Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Florida Panthers Holdings, Inc Form S-1 85 475K
2: EX-3.1 Amended and Restated Articles of Incorporation 4 13K
3: EX-3.2 By-Laws of the Company 26 71K
4: EX-5.1 Form of Opinion of Akerman Senterfitt 2± 8K
5: EX-10.1 Broward Co. Civic Arena License Agreement 64 266K
11: EX-10.11 Arena Management Agreement 43 108K
6: EX-10.2 Broward Co. Civic Arena Operating Agreement 63 265K
7: EX-10.3 Amendment to Operating and License Agreement 2 13K
8: EX-10.4 Broward Co. Civic Arena Development Agreement 78 284K
9: EX-10.7 Miami Arena Contract 203 577K
10: EX-10.8 First Amendment to Miami Arena Contract 57 158K
12: EX-21.1 Subsidiaries of the Company 1 6K
13: EX-23.1 Consent of Arthur Andersen LLP 1 6K
14: EX-27.1 Financial Data Schedule 1 9K
EX-10.4 — Broward Co. Civic Arena Development Agreement
Exhibit Table of Contents
Exhibit 10.4
BROWARD COUNTY
CIVIC ARENA
DEVELOPMENT AGREEMENT
DATED AS OF JUNE 4, 1996
BY AND BETWEEN
BROWARD COUNTY, FLORIDA
THE COUNTY
AND
ARENA DEVELOPMENT COMPANY, LTD.
THE PROJECT DEVELOPER
TABLE OF CONTENTS
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PAGE
ARTICLE I - DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE II - THE COUNTY'S RESPONSIBILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.1 Acquisition of the Land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.2 Remediation of the Land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.3 Funding the Project . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.4 Traffic Mitigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.5 Pre-Development Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.6 Acquisition of Construction Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.7 Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.8 Additional Obligations of the County . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE III - THE PROJECT DEVELOPER'S RESPONSIBILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.1 Design and Construction Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.2 Services to be Performed by the Project Developer . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE IV - DESIGN OF THE PROJECT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.1 Design Consultants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.2 Development of Design Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.3 Design Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4.4 The County's Consultant's Review and Approval . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4.5 Use of Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE V - CONSTRUCTION OF THE PROJECT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5.1 Duties of the Project Developer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5.2 Cost Savings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
5.3 Financial Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
5.4 Supervision of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
5.5 Correction of Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5.6 Construction Change Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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5.7 Payment and Performance Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.8 Payment for Project Improvements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE VI - DISBURSEMENTS FROM THE CONSTRUCTION FUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.2 Modifications to the Land Acquisition and Project Development Budget . . . . . . . . . . . . . . . 27
6.3 Draw Requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
6.4 Developer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
6.5 Satisfaction of Interim and Full LOC Tests . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE VII - COMPLETION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.1 Completion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE VIII - CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
8.1 Conditions Precedent for the Benefit of the Project Developer . . . . . . . . . . . . . . . . . . 28
ARTICLE IX - DEFAULTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
9.1 Project Developer Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
9.2 County Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
9.3 Termination Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE X - INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.1 Indemnification by Project Developer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.2 Indemnification by County . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
10.3 Indemnification Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
10.4 Limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE XI - REPRESENTATIVES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
11.1 Representatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE XII - SCHEDULES AND REPORTS; INSPECTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
12.1 Design and Construction Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
12.2 Progress Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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12.3 Significant Event Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
12.4 Inspection Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
12.5 Final Construction Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
12.6 Returns Required by Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
12.7 Inspection Rights of the County . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE XIII - REPRESENTATIONS, WARRANTIES AND COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
13.1 Project Developer's Representations, Warranties and Covenants . . . . . . . . . . . . . . . . . . 37
13.2 County's Representations, Warranties and Covenants . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE XIV - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
14.1 Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
14.2 Amendment; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
14.3 Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
14.4 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
14.5 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
14.6 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
14.7 Relationship of Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
14.8 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
14.9 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
14.10 Cross References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
14.11 Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
14.12 Antidiscrimination Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
14.13 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
14.14 Third-Party Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
14.15 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
14.16 Date of this Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
14.17 Gender and Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
14.18 Prior Agreements Superseded . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
14.19 This Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
14.20 Non-Exclusive Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
14.21 Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
14.22 Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
14.23 Saturday, Sunday or Holiday . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
14.24 Approvals by County and the Team . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
14.25 Lawsuits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
14.26 Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
14.27 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
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EXHIBITS
A - Legal Description of the Land
B - Program Requirements
C - Plan of Finance
D - Land Acquisition and Project Development Budget
E - Substantial Completion Guaranty Agreement
F - SBDE Plan
G - Permits Which May Be Required
H - Insurance Requirements
I - Developer's Certificate
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DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (this "Agreement") is dated as of June 4,
1996, and entered into by and between Broward County, Florida, a public body
corporate and politic and a political subdivision of the State of Florida (the
"County"), and Arena Development Company, Ltd., a Florida limited partnership
(the "Project Developer").
RECITALS:
A. On April 2, 1996, the County and Florida Panthers Hockey Club,
Ltd. (the "Team"), entered into a letter of intent (the "LOI") setting forth
the outline of terms and conditions under which the County and the Team would
move forward to expeditiously develop the Broward County Civic Center, which
will be a state-of-the-art, 21,500 seat, multi-purpose sports and entertainment
facility, including up to a maximum of 7,500 surface parking spaces (together
with all related machinery, equipment, fixtures, additions and appurtenances
(which may include a separate practice facility), the "Facility"), to be located
in the City of Sunrise (the "City").
B. The Facility will be developed by the Project Developer on
approximately 123.043 acres of land located in the City (the "Project Site";
together with the Facility, the "Project"). The Project Site and the
approximately 12 acres of land adjacent to the Project Site (the "Private
Development Site"; together with the Project Site, the "Land") shall be
assembled by the County and made available to the Project Developer.
C. The Facility shall be designed and constructed to support the
primary occupancy of the Team for NHL hockey and related uses and to host
professional basketball and other sporting, entertainment, family, music and
related community events.
D. The Project will be financed and owned by the County and
exclusively managed and operated by the Operator pursuant to an operating
agreement (the "Operating Agreement") of even date herewith between the County
and Arena Operating Company, Ltd. (the "Operator").
E. On the date hereof, the Team is entering into a License
Agreement (the "Team License") with the County and the Operator setting forth
the terms and conditions under which the Team will exclusively occupy and use
the Facility for pre-season, regular season and play-off NHL hockey and related
uses as set forth in the Team License.
F. The Project Developer will cause the Project to be designed
and constructed pursuant to the terms of this Agreement.
G. The County has determined that it is in the best interest of
the County to grant to the Project Developer the right to cause the Project to
be designed and constructed pursuant to the terms and conditions stated herein.
H. The parties acknowledge that their respective obligations
hereunder to perform pursuant to this Agreement are absolute and unconditional,
except where specifically provided to the contrary herein.
I. The health, safety and general welfare of the people of the
County are directly dependent upon the continual encouragement, development,
growth and expansion of business, commerce and tourism. The development of a
major multipurpose sports and entertainment complex and accessory uses is most
appropriate in the County which, because of its size, is capable of retaining
and supporting professional as well as amateur sports teams and attracting
major national sporting and musical, cultural, family and community events.
Attraction of business and tourism to the County as a result of the development
of such a facility and its accessory uses will be an important factor in the
continued encouragement, promotion, attraction, stimulation, development,
growth and expansion of business, commerce and tourism within the County. The
development and promotion of a multipurpose sports and entertainment complex on
public property will provide significant benefits to the general public.
J. In view of the foregoing, the County has determined that the
construction of the Project, pursuant to the terms of this Agreement, the
delegation of rights to operate the Facility under the Operating Agreement and
the licensing of same under the Team License are in the best interests of the
County and the welfare of its residents, and in accord with valid public
purposes.
NOW, THEREFORE, in consideration of the premises, covenants,
agreements and obligations contained herein, the parties do hereby agree as
follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. As used in this Agreement, the following terms
shall have the meanings indicated unless a different meaning is specifically
provided or unless the context otherwise requires; certain other capitalized
terms which are not defined herein shall have the meanings provided in the Team
License or the Operating Agreement (as such terms are hereinafter defined):
"Action" means any demand, assertion, claim, action or proceeding,
judicial or otherwise.
"Applicable Law" means any law, statute, ordinance, rule, regulation,
order or determination of any Governmental Authority or any board of fire
underwriters (or other body exercising similar functions), or any recorded
restrictive covenant or deed restriction affecting the Project, the Project
Land or the Project Improvements, all as in effect as of the date of this
Agreement, including, without limitation, all applicable zoning ordinances and
building codes, flood disaster laws, health laws and environmental laws and
regulations.
2
"Business Day" means any day other than a Saturday, a Sunday or a
public or bank holiday or the equivalent for banks generally under the laws of
the State of Florida. Use of the word "day", as opposed to Business Day, means
calendar day.
"City" shall have the meaning set forth in Recital A hereof.
