The Phillies hereunder:
(i) The Phillies' failure to comply with any monetary obligation
hereunder by payment of the amount due within ten (10) days of the due
date for such payment (a "Phillies Monetary Default"); or
(ii) The Phillies shall fail to materially perform or comply with any
material provision of this Agreement applicable to it, other than a Phillies
Monetary Default, within the time prescribed therefor; provided, however,
that suspension of or delay in performance by The Phillies during the
continuance of any City Event of Default as provided in Section 14.02
hereof, or as a result of any Uncontrollable Construction Delays or City
Delay will not constitute a Phillies Event of Default (whether a Phillies
Monetary Default or otherwise) and The Phillies shall be provided with
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notice of such Phillies Event of Default and an opportunity to cure the
same as provided in Section 14.01(b) hereof; or
(iii) The Phillies shall make a general assignment for the benefit of its
creditors, or shall admit in writing its inability to pay its debts as they
become due or shall file a petition in bankruptcy, or shall be adjudicated a
bankrupt or insolvent, or shall file a petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future statute, law or regulation or shall file an
answer admitting, or shall fail reasonably to contest, the material
allegations of a petition filed against it in any such proceeding, or shall
seek or consent to or acquiesce in the appointment of any trustee, receiver
or liquidator of The Phillies or any material part of such Person's
properties; or
(iv) Within ninety (90) days after the commencement of any
proceeding by or against The Phillies seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future statute, law or regulation, such
proceeding shall not have been dismissed or otherwise terminated, or if,
within ninety (90) days after the appointment without the consent or
acquiescence of The Phillies of any trustee, receiver or liquidator of any of
such entities or of any material part of any of such Person's properties,
such appointment shall not have been vacated.
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(b) Notice of Default and Opportunity to Cure for Non-Monetary Default. If a
Phillies Event of Default other than a Phillies Monetary Default (a "Phillies Non-
Monetary Default") shall occur, the City shall provide written notice thereof to The
Phillies specifying in reasonable detail the Phillies Non-Monetary Default, and The
Phillies shall have a period of thirty (30) days after receipt of such notice within which to
cure said Phillies Non-Monetary Default; provided, however, if such Phillies Non-
Monetary Default is of such nature that it cannot be completely cured within such time
period, The Phillies shall have such longer period of time as is reasonably necessary to
cure such Phillies Non-Monetary Default.
(c) Remedies. Provided that (1) no City Event of Default then exists, (2) the
Phillies Event of Default is not as a result of, or the cure thereof cannot be accomplished
due to, Force Majeure, Uncontrollable Construction Delays or a City Delay, and (3) all
curative periods therefor shall have run or expired, then, the City may terminate this
Agreement or pursue any and all legal or equitable remedies to which the City is entitled.
Any attempt by the City to pursue any of the above referenced remedies will not be
deemed an exclusive election of remedy or waiver of the City's right to pursue any other
remedy to which it may be entitled.
Section 14.02. Default by the City.
(a) Breach or Default. Provided that no Phillies Event of Default under Section
14.01 hereof then exists, the occurrence of anyone or more of the following shall
constitute a "City Event of Default" by the City hereunder:
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(i) The City's failure to comply with any monetary obligation
hereunder by payment of the amount due within ten (10) days of the due
date for such payment (a "City Monetary Default"); or
(ii) The City shall fail to materially perform or comply with any
material provision of this Agreement applicable to it, other than a City
Monetary Default, within the time prescribed therefor; provided, however,
that suspension of or delay in performance by the City during the
continuance of any Phillies Event of Default as provided in Section 14.01
hereof, will not constitute a City Event of Default (whether a City
Monetary Default or otherwise) and City shall be provided with notice of
such Event of Default and an opportunity to cure the same as provided in
Section 14.02(b) hereof; or
(iii) The City shall make a general assignment for the benefit of its
creditors, or shall admit in writing its inability to pay its debts as they
become due or shall file a petition in bankruptcy, or shall be adjudicated a
bankrupt or insolvent, or shall file a petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future statute, law or regulation or shall file an
answer admitting, or shall fail reasonably to contest, the material
allegations of a petition filed against it in any such proceeding, or shall
seek or consent to or acquiesce in the appointment of any trustee, receiver
or liquidator of the City or any material part of such Person's properties; or
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(iv) Within ninety (90) days after the commencement of any
proceeding by or against the City seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future statute, law or regulation, such
proceeding shall not have been dismissed or otherwise terminated, or if,
within ninety (90) days after the appointment without the consent or
acquiescence of the City of any trustee, receiver or liquidator of any of
such entities or of any material part of any of such Person's properties,
such appointment shall not have been vacated.
(b) Notice of Non-Monetary Default and Cure Rights. If a City Event of Default
by the City other than a City Monetary Default (a "City Non-Monetary Default") shall
occur, The Phillies shall provide written notice thereof to the City specifying in
reasonable detail the City Non-Monetary Default, and the City shall have a period of
thirty (30) days after receipt of such notice within which to cure said City Non-Monetary
Default.
(c) Remedies. Provided that (1) no Phillies Event of Default then exists, (2) the
City Event of Default is not as a result of, or the cure thereof cannot be accomplished due
to, Force Majeure, and (3) all curative periods therefor shall have run or expired, then, in
addition to any remedy available under subsection (d) hereof, The Phillies may terminate
this Agreement or pursue any and all legal or equitable remedies to which The Phillies is
entitled. Any attempt by The Phillies to pursue any of the above referenced remedies will
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not be deemed an exclusive election of remedy or waiver of The Phillies' right to pursue
any other remedy to which either may be entitled.
