SECOND AMENDMENT TO BASEBALL TRAINING FACILITY USE AGREEMENTSECOND AMENDMENT TO BASEBALL
TRAINING FACILITY USE AGREEMENT
THIS Second Amendment to that certain Baseball Training Facility Lease
Agreement, dated December 31, 2000, as heretofore amended ("Agreement") is hereby
made and entered into on March ;V7 , 2009 between the City of Clearwater, Florida, a
municipal corporation of the State of Florida ("City") and Phillies Florida LLC, a
Delaware limited liability company ("the Phillies") (each party individually referred to
herein as "Party" or collectively as the "Parties")
WHEREAS, the City and the Phillies entered into the Agreement, which sets out
the terms and conditions for the Phillies' use and occupancy of, and of the Parties'
respective rights and obligations in respect to, certain property commonly known as the
Carpenter Complex (as more particularly described in Exhibit "A" attached thereto and
incorporated therein); and
WHEREAS, the Parties have agreed to make certain improvements to the
Carpenter Complex spring training facility and otherwise revise the Agreement as
provided for herein.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants
and conditions contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are acknowledged by each of the parties hereto, the
Agreement is hereby amended as follows:
Recitals. The foregoing recitals are true and correct and are incorporated
in and form a part of this Second Amendment.
1 In accordance with Section 10, Alterations and Additions by the Phillies,
Subsection 10.2, the following improvements will be made to the Carpenter Complex
(the "Project"):
a. the following renovations in approximately 7,000 sq. ft. of the
ground floor of the existing operations building, namely, enlargement of coaches locker
rooms and trainers area, upgrades to restrooms and meeting rooms, expansion of kitchen
and feeding areas and additional storage and laundry areas; and
b. the addition of 5,650 sq. ft. of second floor space, to include
additional offices, conference rooms, restrooms and storage areas.
All of the foregoing shall be constructed in accordance with plans and specifications
designed and delivered by the City's architect of record, Wannamaker Jensen Architects,
# 315-93606, entitled "Carpenter Complex Improvements."
The Project will be managed by the Phillies and effected by a construction
company that the Phillies select through 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 the contract, including but not limited to, all requirements of the Florida
Statutes and the City of Clearwater Code of Ordinances.
4. The City will fund the Project up to a maximum of Three Million Two
Hundred Thousand Dollars xx/100 ($3,200,000), which will be disbursed through the
City's purchase order process as appropriate invoices are received by the City from the
Phillies.
5. The Phillies will be responsible for any Project cost overrun above City's
$3,200,000 contribution and theretofore will have the right to make additive and
subtractive change orders, for which it shall be responsible to the extent of any excess. In
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no event shall the City be responsible to fund any amount over the amount set forth
herein and the Phillies shall guaranty completion of the Project and indemnify the City
for any amounts required over the City-funded amount in order to complete the Project.
6. The City will purchase, bear the risk of loss with respect to, and insure for
its own benefit, and the benefit of the Phillies, all construction materials specified by the
Phillies.
T In order to discharge the City's duty to insure Project materials as
provided for in Section 6 above, the Phillies will, at its own expense, add the City as an
additional insured under its builder's risk insurance for the Project and the City will (as a
charge against its funding commitment) reimburse the Phillies for that portion of the
insurance cost that relates to construction materials purchased by the City. The Parties
agree to adjust these procedures as may be necessary to conform to sales tax regulations.
8. The City agrees that at the time of execution of this Amendment, there are
no unfulfilled City regulatory or permitting approvals relating to the Project. However,
in accordance with Section 10.2 of the Agreement, City's consent for the Project is
conditioned upon the Phillies acquiring any necessary permits from applicable
government agencies other than City.
9. Section 9.1 is deleted in its entirety and shall be replaced with the
following:
9.1. Phillies and City Obligations. The Phillies agrees
during its period of use to maintain the clubhouse and the weight
training facility on the Demised Premises in a clean and orderly
condition, provided that the City will until September 30, 2009 at
its expense supply one janitor to assist in the cleaning of the
clubhouse. Otherwise, the City shall keep the Demised Premises,
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including without limitation the clubhouse and the weight training
facility, parking lot, playing fields, practice fields, bleacher seats,
and fences and all other buildings, structures and improvements
thereon erected in good order and condition and shall perform all
necessary maintenance, repair and restoration thereof, ordinary and
extraordinary, structural and non-structural, excepting only as
provided in the third from last sentence of this Section 9. 1, and in
compliance with all applicable Legal Requirements and in first
class condition and up to first class MLB spring training facilities
standards at the time of reference, provided however, that (subject
to Sections 14 and 15 hereof) this obligation shall not operate to
require the City to substantially reconstruct the Demised Premises
during the Term hereof. Specifically, but without limiting the
generality of the preceding sentence, the City shall continuously
maintain the four playing fields and the practice field in a
condition suitable for playing Major League baseball and in that
connection shall provide at least three employees to perform
playing field maintenance during periods of use by The Phillies.