"Construction Documents" shall have the meaning set forth in Section
4.2(d) hereof.
"Construction Fund" means the Construction Fund under the Trust
Agreement, as provided for in Section 2.3(d) hereof.
"Contract" means one or more construction contracts entered into by
the Project Developer relating to the construction of the Project Improvements.
"Contractors" mean the contractors selected and engaged by the Project
Developer to construct the Project Improvements.
"County" means Broward County, Florida, its agencies, departments and
authorities, and the respective successors to any of the foregoing.
"County Bonds" means the Professional Sports Facility Tax and Revenue
Bonds, Series 1996, to be issued by the County.
"County Default" shall have the meaning set forth in Section 9.2
hereof.
"County-Furnished Materials" shall have the meaning set forth in
Section 2.6(a) hereof.
"County Project Funding" means the funding of the Project by the
County, as provided for in Section 2.3(a) hereof.
"County's Consultant" shall have the meaning set forth in Section11.1
hereof.
"County's Representative" shall have the meaning set forth in Section
11.1 hereof.
"Design Architect" means the firm(s) selected or to be selected by the
Project Developer for the design of the Project.
"Design Development Documents" shall have the meaning set forth in
Section 4.2(c) hereof.
"Facility" shall have the meaning set forth in Recital A hereof.
"Force Majeure" means acts of God (other than adverse, but non-severe,
weather conditions to the extent normally encountered in the Sunrise, Florida
area and the impacts thereof), strikes, lock-outs, acts of the public enemy,
the enactment, imposition or modification of any Applicable Law
3
which occurs after the date of this Agreement and which prohibits or materially
interferes with the development or construction of the Project Improvements;
confiscation or seizure by any government or public authority, wars or war-
like action (whether actual and pending or expected, and whether de jure or de
facto), arrests or other restraints of government (civil or military, but
excluding restraints on the development or construction of the Project
Improvements occurring as a result of any violations, by the party claiming the
right to delay performance, of Applicable Law or the terms and provisions of
this Agreement), blockades, insurrections, riots, civil disturbances,
governmental restrictions, epidemics, landslides, lightning, earthquakes,
fires, hurricanes, storms, floods, wash-outs, explosions, breakage or accident
to major equipment or machinery critical to the development of the Project
and/or construction of the Project Improvements, nuclear reaction or radiation,
radioactive contamination, acts, or the failure to act, of any Governmental
Authority or any other causes, whether of the kind herein enumerated or
otherwise, which are not reasonably within the control of the party claiming
the right to delay performance on account of such occurrence and which, in any
event, are not a result of the negligence of the party claiming the right to
delay performance on account of such occurrence; provided, however, that Force
Majeure shall not include acts, events or other matters arising out of
violations of any environmental laws with respect to or the presence or
discharge of any hazardous substances on the Land (exclusive of any violation
caused by or attributable to the County or for the remediation of which the
County is responsible).
"GAAP" means generally accepted accounting principles in effect in the
United States of America from time to time.
"General Contractor" means _______________ or such other general
contractor(s) or construction manager(s) as may be selected by the Project
Developer with respect to the construction of the Project Improvements.
"Governmental Authority(ies)" means any federal, state and/or local
agency, department, commission, board, bureau, administrative or regulatory
body or other instrumentality having jurisdiction over the Project or the
Project Improvements.
"Land" shall have the meaning set forth in Recital B hereof.
"Land Acquisition and Project Development Budget" means the sum of all
costs (including, but not limited to, costs for Land acquisition,
pre-development, architecture and engineering, site-related work, construction,
Project Developer's General Requirements, Project consulting fees, furniture,
fixtures and equipment, pre-opening expenses and contingency fund) actually
incurred and estimated to be incurred to acquire the Land and to complete the
design and construction of the Project, as determined by the Project Developer
and as in effect from time to time (see Section 3.2(a)). As of the date hereof,
the Land Acquisition and Project Development Budget is One Hundred Seventy-Five
Million Seven Hundred Thousand ($175,700,000) Dollars, as set forth in Exhibit D
hereto.
"LOI" shall have the meaning set forth in Recital A hereof.
4
"NHL" means the National Hockey League and any successor or substitute
association or other entity of which the Team is a member or joint owner and
which engages in professional hockey competition in a manner comparable to the
NHL.
"Operating Agreement" shall have the meaning set forth in Recital D
hereof.
"Operator" shall have the meaning set forth in Recital D hereof.
"Permits" means all permits, consents, approvals, authorizations,
variances, waivers, liens, certificates and approvals from all Governmental
Authorities, quasi-Governmental Authorities, utility companies and insurance
rating agencies which are required for the planning, design, construction,
completion, use and occupancy of the Project and the Project Improvements.
"Permitted Exceptions" shall mean the permitted exceptions to the
County's fee simple interest in the Land, as approved by the Project Developer
pursuant to Section 8.1(a).
"Person" means an individual, partnership, corporation, joint stock
company, trust (including a business trust), unincorporated association, joint
venture or any other entity, the United States, or a federal, state or
political subdivision thereof or any agency or court of such state or
subdivision.
"Private Development Site" shall have the meaning set forth in Recital
B hereof.
"Program Requirements" means the program for the design, construction
and equipping of the Project as set forth Exhibit B attached hereto, as the
same may be amended or supplemented from time to time.
"Project Architects" means, collectively, the Design Architect and the
Site Architect, and "Project Architect" means either the Design Architect or
the Site Architect, as the context may require.
"Project Developer" shall have the meaning set forth in the initial
paragraph hereof.
"Project Developer Default" shall have the meaning set forth in Section
9.1 hereof.
"Project Developer Project Funding" means the funding of the Project
by the Project Developer, as provided for in Section 2.3(e) hereof.
"Project Developer's General Requirements" means all permit and
application fees, Project management and administrative costs, bonds and
insurance, inspection fees, financial and legal consulting fees, and other
"soft" costs associated with building the Project which, in the Project
Developer's opinion, are necessary or desirable in order to execute the Work,
as set forth in the Land Acquisition and Project Development Budget.
"Project Executive" shall have the meaning set forth in Section 11.1
hereof.
5
"Project Improvements" shall have the meaning set forth in Section 3.1
hereof.
"Project Manager" shall have the meaning set forth in Section 11.1
hereof.
"Project Site" shall have the meaning set forth in Recital B hereof.
"Schedule" shall have the meaning set forth in Section 12.1 hereof.
"Scheduled Completion Date" means October 1, 1998, or such later date
as may be determined by the Team.
"Schematic Design Documents" shall have the meaning set forth in
Section 4.2(b) hereof.
"Site Architect" means the firm(s) selected or to be selected by the
Project Developer for the site planning of the Project Site.
"Substantial Completion" or "Substantially Completed" means the
completion of Project Improvements to the extent that (a) the Operator and the
Team, as applicable, are legally entitled (exclusive of any impediments not
related to the Project Developer's obligations under this Agreement), to
occupy, operate and use the Project and any necessary appurtenances in
accordance with the Operating Agreement and the Team License, and the Project
Developer, the Operator and the Team, as is appropriate, have been delivered,
and there shall be in effect, the Team License and all Permits necessary for
the use, operation and occupancy of the Project, and (b) the Project Architects
deliver their certificates to the Project Developer and the County stating that
the Work has been substantially completed subject only to "punch list" type
items which (i) in no way materially interfere with the use, operation and
occupancy of, or the anticipated revenues from, the Project, and (ii) may be
completed within thirty (30) calendar days of the date of such certificates or
such longer reasonable period of time which shall be permitted by Applicable
Law or Governmental Authorities so as to preserve the Operator and the Team's
right to use, operate and occupy the Project.
"Supplemental County Project Funding" shall have the meaning set forth
in Section 2.3(f) hereof.
"Sunrise Agreement" shall have the meaning set forth in Section 2.2
hereof.
"Team" means the Florida Panthers Hockey Club, Ltd., a Florida
limited partnership, its successors and assigns, who own the NHL Franchise
rights for the Florida Panthers.
"Team License" shall have the meaning set forth in Recital E hereof.
"Trust Agreement" means the Trust Agreement referred to in Section
2.3(b) hereof.
"Trustee" means the Trustee under the Trust Agreement.
6
"Work" means the Project, the Project Improvements and the Program
Requirements pertaining to the Project Improvements as reflected in the
Construction Documents, as the same shall be amended from time to time as
provided herein, and to be reflected in the Project Developer's final as-built
drawings.
1.2 Accounting Terms. Any accounting term used in this Agreement
shall have, unless otherwise specifically provided herein, the meaning
customarily given in accordance with GAAP, and all financial computations
hereunder shall be computed, unless otherwise specifically provided herein, in
accordance with GAAP, as consistently applied.