(d) Specific Performance. In addition to all other rights and remedies hereunder,
The Phillies shall be entitled to seek specific performance of this Agreement by the City
including specifically but without limitation those covenants as provided in Section 3.03,
Section 3.09, Section 4.05, ARTICLE 6, and ARTICLE 8 hereof.
(e) The Phillies Completion of Infrastructure Improvements.
Upon the
occurrence of a City Event of Default in the construction and completion of the
Infrastructure Improvements which is not cured as herein provided, The Phillies may
elect, at its option, without limiting The Phillies' right to pursue any other remedy
provided in this Agreement (including, without limitation, The Phillies' right to pursue
damages), to undertake and complete construction of the Infrastructure Improvements in
such a manner as The Phillies deems reasonably necessary or appropriate under the
circumstances. The City covenants and agrees that each contract or agreement entered
into by the City for completion of all or any of the Infrastructure Improvements shall be,
by its terms, expressly assignable to The Phillies or its nominee or designee. In such
event, the Infrastructure Plans and Specifications, working drawings, construction
contracts, contract documents, Building Permits, Governmental Approvals and any other
documents or information related to the construction of the Infrastructure Improvements
will be deemed then assigned by the City to The Phillies without the necessity of any
other action being taken or not taken by any party hereto, and City shall undertake all
steps as are reasonably necessary to assist The Phillies in gaining access to the areas upon
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which the Infrastructure Improvements are to be made. In the event The Phillies elects to
exercise such construction of the Infrastructure Improvements, the City shall be obligated
to promptly reimburse The Phillies for all costs (including any costs of overtime or
premium work necessary to achieve the completion of the Infrastructure Improvements in
accordance with the Infrastructure Improvements Schedule or as required to avoid delay
in completion of the Community Sports Complex), incurred by The Phillies in connection
with such construction of the Infrastructure Improvements, which reimbursements shall
be made from funds as are available from the City for the Infrastructure Improvements
and shall then be made from such other funds as are legally available to the City.
Section 14.03. Tolling 0/ Time Periods. Any time periods or deadlines provided in this
Agreement and imposed on The Phillies shall be tolled or extended by the amount of time to cure
any City Event of Default if such default or breach affects The Phillies' ability to perform by
such deadline or the expiration of such period and any time periods or deadlines provided in this
Agreement and imposed on the City shall be tolled or extended by the amount of time to cure
any Phillies Event of Default if such default or breach affects the City's ability to perform by
such deadline or the expiration of such period.
Section 14.04. Obligations, Rights and Remedies Cumulative. Unless specifically stated
herein to the contrary, the specified rights and remedies to which either the City or The Phillies
are entitled under this Agreement are not exclusive and are intended to be in addition to any
other remedies or means of redress to which the City or The Phillies may lawfully be entitled and
are not specifically prohibited by this Agreement. The suspension of, or delay in, the
performance of its obligations by The Phillies, during the continuance of a City Event of Default,
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shall not be deemed to be. a "Phillies Event of Default." The suspension of, or delay in, the
performance of the obligations by the City, during the continuance of a Phillies Event of Default,
shall not be deemed to be a "City Event of Default."
Section 14.05. Non-Action on Failure to Observe Provisions of this Agreement. The
failure of the City or The Phillies to promptly or continually insist upon strict performance of any
term, covenant, condition or provision of this Agreement, or any exhibit hereto, or any other
agreement, instrument or document of whatever form or nature contemplated hereby shall not be
deemed a waiver of any right or remedy that the City or The Phillies may have, and shall not be
deemed a waiver of a subsequent default or nonperformance of such term, covenant, condition or
provISIon.
Section 14.06. Termination.
(a) Conditions. In addition to the rights of termination specified in Section 3.08,
Section 4.05, Section 4.07, Section 5.03(a) Section 6.01, or elsewhere in this Agreement,
The Phillies and the City acknowledge and agree that if, as of the Conditions Satisfaction
Date, certain matters mutually agreed by the parties which are essential to the successful
development of the Community Sports Complex have not been satisfied or are subject to
certain conditions, legal requirements or approvals beyond the control of either of the
parties hereto' or which cannot be definitely resolved under this Agreement, then, in
recognition of these events or conditions, the parties hereto mutually agree that, provided
the appropriate or responsible party therefor diligently and in good faith exercises its best
efforts to cause such event or condition to occur or be satisfied, the failure of the events
or conditions listed in subsection (b) below to occur or be satisfied shall not constitute
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either a Phillies Event of Default or a City Event of Default under this ARTICLE 14
(except to the extent expressly provided in subsection (b) below), but may be the basis for
a termination of this Agreement as provided in this Section 14.06, unless waived in
writing by the party having such right of termination.