The Phillies shall: (a) provide one groundskeeper, at its expense;
and (b) bear the cost of any repair or restoration to the extent that it
may be caused by the fault or negligence of The Phillies, its
players, agents, employees or invitees (ordinary wear and tear
excepted) but only if and only to the extent that the cost thereof
may exceed related insurance proceeds. Additionally, The Phillies
shall from and after September 30, 2009: (i) perform on the City's
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equipment the field grass cutting to the extent it cannot be
performed by three City employees; (ii) all clay grooming for all
Phillies events (raking, packing mounds, batters boxes, etc); (iii)
all maintenance of all batting tunnel clay mounds; and (iv) all
maintenance of bullpen clay for all Phillies events. In the
performance of their respective obligations under this Section 9. 1,
the City and The Phillies shall comply with all applicable health
and safety code requirements. This section 9.1 shall not be
construed to require the City to reconstruct new facilities.
10. All other terms and conditions of the Agreement shall remain in full force
and effect.
IN WITNESS WHEREOF, the Parties have executed this Amendment the day
and year first above written.
Countersigned:
CITY OF CLEARWATER, FLORIDA
Y: A
A2?y -
Frank V. Hibbard William B. Horne, II
Mayor City Manager
Approved as to form:
aura Lipows i Mahony
Assistant City Attorney
PHILLIES FLORIDA LLC
By: The Phillies, its sole member
By:
Attest:
r ?.
Cy eiE
Goud
eau
Cit David P. Montgomery()
General Partner, President
& CEO
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XHIRIT A
DEMISED PREMISES AND DRAINAGE EASEMENT
CARPENTER FIELD
That portion of the NE 1/4 of the SE 1/4 of Section 7,
Township 29 South, Range 16 East, being more and
particularly described as follows, to wit: Commence at
the Southwest corner of the aforesaid NE 1/4 of the SE
1/4 of Section 7, Township 29 South, Range 16 East and
run S 89° 47' 43" E, 239.10 feet for a POINT OF
BEGINNING; thence continue S 89° 47' 43" E, 999.04
feet to an intersection with the western right of way line
of U.S. 19; thence along this last described right of way
line N 0° 54' 44" E, 496.84 feet; thence N. 89° 05' 16" W,
30.00 feet; thence N 0° 54' 44" E, 750.00 feet; thence
S 89° 05' 16" E, 10.00 feet; thence N 0° 54' 44" E, 102.88
feet to the East and West centerline of the aforesaid
section; thence run N 89° 59' 16" W, 841.03 feet; thence
S 27° 45' 31" W, 314.80 feet, to an intersection with the
eastern right of way line of the Florida Power Corp. right
of way; thence S 0° 41' 29" W, 1067.97 feet along the
aforesaid eastern right of way line to the P:O.B. and
containing 29.98 acres, more or less;
SUBJECT TO THE FOLLOWING DESCRIBED DRAINAGE EASEMENTS:
The North 50 feet; the East 50 feet of the south 750 feet
of the North 852.88 feet, and the East 60 feet of the
North 102.88 feet of the above described property;
ALSO,
Commence at the Southwest corner of the Northeast 1/4
of the Southeast 1/4 of said Section; thence along the
South line of said Northeast 1/4 of the Southeast 1/4, S.
89° 47' 45" E., 1237.47 feet to the West right-of-way line
of U. S. Highway 19; thence along said line, N. 00° 541.44"
E., 496.84 feet; thence N. 89" 05' 16" W., 30.00 feet;
thence N. 00° 54' 44" E., 644.24 feet; thence leaving said
West right-of-way line, N. 89° 05' 16" W., 50.00 feet to
the POINT OF BEGINNING; thence N. 44° 02' 35" W.,
219.39 feet; thence along a line 50.00 feet South of and
parallel with the North line of the Southeast 1/4 of said
Section, S. 89" 59' 16" E., 155.03 feet; thence leaving said
line, S. 00" 54' 44" W., 157.69 feet to the POINT OF
BEGINNING; containing 0.28 acres more or less;
ALSO,
Commence at the Southwest corner of the Northeast 1/4
of the Southeast 1/4 of said Sect-ion; thence along the
South line of said Northeast 1/4 of the Southeast 1/4, S.
89° 47' 45" E., 1063.67 feet to the POINT OF BEGINNING';
thence leaving said line, R. 11° 39' 19" E.; 508.18 feet;
thence S. 89° 05' 16" E., 79.06 feet to the West right-of-
way line of U. S. Highway 19; thence along said right-of-
way line, being 100 feet West of and parallel with the
East line of the Southeast 1/4 of said Section, S. 00° 54'
44" W., 496.84 feet to the South line of the Northeast 1/4
of the Southeast 1/4; thence along said South line, N. 89°
47' 45" W., 173.79 feet to the POINT OF BEGINNING;
containing 1.44 acres more or less.