ARTICLE II
THE COUNTY'S RESPONSIBILITIES
2.1 Acquisition of the Land.
(a) The County represents and warrants to and covenants with the
Project Developer that (i) the County is prepared to execute a binding
agreement (the "Land Acquisition Agreement"), subject to the Project
Developer's approval, providing for the County to acquire fee simple title to
the Land at a price not in excess of the price provided in the Sunrise
Agreement; (ii) the County has provided to the Project Developer a true and
complete copy of the final form of the Land Acquisition Agreement; (iii) upon
the execution thereof, the County will provide the Project Developer with a
true and complete copy of the Land Acquisition Agreement, as executed by all
parties thereto, which shall be in the final form thereof referred to in the
previous clause (ii); (iv) the County will comply with its obligations, and
enforce the obligations of the other parties, under the Land Acquisition
Agreement; (v) the Land Acquisition Agreement will not be amended without the
prior written consent of the Project Developer; and (vi) on or before October
1, 1996, the County will take title to and beneficial ownership of the Land and
such title shall be free and clear of all liens, claims, encumbrances,
restrictions and other matters of title other than the Permitted Exceptions.
Upon its taking title to and beneficial ownership of the Land, the County shall
make the Project Site (and for staging areas and the like, during the
construction period, the balance of the Land) fully available to the Developer
for the purposes contemplated by this Agreement. Exhibit A hereto is a legal
description of the Land. Legal descriptions of the Project Site and the
Private Development Site will be set forth in an amendment to this Agreement
which the parties shall execute at such time as the site planning of the
Project Site shall have been completed.
(b) Sufficient acreage will be set aside within the Project Site
for the purposes set forth in this Agreement, including up to a maximum of
7,500 parking spaces. The actual location of the Facility and related exterior
improvements (such as marshaling and loading areas) will be specified in the
Schematic Design Documents.
(c) The Project Developer shall have the exclusive right to
develop the Private Development Site for any use approved by any governmental
agency having jurisdiction. The County
7
and the Project Developer's rights and obligations with respect to the use and
development of the Private Development Site by the Project Developer will be
set forth in an agreement to be negotiated in good faith by the County and the
Project Developer. The Private Development Site is not included in the
Facility. The County will assist and cooperate with the Project Developer in
obtaining maximum development rights for the Private Development Site. The
cost of permitting and developing the Private Development Site, if any, will
not be paid for by the County.
2.2 Remediation of the Land. The County shall cause the Land to
be free of all Hazardous Materials (as defined in that certain Letter of
Agreement dated April 13, 1996, among the Team, the County and the City (the
"Sunrise Agreement")) and shall diligently enforce all its rights against the
City with respect to Hazardous Materials and otherwise, as set forth in the
Sunrise Agreement. The County's obligations to cause the Land to be free of
all Hazardous Materials shall not be affected by any failure to enforce, or any
unsuccessful attempt to enforce, such rights against the City. Costs incurred
by the County to fulfill its obligations under this Section 2.2. shall be paid
from the Contingent County Project Funding and are not included in the Land
Acquisition and Project Development Budget. As used herein, "free of all
Hazardous Materials" means the removal, clean-up, treatment, isolation or
encapsulation of all such Hazardous Materials in accordance with all Applicable
Laws.
2.3 Funding the Project.
(a) The County will fund or cause to be funded the costs
of acquiring the Land and designing, developing and constructing the Project
and the Project Improvements in an amount not to exceed $175,700,000 (the
"Fixed County Project Funding"), as set forth in the Land Acquisition and
Project Development Budget and the applicable provisions of this Agreement. In
addition, the County will fund known and unknown and unforeseen geo-technical
and environmental contamination costs (the "Contingent County Project Funding";
together with the Fixed County Project Funding, the "County Project Funding")
and, if applicable, the Supplemental County Project Funding. The County's
obligations with respect to the Contingent County Project Funding shall not
include the funding of costs encountered as a result of unknown or concealed
site conditions which are of a usual nature and do not differ materially from
those ordinarily encountered and generally recognized as inherent in
construction activities of the character contemplated hereby.
(b) In order to provide the Fixed County Project Funding,
the County agrees to issue the County Bonds, in one or more series, the face
amount of which in the aggregate shall not exceed $185,000,000. The County
Bonds will be secured by the tourist development taxes referred to in Section
13.2.7, the state sales tax rebates referred to in Section 13.2.8, the County
Preferred Revenue Allocation (as defined in the Operating Agreement) and the
covenant of the County to budget and appropriate from other legally available
funds, as provided in a Trust Agreement (the "Trust Agreement") and in such
additional manner as is determined by the County in consultation with the
Project Developer and the Team. The County will issue the County Bonds no
later than September 15, 1996. The final maturity of the County Bonds will be
not later than six months following the initial License Expiration Date (as
defined in the Team License). The parties hereby
8
agree to the Plan of Finance set forth in Exhibit C hereto. The provisions of
such Plan of Finance shall survive the termination of this Agreement.
(c) If the County does not otherwise pay or reimburse all
amounts incurred in respect of the Contingent County Project Funding, the
County covenants to budget and appropriate funds sufficient to fund all such
amounts.
(d) The County will deposit the Fixed County Project
Funding and all amounts required to fund the Contingent County Project Funding
in the Construction Fund established in the Trust Agreement (the "Construction
Fund"), and the Trustee will disburse all such funds from the Construction Fund
in accordance with the provisions of the Trust Agreement and Article VI hereof.
(e) Subject to the provisions of this Agreement, the
Project Developer will fund all costs of acquiring the Land and developing the
Project in excess of the County Project Funding ("Project Developer Project
Funding"). The Team will guaranty the obligations of the Project Developer in
respect of the Project Developer Project Funding pursuant to the Substantial
Completion Guaranty Agreement in the form of Exhibit E hereto.
(f) At the option of the Project Developer, in the event
the actual costs incurred to acquire the Land and permit, design, construct and
equip the Project and the Project Improvements shall exceed $175,700,000 (plus
the amount of the Contingent County Project Funding), the County shall issue
additional taxable bonds in such original face amount as will provide proceeds
equal to such excess costs up to a maximum face amount equal to 10% of the face
amount of the County Bonds. Such proceeds (the "Supplemental County Project
Funding") shall be deposited in the Construction Fund (or in a fund equivalent
thereto, if a separate trust agreement is used with respect to such additional
taxable bonds) to be used for the payment of such additional costs in
accordance with the provisions of this Agreement. The County's obligation to
issue such additional debt is conditioned upon the Team's obligation to pay
supplemental rent, in accordance with Section 3.6 of the Team License, equal to
the debt service on such additional debt over the License Term remaining at the
time of issuance of such additional debt.
2.4 Traffic Mitigation. The County hereby agrees to use its best
efforts, in conjunction with the State of Florida Department of Transportation
and the City, to mitigate any traffic related issues, so that ingress and
egress projections by the County's traffic engineers and other transportation
consultants are not in excess of the capacity of the roadways and other
transportation modes leading to and from the Project Site. For purposes
hereof, such "best efforts" means, without limitation, that the County shall
(i) contract for or cause to be contracted for a professional traffic
engineering study to assess traffic impacts of the Facility and recommend
roadway improvements for mitigation and (ii) pursue implementation by the City,
the County or the State of Florida Department of Transportation of the
recommended improvements from appropriate funding sources other than general
revenues of the County.
2.5 Pre-Development Costs. Prior to the issuance of the County
Bonds, the County and the Project Developer will incur obligations for
pre-development costs as set forth in the Land
9
Acquisition and Project Development Budget. Amounts so advanced to pay such
obligations will be reimbursed from Project funds to the party advancing them.
2.6 Acquisition of Construction Materials.
(a) The County reserves the right to require Project
Developer to assign some or all of its agreements with material suppliers
directly to the County. Any materials purchased by the County pursuant to such
an assignment of a material supply agreement shall be referred to as
"County-Furnished Materials" and the responsibilities of both the County and
the Project Developer relating to such County-Furnished Materials shall be
governed by the terms and conditions of this Section 2.6, which shall take
precedence over other conditions and terms of this Agreement where
inconsistencies or conflicts exist.
(b) From time to time, the Project Developer shall
provide, or cause the General Contractor to provide, the County a list of all
intended suppliers, vendors, and materialmen for consideration as suppliers of
County-Purchased Materials, a description of the materials to be supplied,
estimated quantities and price quotes from the vendors.
(c) Upon request from the County, and in a timely manner,
the Project Developer shall prepare, or cause the General Contractor to
prepare, a purchasing requisition request form ("Purchasing Requisition Request
Form") which shall, in form and detail acceptable to County, specifically
identify the materials which County may, in its discretion, elect to purchase
directly and the vendors and suppliers thereof. The Purchasing Requisition
Request Form shall include: (i) the name, address, telephone number and
contact person for the material supplier; (ii) manufacturer or brand, model or
specification number of the item; (iii) quantity needed as estimated by the
General Contractor; (iv) the price quoted by the supplier for the materials
identified therein; (v) any sales taxes associated with such quote; (vi)
shipping and handling insurance cost; (vii) 100% performance bond cost; (viii)
delivery dates as established by the General Contractor; (ix) any reduction in
the General Contractor's cost for both the payment bond and the performance
bond; and (x) detail concerning bonds or letters of credit provided by the
supplier if included in his proposal.