(b) Prior to Conditions Satisfaction Date. In addition to any other rights of
termination provided elsewhere in this Agreement, this Agreement may be terminated
prior to the Conditions Satisfaction Date after the occurrence of any of the following
events or conditions:
(i) All of the Project Site is taken by a Taking by a governmental
authority (except the City) or a Person entitled to exercise such power or
benefiting therefrom, or such part of the Project Site is taken by a Taking
so as to render the Community Sports Complex commercially unfeasible
or unusable for its intended uses as contemplated by this Agreement;
(ii) The City has denied or failed to approve Infrastructure
Improvements Plans and Specifications or has denied or failed to issue the
Building Permit;
(iii) A moratorium on new construction is imposed by a governmental
authority within the City or the County so as to prevent the
commencement or continuance of the Project;
(iv) The City or other appropriate governmental authority has issued a
concurrency compliance certificate or a reservation of services capacity as
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described in Section 4.05 and such certificate or reservation has been
revoked, repealed, superseded, or otherwise no longer of any effect or The
Phillies is unable to rely upon such certificate or reservation, if such a
certificate or reservation is required for development of the Community
Sports Complex on the Project Site, and The Phillies cannot obtain a new
or replacement certificate or reservation for the Community Sports
Complex; or
(v) Issuance of the Bonds; provided, however, that failure, despite
exercising the City's best efforts, to issue the Bonds as a result of any
condition other than (1) failure to obtain a final non-appealable judgment
of validation of the Bonds by a court of competent jurisdiction or (2) a so
called "market out" condition relative to the sale and issuance of the
Bonds wherein market conditions make the Bonds either unsaleable or the
amount to be received as a result of such sale shall be materially and
substantially less than the targeted $14,000,000 net principal amount (i. e.,
the gross proceeds from the sale or issuance of the Bonds less Costs of
Issuance) contemplated to be received by the City, shall not give the City
any right to terminate this Agreement pursuant to the terms of this Section
14.06 and shall constitute a City Default under Section 14.02 hereof.
(c) Liability. In the event of a termination pursuant to paragraph (b) immediately
preceding, neither The Phillies nor the City shall be obligated or liable one to the other in
any way, financially or otherwise, for any claim or matter arising from or as a result of
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this Agreement or any actions taken by The Phillies and the City, or any of them,
hereunder or contemplated hereby, and each party shall be responsible for its own costs;
provided, however, except for the condition of termination set forth in Section 14.06(b)
(i), upon such termination, including without limitation as a result of any of such rights of
termination provided Section 3.08, Section 4.05, Section 4.07, or Section 6.01, the City
shall reimburse The Phillies for all Pre-Construction Costs incurred by The Phillies as of
the date of such termination, or which later become due as a result of architectural,
engineering and/or design services performed prior to the date of such termination.
(d) Subsequent Satisfaction. Notwithstanding anything to the contrary contained
herein, in the event that either party shall have, but shall not exercise, the right hereunder
to terminate this Agreement because of the non-satisfaction of any condition specified
herein, and such condition is subsequently satisfied, then the non-satisfaction of such
condition shall no longer be the basis for termination of this Agreement.
Section 14.07. Agreement Termination Certificate. In the event of a termination of this
Agreement for any reason provided herein prior to the Completion Date, each of the parties
hereto do covenant and agree with each other to promptly execute a certificate prepared by the
party electing to terminate this Agreement, which certificate shall expressly state that this
Agreement has been terminated in accordance with its terms, is no longer of any force and effect
except for those provisions hereof which expressly survive termination, that the rights, duties and
obligations of the parties hereto have been terminated and released (subject to those surviving
provisions hereof) and that the Project Site is no longer subject to any restrictions, limitations or
encumbrances imposed by this Agreement. The certificate shall be prepared in a form suitable
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for recording and promptly after execution by all of the parties hereto shall be recorded in the
Public Records of the County, at the cost of the terminating party.
ARTICLE 15
MISCELLANEOUS.
Section 15.01. Assignments.
(a) 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:
(i) The Phillies shall have the right to transfer all or part or parts of its
rights to one or more special purpose entities which are Affiliates of The
Phillies, provided, however, that The Phillies shall remain jointly and
severally obligated for the performance of this Agreement.
(ii) The Phillies shall have the right to transfer all of its rights and
obligations under this Agreement to any Person that shall hereafter own
the Club, in which case The Phillies shall be released by the City from any
and all obligations or liabilities arising hereunder; provided, however, that
Major League Baseball approves the transfer of the Club to such
transferee.
(iii) The Phillies shall also have the right to transfer its interest in this
Agreement to another Major League Baseball club, in which case The
Phillies shall be released by the City from any and all obligations or
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liabilities arising hereunder; provided, that such transferee shall assume
the obligations of The Phillies under this Agreement
(iv) No transfer under this Section 15.01 shall release The Phillies from
any pre-existing liabilities under this Agreement, including, without
limitation, any indemnification obligations of The Phillies which arise
prior to the date of such transfer, except to the extent that the same have
been assumed by the successor in the case of clauses (ii) and (iii) above
and the City has been provided with satisfactory evidence of such
assumption and approval.
(b) By the City. The City may not assign it rights or duties under this Agreement
without the consent of The Phillies, in its discretion.
Section 15.02. Successors and Assigns. Subject to Section 15.01, this Agreement shall
be binding upon the parties hereto as well as their respective successors and/or permitted assigns.
Section 15.03. 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 the City:
Pam Akin, Esquire
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112 South Osceola Avenue, 3 rd Floor
Clearwater, Florida 33756
!fto The Phillies:
Veterans Stadium
P.O Box 7575
Philadelphia, Pennsylvania 19101
Attention: David P. Montgomery, President
and
William Y. Webb, Esquire,
Vice President, General Counsel and Secretary
Notice 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.
Section 15.04. Applicable Law and Construction. The laws of the State of Florida shall
govern the validity, performance and enforcement of this Agreement. No provision of this
Agreement shall be construed against or interpreted to the disadvantage of any party hereto by
any court or other governmental or judicial authority by reason of such person having or being
deemed to have structured or dictated such provision.
Section 15.05. Venue; Submission to Jurisdiction.
(a) Venue. For purposes of any suit, action, or other proceeding arising out of or
relating to this Agreement, the parties hereto do acknowledge, consent, and agree that
venue thereof is Pinellas County, Florida.
(b) Jurisdiction. Each party to this Agreement hereby submits to the jurisdiction
of the State of Florida, Pinellas County, and the courts thereof and to the jurisdiction of
the United States District Court for the Middle District of Florida (Tampa Division), for
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the purposes of any suit, action, or other proceeding arising out of or relating to this
Agreement and hereby agrees not to assert by way of a motion as a defense or otherwise
that such action is brought in an inconvenient forum or that the venue of such action is
improper or that the subject matter thereof may not be enforced in or by such courts.
(c) Designation of Agent for Service of Process. If at any time during the term of
this Agreement The Phillies is not a resident of the State or has no office, employee,
agency or general partner thereof available for service of process as a resident of the
State, or if any permitted assignee thereof shall be a foreign corporation, partnership or
other entity or shall have no officer, employee, agent, 'or general partner available for
service of process in the State, The Phillies hereby designates the Secretary of State, State
of Florida, its agent for the service of process in any court action between it and the City
arising out of or relating to this Agreement and such service shall be made as provided by
the laws of the State of Florida for service upon a non-resident; provided, however, that
at the time of service on the Florida Secretary of State, a copy of such service shall be
delivered to The Phillies at the address for notices as provided in Section 15.03.
Section 15.06. Agreement Not a Development Agreement Phillies and the City
acknowledge, agree and represent that this Agreement, including, without limitation, any of the
exhibits, is not a development agreement as described in Sections 19-31, Chapter 86-191, Laws
of Florida, codified as Sections 163.3220-163.3243, Florida Statutes.
Section 15.07. Estoppel Certificates. The Phillies and the City shall at any time and from
time to time, upon not less than ten (10) days' prior written notice by the other party hereto, but
not more frequently than twice during any calendar year, execute, acknowledge and deliver to
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such other party a statement certifying that this Agreement has not been modified and is in full
force and effect (or if there have been modifications that the said Agreement as modified is in
full force and effect and setting forth a notation of such modifications), and that to the
knowledge of such party, neither it nor the other party hereto is then in default hereof (or if any
party is then in default hereof, stating the nature and details of such default), it being intended
that any such statement delivered pursuant to this Section 15.07 may be relied upon by any
prospective purchaser, mortgagee, successor, assignee of any mortgage or assignee of the
respective interest in the Community Sports Complex, if any, of any party made in accordance
with the provisions of this Agreement.
Section 15.08. Entire Agreement; Amendments. This Agreement, and all the terms and
provisions contained herein, including without limitation the exhibits hereto, and the Use
Agreement constitute the full and complete agreement between the parties hereto to as of the
date hereof, and supersedes and controls over any and all prior. agreements, understandings,
representations, correspondence and statements whether written or oral, including without
limitation the Project Term Sheet, which has been terminated pursuant to the terms hereof. Any
provisions of this Agreement shall be read and applied in para materia with all other provisions
hereof. Neither this Agreement nor the Use Agreement can be changed or revised except by
written amendment signed by all parties hereto.
Section 15.09. Headings. The Article, Section and paragraph headings used herein are
for convenience of reference only and are not to be used in the construction or interpretation
hereof.
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Section 15.10. Exhibits. Any and all exhibits attached to this Agreement are an integral
part hereof and are hereby incorporated by reference for all purposes.
Section 15.11. 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. 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, the faith and credit of the City, or the taxing authority (ad valorem or
otherwise) of the City.
Section 15.12. No Brokers. The City and The Phillies hereby represent, agree and
acknowledge that no real estate broker or other person is entitled to claim or to be paid a
commission as a result of the execution and delivery of this Agreement, or any proposed
improvement, use, disposition, lease, conveyance or acquisition of any or all of the Project Site.
Section 15.13. Not an Agent. During the term of this Agreement, The Phillies shall not
be an agent of the City, with respect to any and all services to be performed by The Phillies (and
any of its agents, assigns, or successors) with respect to the Community Sports Complex or the
Project, and the City shall not be an agent of The Phillies (and any of its agents, assigns, or
successors), with respect to the Community Sports Complex or the Project.
Section 15.14. Time of Essence. Except to the extent otherwise expressly provided
herein, time is of the essence of this Agreement.
Section 15.15. 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
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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.
Section 15.16. Certain Disputes. The parties agree that in any provlSlon of this
Agreement which provides for resolution of any dispute resolving a party's performance of such
provision by Expedited ADR, such dispute shall be resolved by the Expedited ADR provisions
of this Agreement set forth on Exhibit "1".