The Purchasing Requisition Request Form shall include copies
of vendors' quotations, and specifically reference any terms and conditions
which have been negotiated with the vendors concerning letters of credit,
terms, discounts, or special payments.
(d) After receipt of a Purchasing Requisition Request
Form, the County shall prepare a purchase order (a "Purchase Order") for each
item of material which the County chooses to purchase directly. Pursuant to
the Purchase Order, the vendor will provide the required quantities of material
at the price established in the vendor's quote to the General Contractor, less
any sales tax associated with such price. Each Purchase Order shall contain
the County's consumer certificate of exemption number. Promptly upon receipt
of each Purchase Order, the Project Developer shall implement, or cause the
General Contractor to implement, a procedure for the purchase of the items in
accordance with the terms of the Purchase Order and in a manner to assure
timely delivery of such items. The County's Representative shall be the
approving authority for the County on Purchase
10
Orders in conjunction with County-Furnished Materials. The Purchase Order
shall also provide for reimbursement of the cost to the supplier for providing
required shipping and handling insurance and for providing a performance bond
from the supplier to the County for the full value of the Purchase Order,
unless such insurance and bonding requirements were included in the quote
provided by the supplier to the Project Developer. The Purchase Order shall
also require the delivery of the County-Furnished Materials on the delivery
dates provided in the Purchasing Requisition Request Form.
(e) Except as otherwise provided in Section 2.6(d), the
Project Developer shall be fully responsible for all matters relating to the
procurement of materials furnished by the County in accordance with this
Section 2.6, including, but not limited to, assuring the correct quantities,
placing the order in a timely manner, assuring coordination of purchases,
providing and obtaining all warranties and guaranties required by the
Construction Documents and inspection and acceptance of the goods at the time
of delivery. The Project Developer shall coordinate, or cause the General
Contractor to coordinate, delivery schedules, sequence of delivery, loading
orientation, and other arrangements normally required by the General Contractor
for the particular materials furnished. The Project Developer shall cause the
General Contractor to provide all services required for the unloading, handling
and storage of materials through installation.
(f) The Project Developer shall cause the General
Contractor to visually inspect all shipments from the suppliers and approve the
vendor's invoice for material delivered, as County-Furnished Materials are
delivered to the jobsite. The General Contractor shall be required to assure
that each delivery of County-Furnished Materials is accompanied by
documentation adequate to identify the Purchase Order against which the
purchase is made. This documentation may consist of a delivery ticket and an
invoice from the supplier conforming to the Purchase Order together with such
additional information as the County may require. The Project Developer shall
require the General Contractor to then forward the invoice to the County for
payment.
(g) The General Contractor shall be required to determine
that County-Furnished Materials conform to the Construction Documents and
determine prior to incorporation into the Work if such materials are patently
defective, and whether such materials are identical to the materials ordered
and match the description on the bill of lading. If the General Contractor
discovers defects or non-conformities in County-Furnished Materials upon such
visual inspection, such nonconforming or defective materials shall not be used
in the Work, and instead, the Project Developer shall promptly notify the
County of the defective or nonconforming condition so that repair or
replacement of those materials can occur without any undue delay or
interruption to the Project. If the Project Developer fails to require the
General Contractor to perform such inspection, or the General Contractor
otherwise incorporates into the Work such defective or nonconforming
County-Furnished Materials, the condition of which it either knew or should
have known by performance of an inspection, the County shall not be responsible
for damages to the Project Developer resulting from the General Contractor's
incorporation of such materials into the Project.
(h) The General Contractor shall be required to maintain
records of all County-Furnished Materials it incorporates into the Work from
the stock of County-Furnished Materials in its possession. The General
Contractor shall account monthly to the County for any County-
11
Furnished Materials delivered into the General Contractor's possession,
indicating portions of all such materials which have been incorporated into the
Work.
(i) The General Contractor shall be responsible for
obtaining and managing all warranties and guaranties for all materials and
products as required by the Construction Documents. All repair, maintenance or
damage-repair calls shall be forwarded to the General Contractor for
resolution with the appropriate supplier, vendor, or subcontractor.
(j) Notwithstanding the transfer of County-Furnished
Materials by the County to the General Contractor's possession, the County
shall retain legal and equitable title to any and all County-Furnished
Materials.
(k) The transfer of possession of County-Furnished
Materials from the County to the General Contractor shall constitute a bailment
for the mutual benefit of the County and the General Contractor. The County
shall be considered the bailor and the General Contractor the bailee of the
County-Furnished Materials. County-Furnished Materials shall be considered
returned to the County for purposes of their bailment at such time as they are
incorporated into the Project or consumed in the process of completing the
Project.
(l) The County shall purchase and maintain insurance
sufficient to protect against any loss of or damage to County-Furnished
Materials. Such insurance shall cover the replacement cost of any
County-Furnished Materials not yet incorporated into the Project during the
period between the time the County first takes title to any of such
County-Furnished Materials and the time when the last of such County-Furnished
Materials is incorporated into the Project or consumed in the process of
completing the Project.
(m) The County shall in no way be liable for any
interruption or delay in the Project, for any defects or other problems with
the Project, or for any extra costs resulting from any delay in the delivery
of, or defects in, County-Furnished Materials, except in the event of the
County's gross negligence or willful misconduct.
(n) On a monthly basis, the General Contractor shall be
required to review invoices submitted by all suppliers of County-Furnished
Materials delivered to the Project Site during that month and either concur or
object to the County's issuance of payment to the suppliers, based upon the
General Contractor's records of materials delivered to the Project Site and any
defects detected in such materials.
(o) In order to arrange for the prompt payment to the
supplier, the Project Developer shall cause the General Contractor to provide
to the County a requisition for payment within 15 days from receipt and
acceptance of the goods or materials. The requisition shall include a copy of
the applicable Purchase Order, invoices, delivery tickets, written acceptance
of the delivered items, and such other documentation as may be reasonably
required by the County. Upon receipt of the appropriate documentation, the
County shall cause the Trustee, as part of the periodic draw process to be set
forth in the Trust Agreement, to prepare a check drawn from the Construction
Fund
12
to the supplier based upon the requisition data provided. This check will be
released, delivered and remitted directly to the supplier.
2.7 Permits. (a) The parties contemplate that the permits listed
in Exhibit G hereto may be required from Governmental Authorities and
quasi-Governmental Authorities in connection with the design, planning,
construction, completion, use and occupancy of the Project and the Project
Improvements.
(b) The County, as owner, shall act as applicant or
co-applicant, and shall diligently facilitate and expedite all actions
necessary in order to obtain the permits listed in Part One of Exhibit G so as
to permit the undelayed commencement of construction of the Project and
occupancy by the Team. In support of such applications, the Project Developer
shall timely engage appropriate consultants mutually approved by the County and
the Project Developer and timely shall furnish information required by the
County, and otherwise timely cooperate with, the County in connection with
obtaining such permits. The County shall submit its information requirements
to the Project Developer, or its consultants, sufficiently in advance so that
the Project Developer, or its consultants, may furnish the information required
for permitting on a timely basis. All applications and other documents to be
submitted by the County in connection with such permits shall be subject to the
Project Developer's approval, which shall not be unreasonably withheld and
shall be provided within three (3) Business Days after the County submits the
completed application and other documents, as applicable, to the Project
Developer. Failure by the Project Developer to disapprove, within such time
period, any item submitted for approval shall be deemed to be approval thereof.
The County shall furnish copies (or originals if required by Applicable Laws)
of all such permits to the Project Developer. The County shall keep the
Project Developer fully apprised of the status of processing such permits.
(c) The Project Developer shall diligently pursue,
facilitate and expedite all actions necessary in order to obtain the permits
listed in Part Two of Exhibit G and all other permits, provided that the County
shall furnish information required by the Project Developer, and otherwise
cooperate with, the Project Developer in order for the Project Developer to
obtain all such Permits in the most expeditious fashion. If requested, the
County shall be furnished copies of all such Permits and of all applications
and other documents to be submitted by or on behalf of the Project Developer in
connection with such Permits. The Project Developer shall keep the County
fully apprised of the status of processing such Permits.
2.8 Additional Obligations of the County. The County shall fully
cooperate with the Project Developer in the development of the Project.
Without limiting the County's obligations hereunder, and in addition to its
obligations set forth elsewhere in this Agreement, the County, acting through
the County's Representative or the County's Consultant, as provided in Article
XI hereof, shall:
(a) promptly respond to all requests for approval,
consent, review or comment submitted by or on behalf of the Project Developer;
13
(b) promptly furnish to the Project Developer and the
Team, upon receipt by the County, copies of any and all legal notices received
by the County affecting the Project, including, without limitation, notices
from Governmental Authorities, notices from any party claiming any default in
any financing or payment obligation, and any other notice not of a routine
nature;
(c) promptly notify the Project Developer and the Team of
any suit, proceeding or action that is initiated or threatened in connection
with the Project or against the Project Developer or the County in connection
with the Project;
(d) procure and maintain, with responsible companies
reasonably acceptable to the Project Developer, the insurance coverage set
forth in Part Three of Exhibit H. Such insurance shall name the Project
Developer, the Operator and the Team as additional named insureds as their
interests may appear. Such insurance shall include waivers by the respective
insurance carriers of any and all rights of subrogation against the Project
Developer, the Operator, or the Team, and the County shall promptly provide
the Project Developer with certificates evidencing such insurance; and
(e) provide the Project Developer not less than seven
Business Days' prior written notice of the date of sale of the County Bonds.