Section 15.17. Alternative Dates Agreed to By Parties. To the extent any provision of
this Agreement provides for a date certain which is followed by the phrases "or such other date
agreed to in writing by the parties" or "or such other date agreed to by the parties" such phrase or
phrases shall not be deemed to obligate either party to consent or agree to a modification of the
fixed date therefor, but such consent or agreement shall be in the respective discretion of the
parties.
Section 15.18. Memorandum of Development Agreement. The City and The Phillies
agree to execute, in recordable form, on the Conditions Satisfaction Date, the short form
"Memorandum of Agreement for Development of Community Sports Complex," the form of
which is attached hereto as Exhibit "F" and agree, authorize and hereby direct such memorandum
to be recorded in the public records of the County, as soon as possible after execution thereof.
The City shall pay the cost of such recording.
Section 15.19. Technical Amendments. In the event that due to mmor inaccuracies
contained herein or any exhibit attached hereto or any other agreement contemplated hereby, or
due to changes resulting from technical matters arising during the term of this Agreement, the
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parties agree that amendments to this Agreement required due to such inaccuracies, unforeseen
events or circumstances which do not change the substance of this Agreement may be made and
incorporated herein. The Authorized Representative of the City is authorized to approve such
technical amendments on behalf of the City and the Authorized Representative of The Phillies is
authorized to approve such technical amendments on behalf of The Phillies, respectively, and
each is authorized to execute any required instruments, to make and incorporate such amendment
to this Agreement or any exhibit attached hereto or any other agreement contemplated hereby.
Section 15.20. Term; Expiration; Certificate. If not earlier terminated as provided in
Section 14.06 or otherwise provided in this Agreement, the term of this Agreement shall expire
and this Agreement shall no longer be of any force and effect (except for those matters which
specifically survive such expiration) on the date of recording in the Public Records of the County
of either the Community Sports Complex Completion Certificate duly executed by the parties or
a Completion Compliance Affidavit. Upon completion of the term of this Agreement, all parties
hereto shall execute the Agreement Expiration Certificate. The Agreement Expiration Certificate
shall constitute (and it shall be so provided in the certificate) a conclusive determination of
satisfactory completion of all obligations hereunder and the expiration of this Agreement and an
acceptance of the Community Sports Complex by the City. The Agreement Expiration
Certificate shall be in such form as will enable it to be recorded in the public records of Pinellas
County, Florida. Following execution by all of the parties hereto, the Agreement Expiration
Certificate shall promptly be recorded by The Phillies in the Public Records of the County, and
the City shall pay the cost of such recording.
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Section 15.21. Expiration on Day Other than Business Day. To the extent any period of
time or deadline for performance or requirement for notice under or pursuant to the terms of this
Agreement shall expire on a day which is not a Business Day, such period of time or deadline for
performance shall be extended until the next succeeding Business Day.
Section 15.22. Effective Date. The effective date of this Agreement shall be the Dated
Date.
[Remainder of Page Intentionally Blank;
Signatures are on Immediately Following Page]
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IN WITNESS WHEREOF, the parties hereto have set their hands and their respective
seals affixed as of the date first above written.
THE CITY OF CLEARWATER, FLORIDA
By:
as its Mayor-C
ATTEST:
BY:tfl~,~ ,
as its interim City Manager
By: C@'~). JL.12. .
City\ ierk
Approved as to form and legal
Sufficiency
11
CIty Attorney
THE PHILLIES, a Pennsylvania limited partnership
By:
David P. Montgomery,
er
Exhibits:
A-Legal Description of Exhibit "A" Property
B-Form of Agreement Expiration Certificate
C-Form of Agreement Termination Certificate
D-Form of Community Sports Complex Completion Certificate
E-Form of Infrastructure Improvements Completion Certificate
F-Form of Memorandum of Development Agreement
G-Proj ect Schedule
H-Scope of Work (Note: This Exhibit is to be attached subsequent to the Dated Date pursuant
to the provisions of Error! Reference source notfound.hereof)
I-Itemization of Infrastructure Improvements
J-Expedited ADR Provisions
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EXHIBIT" A"
LEGAL DESCRIPTION OF EXHIBIT" A" PROPERTY
PARCEL 1: (Parking Lot Parcel)
A parcel of land within the Southwest 'l4 of the Southeast 'l4 of Section 7, Township 29 South,
Range 16 East, Pinellas County, Florida and being further described as follows:
Commence at the Southwest comer of the Southeast 'l4 of said Section 7; thence along the West
line of said Southeast 'l4 North 00041 '47" East, for 50.00 feet to the North right-of-way line of
Drew Street; thence along said right-of-way line South 89040' 19" East, for 542.36 feet to the
Point of Beginning; thence leaving said line North 00041 '47" East, for 435.00 feet; thence South
89040'19" East, for 761.22 feet to the West right-of-way line of Old Coachman Road; thence
along said right-of-way line South 00047'54" West, for 435.00 feet to the intersection with said
North right-of-way of Drew Street; thence along said right-of-way line North 89040' 19" West;
for 760.45 feet to the Point of Beginning.