ARTICLE III
THE PROJECT DEVELOPER'S RESPONSIBILITIES
3.1 Design and Construction Obligation.
(a) Provided that the County shall have performed its
covenants, and not breached its representations and warranties, set forth in
Article II and Section 13.2 hereof, the Project Developer hereby undertakes and
assumes sole and exclusive responsibility to cause and obtain the permitting,
design and construction of all improvements comprising the Project (the
"Project Improvements") in accordance with the Program Requirements and the
Construction Documents, to cause Substantial Completion of the same to occur on
or before the Scheduled Completion Date, as the same may be extended pursuant
to the provisions of this Agreement, and to equip the Facility in accordance
with the Program Requirements and as contemplated by the Team License.
Provided that the Trustee shall perform its obligations set forth in the Trust
Agreement, all costs, expenses and expenditures in connection with the design
and construction of the Project Improvements, including, without limitation,
the amounts owing to the Design Architect, and/or other architectural,
engineering or other design consultants, and to the General Contractor,
Contractors, or other contractors, subcontractors, suppliers, consultants or
otherwise for supervision, transportation, labor, materials or Permits or other
matters in connection with the Project and the Project Improvements, shall be
paid by the Project Developer from the Construction Fund pursuant to the Land
Acquisition and Project Development Budget.
14
(b) The Project Developer shall manage and direct the
permitting, design and construction of the Work, and shall coordinate the work
of all Persons involved therein. The Project Developer shall meet with the
County's Consultant, the Project Architects, Contractors, General Contractor
and other Persons providing design or construction services on a regular and
frequent basis and as specifically provided herein in order to assure the
performance of the Work in accordance with the terms of this Agreement. To the
extent the Project Developer has, obtains, or retains rights under any Contract
pertaining to the Work, the Project Developer will exercise such rights in
accordance with all approval and consent provisions provided to the County and
the Team in this Agreement. Notwithstanding anything to the contrary set forth
herein, the parties agree that in performing its obligations pursuant to this
Agreement, the Project Developer shall not be acting as a contractor, within
the meaning of Chapter 489, Florida Statutes, and that the Project Developer
shall cause all services to be performed hereunder which, by reason of such
Chapter, must be performed by contractors, as so defined, to be performed by
properly licensed Persons.
3.2 Services to be Performed by the Project Developer. The
Project Developer shall cause the Project and the Project Improvements to be
designed and constructed in an orderly, expeditious and efficient manner in
accordance with the Applicable Laws, the Schedule and the Construction
Documents. Without limiting the Project Developer's obligations hereunder, the
Project Developer shall:
(a) on a monthly basis, prepare and submit to the County,
for informational purposes only, updates to the Land Acquisition and
Project Development Budget, which shall include updated estimates of
the cost of the Project and anticipated dates when funds will be
required to pay the County Project Funding and, if applicable, the
Project Developer Project Funding;
(b) prepare and submit to the County, for informational
purposes only, the Schedule, and thereafter update the Schedule on a
monthly basis;
(c) retain the services of the Project Architects and
consultants and coordinate the design of the Project as more
specifically set forth in Article IV hereof;
(d) direct, coordinate and supervise the preparation of
all submissions necessary in connection with the Permits to be
obtained by the Project Developer and negotiate with and act as
liaison to the Governmental Authorities in connection with obtaining
such Permits. The Project Developer shall obtain and provide to the
appropriate Governmental Authorities all drawings, documents,
information, consents and such other items necessary to secure the
Permits for which the Project Developer is responsible. All
applications and other documents submitted by or on behalf of the
Project Developer in connection with the Permits shall be available
for review by the County and the Team both prior to and after
submission to the Governmental Authorities. The Project Developer
shall keep the County and the Team fully apprised of the status of
processing the Permits;
(e) cause the construction services specified in Article
V hereof to be performed;
15
(f) negotiate, procure and retain the services of the
General Contractor, who shall, among other things, execute the
construction of the Project Improvements, or, in the case of a
construction manager, manage, supervise and direct construction
activities related to the Work;
(g) investigate, hire, contract with, train, pay,
supervise and, when necessary, discharge the personnel reasonably
required to be employed or engaged by the Project Developer in order to
properly perform the Work. Such personnel shall in every instance be
deemed independent contractors, agents or employees, as the case may
be, of the Project Developer and not of the County, and all matters
pertaining to the employment, engagement, supervision, compensation,
promotion and discharge of such independent contractors, agents or
employees shall be the sole responsibility of the Project Developer.
All salaries, wages, commissions and other compensation or expense of
personnel employed by the Project Developer hereunder, including
so-called fringe benefits, medical and health insurance, pension plans,
social security, taxes, workers' compensation insurance and all other
expenses of the Project Developer are and shall be the responsibility
of and paid by the Project Developer from the Construction Fund
pursuant to the Land Acquisition and Project Development Budget. The
Project Developer shall use reasonable efforts to cause all personnel
used by the Project Developer, the Design Architect, the Project Site
Architect, General Contractor and any Contractor in the performance of
the design and/or construction of the Project Improvements to be
qualified by training and experience to perform their assigned tasks;
(h) procure and maintain, and require the General
Contractor, Project Architects, Contractors and other Persons
performing design and construction of the Work to procure and maintain,
with responsible companies reasonably acceptable to the County,
insurance coverage as set forth in Part One of Exhibit H. Such
insurance shall in any event name the Operator, the Team and the County
as additional named insureds, as their interests may appear. Such
insurance shall include waivers by the respective insurance carriers of
any and all rights of subrogation against the Project Developer, the
Operator, the Team, or the County, and the Project Developer shall
promptly provide the County with certificates evidencing such
insurance;
(i) at all times prior to the License Commencement Date
(as defined in the Team License), use its best efforts to investigate
and make a full timely written report to the insurance carriers as to
any accident at the Project, claim for damages relating to the design
and/or construction of the Project, and damage to or destruction of
the Project (and the estimated cost of repair thereof), and prepare
and file any and all reports required by any insurance carriers in
connection therewith;
(j) provided that the Trustee is obligated to make
disbursements for amounts due and payable as costs and expenses of the
Work under the Trust Agreement and that the disbursement procedures
set forth in the Trust Agreement are reasonably acceptable to the
16
Project Developer, cause such disbursements to be made regularly and
punctually by the Trustee pursuant to the requisition procedure
established in the Trust Agreement;
(k) maintain at its regular business office separate,
true and proper books, records, accounts, journals and files regarding
its business transactions and the design and construction of the
Project Improvements, containing Contracts, agreements, all design
documents (including, without limitation, the Construction Documents),
shop drawings, change orders, applications for payment, Permits,
rental agreements and records, insurance policies, correspondence,
receipts, bills and vouchers, and all other documents and papers
pertaining to the Project and/or the design and construction thereof,
all of which shall be available for review by the County (and a copy
of any such items shall be provided to the Team, if requested);
(l) at all times prior to the License Commencement Date
(as defined in the Team License), take such action as may be necessary
to comply with any and all Applicable Laws, to the extent that such
Applicable Laws are susceptible of being complied with by the Project
Developer or Persons under its control;
(m) promptly furnish to the County and the Team, upon
receipt by the Project Developer, copies of any and all legal notices
received by the Project Developer affecting the Project, including,
without limitation, notices from Governmental Authorities and all
notices from any party claiming any default in any financing or
payment obligation, and any other notice not of a routine nature;
(n) promptly notify the County and the Team of any suit,
proceeding or action that is initiated or threatened in connection
with the Project or against the Project Developer or the County in
connection with the Project;
(o) provide from the Construction Fund pursuant to the
Land Acquisition and Project Development Budget field office space,
equipment, furniture and related items at the Project site during
construction sufficient for use by the County's Consultant;
(p) provide from the Construction Fund sufficient
resources for the Operator to execute a pre-opening plan as shall be
approved by the Project Developer, the Operator and the Team;
(q) provide the County and the Team with an original and
one (1) sepia print of as-built drawings substantially reflecting and
depicting the Project Improvements as constructed and indicating the
changes in and deviations from the Construction Documents. The
as-built drawings may be an assembled set prepared by the various
Contractors, provided such have been coordinated, reviewed, organized
and compiled into a single set of as-built drawings by the Design
Architect suitable for use by the County; and
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(r) cooperate with the County in causing specified goals
for construction hiring to be met, as provided in the SBDE Plan
attached hereto as Exhibit F; use good faith efforts to provide that
minority and female Contractors and subcontractors have the maximum
practicable opportunity to compete for contract work in accordance
with the SBDE Plan; and use good faith efforts to hire qualified
workers from within the County.
In lieu of performing such obligations itself, the Project Developer may cause
one or more of them to be performed by another Person.
ARTICLE IV
DESIGN OF THE PROJECT
4.1 Design Consultants. The Project Developer shall select the
Design Architect. The Project Developer shall consult with the County with
respect to such selection, but the Project Developer shall have the sole right
to select the Design Architect. The Project Developer shall negotiate and
execute the contract between the Project Developer and the Design Architect.
The Project Developer shall provide a copy of such contract and all amendments
thereto to the County's Consultant for its review and comment. The Project
Developer shall deliver to the County's Consultant, for informational purposes
only, a copy of all other contracts with consultants.
4.2 Development of Design Documents.
(a) Attached hereto as Exhibit B is a general description of the
contemplated Project Improvements (the "Program Requirements"). The Project
Developer acknowledges that such Program Requirements may not be withdrawn nor
may the scope and/or quality of work set forth therein be reduced without the
approval (i) of the Team and (ii) if such reduction would materially adversely
affect (y) the revenue-generating capacity of the Project Improvements or (z)
the Program Requirements, the County's Consultant. Within the times set forth
in the Schedule referred to in Section 3.2(b) and further described in Article
XIII hereof, the Project Developer shall cause the Project Architects to
prepare and deliver, to the County and to the Team, Schematic Design Documents,
Design Development Documents and Construction Documents as described herein.
(b) The Project Developer shall cause the Project Architects to
timely prepare and deliver to the County's Consultant, for its review and
approval in accordance with Sections 4.2(g) and 4.2(a), to the extent
applicable, and to the Team, for its review and approval, schematic design
documents for the Project Improvements, including, but not limited to, site
plans, floor plans, elevations, sections and outline specifications (the
"Schematic Design Documents") and amendments and supplements to the Program
Requirements. The Schematic Design Documents shall be based on the Program
Requirements.
(c) The Project Developer shall cause the Project Architects to
timely prepare and deliver to the County and the Team, but in no event later
than the date set forth in the Schedule unless
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otherwise agreed to in writing by the Team, for informational purposes only as
to the County and for the review and approval of the Team, development
documents for the Project Improvements, including, but not limited to, site
plans, floor plans, elevations, enlarged floor plans, miscellaneous details and
updated outline specifications (the "Design Development Documents"). The
Design Development Documents shall be based upon the approved Schematic Design
Documents and the Program Requirements.
(d) The Project Developer shall cause the Project Architects to
timely prepare and deliver to the County and the Team, but in no event later
than the date set forth in the Schedule unless otherwise agreed to in writing by
the Team, for informational purposes only as to the County and for the review
and approval of the Team, complete construction documents, including
Construction Documents, drawings and specifications setting forth in detail all
requirements for the construction of the Project (the "Construction Documents").
The Construction Documents shall be based upon the approved Design Development
Documents and, to the extent the Construction Documents include matters which
were not the subject of the approved Design Development Documents, the Program
Requirements.
(e) During the design process, the Project Developer shall
establish, and update as necessary, the Schedule setting forth the dates for
delivery of the various design documents and for the review and approvals
thereof, durations of design phases and dates for required submittals and bid
packages, and of all design meetings with the Project Architects, coordinated
with the requirements of the Schedule, and shall deliver a copy of the Schedule
and updates thereof to the County's Consultant and the Team sufficiently in
advance to afford the County's Consultant and the Team an opportunity to review
the Schedule and to attend and participate in such meetings. The County's
Consultant and the Team shall review the documents prepared by the Project
Architects to the date of each design meeting and confer with the Project
Developer and the Project Architects regarding progress. The Project Developer
shall prepare, or cause the Project Architects to prepare, minutes of each
design meeting reflecting the decisions made, Team approvals given and
objections raised at the meeting, and shall use its best efforts to accomplish
distribution thereof to the County's Consultant, the Team and others in
attendance within seven (7) days after each meeting. Such minutes shall be
reviewed, amended if necessary, and approved at the next design meeting
following the distribution thereof.
(f) No change from a previously approved design concept shall be
permitted unless the Team agrees to the change and, if the County's Consultant's
approval is required pursuant to Section 4.2(a) or Section 4.2(g), the County
agrees to the change.
(g) Notwithstanding anything to the contrary set forth herein, the
Project Developer shall retain control of the Project design process and all
aspects of the design and specifications of the Project other than conceptual
approval by the County's Consultant of the exterior design and finishes of the
Project Improvements. As to matters regarding the exterior design and finishes
of the Project Improvements, the County's Consultant's approval shall not be
unreasonably withheld or delayed.
4.3 Design Standards.
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It is the purpose of this Article IV to cause the Construction
Documents to comply with the requirements of the Program Requirements and to
produce a facility which meets the "Quality Arena Standard" set forth in the
Team License.
4.4 The County's Consultant's Review and Approval. (a) Any
matters which are to be submitted to the County's Consultant for the County's
Consultant's approval or consent shall be submitted to the County's Consultant
under cover of a review request which shall state when the Project Developer
wishes to have the County's Consultant's response. As to "routine matters"
(i.e., any matters described in clause (ii) of the second sentence of Section
4.2(a)), the County's Consultant will respond as soon as possible, but in no
event later than five (5) Business Days after receiving the request and
supporting information. As to matters other than routine matters, the County's
Consultant will respond as soon as possible, but in no event later than ten
(10) days. If information which the County's Consultant reasonably deems
necessary to fully accomplish its review of the matter in question is not
provided to the County's Consultant, the applicable review period shall not
commence until such information has been furnished to and received by the
County's Consultant. During the course of such review, the Project Developer
and the County's Consultant shall proceed in good faith and the Project
Developer shall make available to the County's Consultant such Persons involved
in either the preparation of the subject drawings and documents or the
construction of the Project Improvements described therein as the County's
Consultant shall reasonably request for the purpose of consultation and
explanation of the subject drawings and documents. On or before the expiration
of the review period, the County's Consultant shall prepare and submit to the
Project Developer in writing any comments, suggestions, modifications or
objections it may have to the subject drawings and documents. Except as
otherwise expressly provided in this Agreement, the approval of the County or
the County's Consultant as to any matter requiring the approval of the County
or the County's Consultant pursuant to this Agreement, shall not be
unreasonably withheld, and failure by County or the County's Consultant to
disapprove, within the time period specified herein, any item submitted for
approval shall be deemed to be approval thereof.
(b) All construction documents, plans, specifications,
drawings, models, samples and the like submitted to the County pursuant to this
Agreement are for informational purposes only, except (i) as otherwise
expressly provided herein and (ii) as submitted to the County for regulatory or
permitting purposes.
4.5 Use of Plans. The County shall not use the construction
documents, plans, specifications, drawings, models, samples and the like
produced or developed in connection with the design and construction of the
Project and the Project Improvements for any purpose other than as contemplated
by this Agreement.
ARTICLE V
CONSTRUCTION OF THE PROJECT
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5.1 Duties of the Project Developer. The Project Developer shall
cause the General Contractor diligently to pursue and prosecute to completion,
in accordance with the Schedule and the Construction Documents, the
construction of the Project Improvements and shall, subject to Force Majeure
and adjustments permitted by the terms of this Agreement, cause Substantial
Completion to occur on or before the Scheduled Completion Date. The Project
Developer shall select the General Contractor. The Project Developer shall
consult with the County with respect to such selection, but the Project
Developer shall have the sole right to select the General Contractor. The
Project Developer shall negotiate and execute the contract between the Project
Developer and the General Contractor, which contract may be a guaranteed
maximum price construction contract, which may include appropriate incentives
for early completion and/or budget savings and appropriate penalties for late
delivery and/or budget overruns, or such other form of contract as the Project
Developer deems appropriate (the "Construction Contract"). The Project
Developer shall provide a copy of such contract and all amendments thereto to
the County for informational purposes only. The Project Developer shall or
shall cause the General Contractor to prepare, negotiate and enter into bid
packages or agreements or otherwise retain the services of the Contractors and
such other contractor(s) and/or subcontractor(s) as are necessary or desirable
to perform the Work, as the Project Developer or the General Contractor shall
determine. Upon the execution of such Contracts and agreements, the Project
Developer shall provide copies thereof to the County's Consultant. Except as
otherwise provided herein, amounts owing under Contracts and other such
agreements, including costs, fees and expenses of Contractors and other
contractor(s) and/or subcontractor(s) retained by the Project Developer or the
General Contractor on behalf of the Project Developer in connection with the
construction of the Project, shall be the responsibility of the Project
Developer from the Construction Fund and not of the County. The Project
Developer shall require that the Contractors and others performing the Work
obtain the Permits, bonds and insurance required by this Agreement and the
Contracts to be obtained by them and shall provide the County's Consultants and
the Team with copies of such Permits and bonds and of the certificates
evidencing such insurance coverage.