PARCEL 2: (Baseball and Soccer Fields Parcel)
A parcel of land lying within the" Southwest 'l4 of the Southeast 'l4 of Section 7, Township 29
South, Range 16 East Pinellas County, Florida and being further described as follows:
Commence at the Southwest comer of the Southeast 'l4 of said Section 7; thence along the West
line of said Southeast 'l4 North 00041 '47" East, for 485.00 feet to the Point of Beginning; thence
continue along said line North 00041 '47" East, for 823.27 feet to the South right-of-way line of
Sharkey road (CR 289); thence along said right-of-way line South 89053 '02" East, for 1,305.10
feet to the intersection of with the West right-of-way line of Old Coachman Road; thence along
said right-of-way line South 00047'54" West, for 828.12 feet; thence leaving said line North
89040'19" West, for 1303.58 feet to the Point of Beginning.
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EXHIBIT "B"
AGREEMENT EXPIRATION CERTIFICATE
[Community Sports Complex]
This Agreement Expiration Certificate ("Certificate") is made this _
day of , _,- by and between the CITY OF CLEARWATER,
FLORIDA, a municipal corporation of the State of Florida (the "City"), and THE
PHILLIES, a Pennsylvania limited partnership (the "Phillies").
This Certificate pertains to an Agreement for Development of
Community Sports Complex, by and between the City and the Phillies, dated as of
March 1, 2001 (the "Development Agreement"), which provides, among other things,
for the for the development and construction of the Community Sports Complex, as
same is defined in the Development Agreement on property located within a project
site as described in Exhibit "A" attached hereto and made a part hereof and the
construction and installation of the Infrastructure Improvements on and in the
vicinity of the property described in Exhibit "A."
The Development Agreement has expired in accordance with its own
terms as of _, , and is no longer of any force or effect, except to
the extent of those provisions of the Development Agreement which expressly
survive the expiration or termination of the Development Agreement as provided
therein. This Certificate has been executed by the parties to the Development
Agreement as provided in Section 15.20 thereof and constitutes a conclusive
determination of satisfactory completion of all obligations under such Agreement,
except for those that survive beyond the expiration of such agreement as specifically
provided therein, and that the Development Agreement has expired.
A copy of the fully-executed Development Agreement is on file with the
City Clerk, City of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue,
Clearwater, Florida, which is available for review and copying by the public.
IN WITNESS WHEREOF, the parties hereto have set their hands and
their respective seals affixed as of the _ day of , _'
CITY OF CLEARWATER, FLORIDA
By:
Mayor-Commissioner
)
I
(SEAL)
ATTEST:
By:
City Clerk
THE PHILLIES
By:
, General Partner
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day
of , by , Mayor of the City of Clearwater, a
municipal corporation of the State of Florida, on behalf of the City. He is personally
known to me or has produced a valid driver's license as identification.
(SEAL)
Printed/Typed Name:
Notary Public-State of Florida
Commission Number:
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this _ day
of , _, by as General Partner of The Phillies, a Pennsylvania
limited partnership, on behalf of the partnership. He is personally known to me or
has produced a valid driver's license as identification.
(SEAL)
PrintedlTyped Name:
Notary Public-State of
Commission Number:
ORLl #635614 vI
03/29/2001
2
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EXHIBIT "C"
AGREEMENT TERMINATION CERTIFICATE
[Community Sports Complex]
This Agreement r:rermination Certificate ("Certificate") is made this
_ day of , _, by and between the CITY OF CLEARWATER,
FLORIDA, a municipal corporation of the State of Florida (the "City"), and THE
PHILLIES, a Pennsylvania limited partnership (the "Phillies").
This Certificate pertains to an Agreement for Development of a
Community Sports Complex, by and between the City and the Phillies, dated as of
March 1, 2001 (the "Development Agreement"), which provides, among other things,
for the for the development and construction of the Community Sports Complex, as
same are defined in the Development Agreement, on property within a project site
as described in Exhibit "A" attached hereto and made a part hereof and the
construction and installation of the Infrastructure Improvements on and in the
vicinity of the property described in Exhibit "A."
The Development Agreement has terminated in accordance with its
own terms as provided in Section 14.06 thereof as of _, , and is no
longer of any force or effect except for those provisions which expressly survive
termination. This Certificate has been executed by the parties to the Development
Agreement as provided in Section 14.07 thereof and constitutes a conclusive
determination that the Development Agreement has been terminated, the rights,
duties and obligations of the parties hereto have been terminated and released
(subject to those surviving provisions).
A copy of the fully-executed Development Agreement is on file with the
City Clerk, City of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue,
Clearwater, Florida, which is available for review and copying by the public.
IN WITNESS WHEREOF, the parties hereto have set their hands and
their respective seals affixed as of the _ day of , _'
CITY OF CLEARWATER, FLORIDA
By:
Mayor-Commissioner
(SEAL)
ATTEST:
By:
City Clerk
I
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THE PHILLIES, a Pennsylvania limited
partnership
By:
As Its General Partner
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day
of , by . as Mayor-Commissioner of the City of
Clearwater, a municipal corporation of the State of Florida, on behalf of the City.
He is personally known to me or has produced a valid driver's license as
identification.
(SEAL)
Printed/Typed Name:
Notary Public-State of Florida
Commission Number:
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this _ day
of , _, by as General Partner of The Phillies, a Pennsylvania
limited partnership, on behalf of the partnership. He is personally known to me or
has produced a valid driver's license as identification.
(SEAL)
Printed/Typed Name:
Notary Public-State of
Commission Number:
ORLl #635631 vI
03/29/2001
2
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EXHIBIT "D"
COMMUNITY SPORTS COMPLEX
COMPLETION CERTIFICATE
This Community Sports Complex Completion Certificate is made this _ day
of _,200_, by and between the CITY OF CLEARWATER, FLORIDA, a municipal
corporation of the State of Florida (the "City"), and THE PHILLIES, a Pennsylvania
limited partnership (the "Phillies").