5.2 Cost Savings. In the event that the final cost of acquiring
the Land and developing the Project as contemplated by this Agreement is less
than $175,700,000, such difference shall be applied in accordance with the Plan
of Finance.
5.3 Financial Information. The Project Developer shall deliver to
the County any and all financial information relating to the costs of the Work
which is reasonably requested by the County.
5.4 Supervision of Construction. The Project Developer shall
cause the General Contractor to supervise and coordinate the construction of
the Project Improvements so that the Project is constructed, equipped,
furnished and completed in a good and workmanlike manner and in accordance with
the terms of this Agreement. Except as otherwise provided in this Agreement,
the Project Developer shall be responsible for the payment from the
Construction Fund of all costs and expenses incurred in connection with the
construction of the Project Improvements. The Project Developer shall enforce
substantial compliance with the terms of the agreements with the Project
Architects, General Contractor, Contractors and other contractors,
subcontractors and/or design professionals and require their performance
substantially in accordance therewith. The Project
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Developer shall administer the contracts for the design and construction of the
Project Improvements and require that work be continuously and diligently
performed in order to achieve Substantial Completion on or before the Scheduled
Completion Date, as the same may be adjusted pursuant to the terms hereof.
Without limiting the foregoing, the Project Developer shall or shall cause the
General Contractor to:
(a) coordinate the Work as it progresses and the
inspections of the Project Improvements by consultants, review
inspection reports, schedule and conduct preconstruction and
construction meetings, implement courses of action when requirements
of Contracts or other agreements for the design or construction of the
Project Improvements are not being fulfilled, and review and revise
estimates of construction costs;
(b) negotiate or prepare bid packages for any portion of
the Work necessary for the award of Contracts and other agreements as
set forth herein, coordinate selections and procedures therefor and
maintain harmonious labor relations;
(c) review all applications for payment and supporting
documentation prepared by Contractors and others performing work or
furnishing materials for the Project Improvements and provide the
Project Developer and the Trustee with evidence of such payments;
(d) negotiate final payments and/or final settlements
with all parties involved in the construction of the Project
Improvements. The Project Developer shall commence, defend and settle
in good faith such legal actions and proceedings concerning the design
and construction of the Project Improvements (other than defense of
the County in legal actions or proceedings in which the County is a
defendant, which defense shall be assumed by the County Attorney) as
are necessary or required in the opinion of the Project Developer and
retain counsel in connection therewith. If any claims or liens are
filed with respect to the Project, take such action as is necessary to
cause the release and removal thereof;
(e) cause any defects in the construction of the Project
Improvements or in the installation or operation of any equipment or
fixtures therein to be corrected during construction and applicable
warranty periods;
(f) hold weekly job meetings with all job-site personnel,
including contractors and subcontractors and the Project Architects,
as appropriate and necessary, during the construction of the Project
to review the progress of development of the Project and completion of
the Project Improvements. The County's Consultant shall be given
notice of and permitted to attend such meetings and any other meeting
involving all or some of such parties. If requested by the Project
Developer, the County's Consultant shall confer with the Project
Developer regarding the need or appropriateness of the County's
Consultant's attendance at a particular meeting; however, the
foregoing shall not obligate the County's Consultant to attend nor
prevent the County's Consultant from attending any such meeting(s).
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The Project Developer shall cause copies of minutes of any and all
such meetings to be prepared and delivered to the participants and the
County's Consultant;
(g) advise the County and the Team of any delays or
anticipated delays in meeting the Schedule and of the actual dates on
which the various stages and construction indicated on the Schedule
are started and completed;
(h) if construction of the Project Improvements does not
progress in accordance with the dates required by the Schedule, as it
may be adjusted pursuant to the terms of this Agreement, or if it is
unlikely that such dates will be met based on the then progress of the
Work, the Project Developer may cause an acceleration of the Work by
all available means including utilization of overtime, additional work
crews and alternate material suppliers;
(i) cooperate with the Operator and the Team and require
the General Contractor and Project Architects to cooperate with the
Operator and the Team in the turnover of the Project to the Operator
and the Team for the use, occupancy and operation thereof, and
facilitate the orderly transition from construction to such use,
occupancy and operation (including, without limitation, delivery of
all maintenance manuals, warranties and the like); and
(j) supervise and coordinate the completion of "punch list"
items and warranty work following Substantial Completion.
5.5 Correction of Work. If during construction, the Project
Developer or the Project Architects reasonably determine that construction is
not proceeding in accordance with the Construction Documents as they may be
modified as permitted under this Agreement, the Project Developer shall cause
any such nonconforming work to be re-executed by the party responsible therefor
at no expense to the County and without adjustment to the Land Acquisition and
Project Development Budget or Schedule. If, however, the Project Developer
determines it to be inexpedient to require the correction of such work, an
equitable deduction under the applicable Contract or other remedy acceptable to
the Team may be pursued.
5.6 Construction Change Orders.
(a) The Project Developer may, at any time and from time
to time, by a written Change Order Request ("COR") cause changes in the Work
within the general scope of the construction required by this Agreement. Such
changes may include, but are not limited to, changes in the Construction
Documents.
(b) In the event a COR would materially and adversely
impact the Schedule, the Project Developer shall deliver to the Team the
Project Developer's written statement setting forth in detail the effect that
such change would have on the Schedule, together with a statement of the effect
of all COR's to date on the Schedule (the "Change Order Quotation").
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(c) Upon receipt of any Change Order Quotation, the Team
shall, within ten (10) Business Days, or as soon thereafter as reasonably
possible, review such proposal. Upon completion of such review, the Team, at
its sole discretion, shall have the option to (i) accept the Change Order
Quotation, in which event the parties shall be deemed to have agreed to the
Change Order Quotation, (ii) enter into negotiations with the Project Developer
concerning any aspect of the Change Order Quotation, or (iii) reject the Change
Order Quotation in writing, in which event the COR shall be deemed withdrawn
and the Project Developer shall construct the Project Improvements pursuant to
the Construction Documents without regard to such COR. Any failure of the
Team to respond to a Change Order Quotation within ten (10) Business Days of
delivery to the Team thereof shall be deemed disapproval of such Change Order
Quotation and withdrawal of such COR. Upon the Team's acceptance of a Change
Order Quotation, either as originally submitted or as modified with the
agreement of the Project Developer and the Team, the Project Developer shall
cause the work required by such COR to be performed and the Schedule shall be
adjusted as provided in the applicable Change Order Quotation.
(d) Except as otherwise may be provided in Exhibit C, the
County shall not have the right to approve or disapprove any COR except a COR
which would materially reduce any of the Program Requirements. Such approval
shall not be unreasonably withheld or delayed.
5.7 Payment and Performance Bonds. (a) Prior to the commencement
of the work under each subcontract between the General Contractor and the
General Contractor's subcontractors for the construction of any Project
Improvements, the Project Developer shall cause to be submitted to the County a
performance bond and a labor and materialman's payment bond for that
subcontract; provided, however, that no such bonds shall be required if the
subcontract is less than Two Hundred Fifty Thousand ($250,000) Dollars, and with
the inclusion of that subcontract, the aggregate amount of unbonded subcontracts
does not exceed ten percent (10%) of the aggregate of all contract sums of such
subcontracts for the construction of the Project Improvements. Such bonds shall
comply with the provisions of Part Two of Exhibit H hereto.
(b) Notwithstanding anything to the contrary in this
Agreement, if a performance bond and a labor and material payment bond are
issued for the Contract with the General Contractor which includes all the
Project Improvements and may also include construction management duties
between Project Developer and the General Contractor in an amount not less than
one hundred percent (100%) of the cost of the Project Improvements, and such
bonds comply with the provisions of Part Two of Exhibit H hereto, then the
Project Developer shall not be obligated to submit to the County any individual
performance bond or labor and materialmen's payment bond for any subcontractor
of the General Contractor.
(c) The costs of all such bonds are included in the Land
Acquisition and Project Development Budget and shall be included in the
applicable Contract(s) and agreement(s).
5.8 Payment For Project Improvements.
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(a) Except as otherwise provided in this Agreement, the
Project Developer shall timely cause to be paid from the Construction Fund all
due and owing applications for payment and other charges in connection with the
design and construction of the Project Improvements. The County's Consultant
shall have the right to review applications for payment and the documentation
submitted in connection therewith.
(b) The Project Developer shall require that concurrent
with each application for payment, Contractors execute and furnish waivers of
liens and lien rights current through the last day of the period covered by such
application and that subcontractors, suppliers or other Persons requesting
payment and not engaged directly by the Project Developer execute and furnish
such waivers current through the last day of the period covered by the
immediately preceding application for payment (or, with respect to waivers from
such Persons not in privity with the Project Developer, the Project Developer
may rely on a certificate of the General Contractor to the effect that all
amounts owing to all such Persons through such day were paid to them). It is
the purpose and intention of the parties that the Project Improvements be
designed and constructed free of liens and claims; the Project Developer agrees
to cause the same to occur and shall require the execution of and obtain any
other forms necessary to assure an effective waiver of mechanics' and
materialmen's liens and claims in compliance with the laws of the State of
Florida.