This Certificate pertains to an Agreement for Development of
Community Sports Complex, by and between the City and the Phillies, dated as of
March 1, 2001 (the "Development Agreement"), which provides, among other things,
for the for the development and construction of the Community Sports Complex, as
same is defined in the Development Agreement.
Pursuant to Section 7.09 of the Development Agreement and by the
execution of this Certificate by an Authorized Representative, the Phillies does
hereby certify to the City that there is Substantial Completion of the Community
Sports Complex. The Project Architect(s) certification of Substantial Completion of
the Community Sports Complex has been delivered to the City together with this
Certificate.
As provided in Section 7.09 of the Development Agreement, the City
has received this Certificate and the Project Architect(s) certification of Substantial
Completion, and did after such receipt, in its capacity as the owner of the
Community Sports Complex, inspect such complex with the Authorized
Representative of the Phillies and a representative of the Project Architect(s).
Based upon such inspection, the City has determined that (i) the Community Sports
Complex has been constructed in material and substantial compliance with the
Scope of Work, the Community Sports Complex Plans and Specifications and this
Agreement, and without materially significant deviation from the exterior
appearance of the Community Sports Complex and the configuration of the
Community Sports Complex on the Project Site as set forth in the Conceptual
Drawings and the approved Site Plan and (ii) the Community Sports Complex
meets the standard of a first class Major League Baseball spring training facility
(collectively, the "Community Sports Complex Acceptance Standards"), other than
normal "punchlist" items.
The City's execution of this Certificate constitutes the City's conclusive
acknowledgement that the Community Sports Complex has met the Community
Sports Complex Acceptance Standards and constitutes a conclusive determination
by the City of its acceptance and approval, as owner, of the Community Sports
Complex..
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IN WITNESS WHEREOF, the parties hereto have set their hands and
their respective seals affixed as of the date set forth above.
CITY OF CLEARWATER, FLORIDA
By:
Authorized Representative
THE PHILLIES
By:
Authorized Representative
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day
of , by , as the Authorized Representative of the
City of Clearwater, a municipal corporation of the State of Florida, on behalf of the
City. He is personally known to me or has produced a valid driver's license as
identification.
(SEAL)
Printed/Typed Name:
Notary Public-State of Florida
Commission Number:
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this _ day
of , -' by as Authorized Representative of The Phillies, a
Pennsylvania limited partnership, on behalf of the partnership. He is personally
known to me or has produced a valid driver's license as identification.
(SEAL)
Printed/Typed Name:
Notary Public-State of
Commission Number:
ORL1 #641504 v1
2
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EXHIBIT "E"
INFRASTRUCTURE IMPROVEMENTS
COMPLETION CERTIFICATE
This Community Sports Complex Completion Certificate is made this _ day of
_, 200_, by and between the CITY OF CLEARWATER, FLORIDA, a municipal
corporation of the State of Florida (the "City").
This Certificate pertains to an Agreement for Development of Community
Sports Complex, by and between the City and The Phillies, a Pennsylvania limited
partnership (the "Phillies"), dated as of March 1, 2001 (the "Development Agreement"),
which provides, among other things, for the for the development and construction of the
Community Sports Complex, and the design, construction, installation and equipping of
the Infrastructure Improvements, as same is defined in the Development Agreement.
Pursuant to Section 6.05 of the Development Agreement and by the
execution of this Certificate by an Authorized Representative, the City does hereby
certify to the Phillies that all of the Infrastructure Improvements have been completed
in accordance with, and as required by the Development Agreement and the
Infrastructure Improvements Plans and Specifications.
IN WITNESS WHEREOF, the City has set its hand as of the date set
forth above.
CITY OF CLEARWATER, FLORIDA
By:
Authorized Representative
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day of
by , as the Authorized Representative of the City of
Clearwater, a municipal corporation of the State of Florida, on behalf of the City. He is
personally known to me or has produced a valid driver's license as identification.
(SEAL)
PrintedITyped Name:
Notary Public-State of Florida
Commission Number:
ORLl #641505 vI
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EXHIBIT "F'
MEMORANDUM OF DEVELOPMENT AGREEMENT
[Community Sports Complex]
This Memorandum of Agreement for Development of Community
Sports Complex ("Memorandum") is made this _ day of ,2001, by
and between the CITY OF CLEARWATER, FLORIDA, a municipal corporation of
the State of Florida (the "City"), and THE PHILLIES, a Pennsylvania limited
partnership (the "Phillies").
This Memorandum pertains to an Agreement for Development of
Community Sports Complex, by and between the City and the Phillies, dated as of
March 1,2001 (the "Development Agreement"), which provides, among other things,
for the development and construction of the Community Sports Complex property
within a project site as described in Exhibit "A" attached hereto and made a part
hereof, and construction of the Infrastructure Improvements, as same are defined in
the Development Agreement on and in the vicinity of the property described in
Exhibit "A."
The Development Agreement is incorporated herein and made a part
hereof by reference as fully as though it were set forth herein in its entirety. It is
the intention of the parties to hereby ratify, approve and confirm the Development
Agreement as a matter of public notice and record. Nothing herein shall in any way
affect or modify the Development Agreement, nor shall the provisions of this
Memorandum be used to interpret the Development Agreement. In the event of
conflict between the terms of this document and those contained in the
Development Agreement, the terms in the Development Agreement shall control.
A copy of the fully-executed Development Agreement is on file with the
City Clerk, City of Clearwater, Florida, located at City Hall, 112 S. Osceola Avenue,
Clearwater, Florida, which is available for review and copying by the public.
IN WITNESS WHEREOF, the parties hereto have set their hands and
their respective seals affixed as of the _ day of ,2001.
CITY OF CLEARWATER, FLORIDA
By:
Its Mayor-Commissioner
I
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(SEAL)
ATTEST:
By:
City Clerk
THE PHILLIES, a Pennsylvania limited
partnership
By:
David P. Montgomery as
Its Managing Partner
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day
of , 2001, by , as Mayor-Commissioner of the City of
Clearwater, a municipal corporation of the State of Florida, on behalf of the City.
He is personally known to me or has produced a valid driver's license as
identification.
(SEAL)
PrintedITyped Name:
Notary Public-State of Florida
Commission Number:
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this _ day
of , 2001, by David P. Montgomery, as General Partner of The Phillies, a
Pennsylvania limited partnership, on behalf of the partnership. He is personally
known to me or has produced a valid driver's license as identification.
(SEAL)
2
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Printed/Typed Name:
Notary Public-State of
Commission Number:
ORLl #635670 vI
03/29/2001
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EXH:SIT II~~ _hI'
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EXHIBIT "H"
SCOPE OF WORK
TO BE ATTACHED PURSUANT TO SECTION 5.02(a) OF
FOREGOING AGREEMENT
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EXHIBIT "I'
ITEMIZATION
OF
INFRASTRUCTURE IMPROVEMENTS
[Community Sports Complex]
This is the Itemization of Infrastructure Improvements contemplated by Section
6.01 of the Agreement for Development Community Sports Complex, by and between
the City of Clearwater, Florida, and The Phillies, dated as of March 1, 2001. This
itemization includes those Infrastructure Improvements identified by the City as of March
1,2001, and is subject to change by the parties as provided in the Agreement. Upon any
such changes being approved then this Exhibit "I" will be amended, revised or replaced to
reflect such changes.
. Construct southbound right turn lane (storage and deceleration) from Old Coachman
Road to project entrance.
. Construct northbound left turn lane from Old Coachman Road to project entrance.
. Construct additional southbound lane on Old Coachman Road from project entrance
to Drew Street.
. Construct westbound right turn lane (storage and deceleration) from Drew Street to
project entrance.
. Remove median and stripe to include an eastbound left turn lane from Drew Street to
project entrance.
. Construct five foot wide sidewalk on each side of Old Coachman Road from Drew
Street to Sharkey Road.
. Provide striped pedestrian crosswalks at the Sharkey Road! Old Coachman Road
intersection, and at pedestrian access points to the project site.
ORLl #641501 vI
03/29/2001
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EXHIBIT" J"
EXPEDITED ADR
All claims, demands, disputes, controversies and differences that may arise under this
Agreement between the parties, concerning any controversies under the Sections of this
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 of the
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 of the Panel, then representatives of the parties will meet
promptly and the following procedures will be used: The Phillies will strike the name of a
person on the list. Within fifteen minutes thereafter, the City 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 City or The Phillies may join any other party to the arbitration which is
needed for just adjudication. The standard for joinder of any other party shall be that provided
under Rule 19 of the Florida Rules of Civil Procedure.
5. If the Panel determines that either party's position in the dispute was without
merit, such party will pay the other party's reasonable attorneys' fees and costs related to the
arbitration, 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
TPA1\INSTLEND\62392.1
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proceedings. In all other cases, the parties will share equally the costs of such arbitration and
will pay their own attorneys' fees.
6. At least ten days prior to the hearing, the parties shall meet and exchange exhibits
and pre-hearing statements and stipulate and agree on non-disputed facts. No exhibit shall be
admitted unless listed on the pre-hearing statement and exchanged between the parties. No
witness may be presented unless indicated on. the pre-hearing statement or unless produced for
rebuttal purposes. Prior to or at the hearing, each party shall submit a memorandum not to
exceed five pages outlining the relevant issues for the Panel. At the hearing, the laws of
evidence of the State of Florida shall apply, and the Panel shall allow each party to present that
party's case, evidence and witnesses and render its award, including a provision for payment of
attorneys' fees and costs of arbitration to be paid by one or both of the parties to this Agreement,
as the Panel deems just.
TPA 1 IINSTLEND\62392.1
27313/0001 WKI wki 3/1/01 6:21 PM
11
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STATE OF FLORIDA
COUNTY OF PINELLAS
. ,f~
THE FOREGOING INSTRUMENT was acknowledged before me thIS L day
of March, 2001, by David P. Montgomery, as general partner of The Phillies, a Pennsylvania
limited partnership, on behalf of the partnership. He/she e is personally known to me or e has
produced as identification. [Notary,
check appropriate blank; and, if obtaining identification, fill in appropriate identification
My Commission Expires:
~fkwn(l/a.~
Notary Public /J -
))EIINNII fl. N6,cLiLLI S
(printed Name of Notary)
QJ!R7 33 SO
(Serial Number, if any)