ARTICLE VI
DISBURSEMENTS FROM THE CONSTRUCTION FUND
6.1 Definitions. For purposes of this Article VI, the following
terms shall have the meanings indicated:
"Contingency Fund" means the amount initially set forth as the
Contingency Fund in the Land Acquisition and Project Development Budget, as
adjusted from time to time by the amount of any Project Cost Amendments.
"Developer's Certificate" means a certificate in the form of
Exhibit I hereto, with the information required by such form completed by the
Project Developer.
"Full LOC Amount" means an amount, determined as of any
Funding Determination Date, equal to 100% of the Shortfall as of such date.
"Full LOC Test" means that the Project Developer shall have
deposited cash in the Construction Fund in an amount equal to, or Trustee shall
be holding a Letter of Credit for, the Full LOC Amount.
"Funding Determination Date" means a date, reasonably
determined by the Project Developer on the basis of the Schedule and the
progress reports delivered to pursuant to Section 12.2 hereof, that is 30 days
prior to the date the Trustee shall require funds to be on deposit in the
25
Construction Fund in order to pay for any Shortfall, but not, in any event,
prior to the date, so determined, that is 90 days prior to the date of
disbursement of the entire Fixed County Project Funding.
"Interim LOC Amount" means an amount, determined as of any
Shortfall Determination Date, equal to 33.33% of the Shortfall as of such date.
"Interim LOC Test" means that the Project Developer shall have
deposited cash in the Construction Fund in an amount equal to, or Trustee shall
be holding a Letter of Credit for, the Interim LOC Amount.
"Letter of Credit" means an unconditional, irrevocable letter
of credit expiring 90 days after the Scheduled Completion Date and issued by
NationsBank or such other bank as is reasonably satisfactory to the County.
"Project Cost Amendment" means any modification of the Land
Acquisition and Project Development Budget by the Project Developer.
"Shortfall" means the cumulative amount (if a positive sum),
from time to time, of Project Cost Amendments which are not covered by the
Contingency Fund.
"Shortfall Determination Date" means any date on which the
Project Developer delivers a Developer's Certificate which evidences a
Shortfall equal to or exceeding $10 million.
6.2 Modifications to the Land Acquisition and Project Development
Budget. The Project Developer shall have the right, from time to time, to (i)
reallocate funds from the Contingency Fund to any other category of the Land
Acquisition and Project Development Budget to be applied to an increase in any
other category of the Land Acquisition and Project Development Budget resulting
from any changes to the Project which the Project Developer shall determine to
be necessary or desirable and (ii) reallocate to the Contingency Fund any
reduction in any other category of the Land Acquisition and Project Development
Budget resulting from any Project Cost Amendment which the Project Developer
shall determine to be necessary or desirable.
6.3 Draw Requests. Disbursements from the Construction Fund shall
be made upon written draw requests submitted to the Trustee either: (i) as to
construction costs and site-related work, by the General Contractor and
concurred in by the Project Developer; or (ii) as to payment for the Project
Developer's General Requirements, architecture and engineering, project
consulting fees, furniture, fixtures and equipment and pre-opening expenses, by
the Project Developer; or (iii) as to pre-development costs, Land acquisition
costs, the cost of County-Furnished Materials and amounts payable by the County
through the Contingent County Project Funding, by the County. The Project
Developer shall provide a copy of all its draw requests with respect to the
County Project Funding to the County's Consultant, for its approval in
accordance with Section 11.1 hereof, and to the Trustee for payment. Advances
for the Work shall be made only if the conditions thereto set forth in this
Agreement have been satisfied, and shall be disbursed only for the cost of
construction work
26
in place, disbursements for stored materials, if any, retainages, and any other
costs, expenses and fees paid or payable by the Project Developer or the County
for costs reflected in the Land Acquisition and Project Development Budget or
otherwise permitted under this Agreement.
6.4 Developer's Certificate. Each draw request submitted by the
Project Developer shall be accompanied by a Developer's Certificate.
6.5 Satisfaction of Interim and Full LOC Tests. In order to
secure its obligation to pay any Shortfall, the Project Developer shall (i)
within seven Business Days after any Shortfall Determination Date, cause the
Interim LOC Test to be satisfied and (ii) within seven Business Days after any
Funding Determination Date, cause the Full LOC Test to be satisfied.
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ARTICLE VII
COMPLETION
7.1 Completion.
(a) The Project Developer hereby acknowledges the
Scheduled Completion Date of October 1, 1998, that the Scheduled Completion
Date is essential to the Operator's licensing, marketing, financing and
operating plans, and agrees that it will use reasonable efforts to cause
Substantial Completion to occur on or before October 1, 1998, as such Scheduled
Completion Date may be extended as specifically provided in this Agreement.
(b) The Project Developer shall make all necessary
arrangements to permit, at the Team's election, the Team to have partial
occupancy prior to Substantial Completion of the Project as phases of the
Project Improvements are completed. Without limiting the foregoing, the Team
may in a timely manner identify to the Project Developer any particular
portions of the Project as to which the Team anticipates a need for partial
occupancy prior to Substantial Completion of the Project and the dates thereof,
which shall be reflected in the Schedule. The Project Developer specifically
agrees to use all reasonable efforts to make the areas within the Project
serving as the Team offices and the box office, as set forth in the
Construction Documents, available to the Team not less than thirty (30) days
prior to Substantial Completion and to provide the Team with written notice of
such availability. The Project Developer further agrees to use its best
efforts to permit the vendors, concessionaires and other parties engaged by the
Operator access to the Project prior to Substantial Completion. The Team's
taking partial occupancy shall not obligate the Team to accept the Project as
complete or to continue such partial occupancy nor shall such partial occupancy
constitute a waiver of any default under this Agreement.
ARTICLE VIII
CONDITIONS PRECEDENT
8.1 Conditions Precedent for the Benefit of the Project Developer.
Notwithstanding anything to the contrary set forth herein, the Project
Developer's performance of its obligations under this Agreement is expressly
conditioned upon the fulfillment or satisfaction of each of the following
conditions precedent on or prior to the date of the sale of the County Bonds
(or any other date specifically set forth below), any of which may be waived
only in writing by the Project Developer in its discretion:
(a) There shall be no unfulfilled conditions to
performance of the Land Acquisition Agreement by any party thereto, title to the
Land shall be free and clear of all liens, claims, encumbrances, restrictions
and other matters of title except those that shall have been approved in writing
by the Project Developer, the Land Acquisition Agreement shall not have been
amended
28
without the prior written consent of the Project Developer and the County shall
have delivered to the Project Developer evidence satisfactory to the Project
Developer of all the foregoing;
(b) The Project Developer shall have approved a
topographical survey and soil boring tests of the Land;
(c) The Project Developer shall have entered into
agreements satisfactory to it with all Persons the Project Developer deems
necessary with regard to development rights appurtenant to the Land and all
restrictions imposed by Applicable Law which materially affect the development
and use of the Land and the Project as contemplated by this Agreement;
(d) The Project Developer shall have received and
approved an analysis of the Permits and the time required to obtain the same.
The Project Developer has engaged a firm acceptable to it to perform such
analysis;
(e) The County shall have taken all actions necessary
with respect to sales tax rebates, as set forth in Section 13.2.8;
(f) All permits required under Part One of Exhibit G
hereto shall have been obtained or the Project Developer shall be reasonably
satisfied that such Permits will be obtained within a time period which will
permit the Project Developer to achieve Substantial Completion by the original
Scheduled Completion Date and with the expenditure of amounts not exceeding the
amount of the original Land Acquisition and Project Development Budget;
(g) No act, event or condition shall have occurred and be
existing which would render the representations and warranties of the County
set forth in this Agreement not to be true and correct as of the date of the
sale of the County Bonds and the County shall have delivered to the Project
Developer a certificate to such effect; and
(h) The Land shall be free of all Hazardous Materials, as
required pursuant to Section 2.2, and the Project Developer shall have received
evidence satisfactory to it to such effect, or the Project Developer shall be
reasonably satisfied that the County will cause this condition to be satisfied
within a time period which will permit the Project Developer to achieve
Substantial Completion by the original Substantial Completion Date and with the
expenditure of amounts not exceeding the amount of the original Land
Acquisition and Project Development Budget.
The Project Developer's performance of its obligations under this Agreement is
further expressly conditioned upon (i) the County's sale and issuance of the
County Bonds and the deposit of the Fixed County Project Funding in the
Construction Fund to be used for the purposes of this Agreement on or prior to
September 15, 1996, and (ii) the County's taking title to the Land, in
accordance with the terms of the Land Acquisition Agreement and this Agreement
on or prior to October 1, 1996.
If any of the foregoing conditions is not satisfied as of the
specified date, the Project Developer shall have the right to terminate this
Agreement by giving the County written notice to
29
such effect. In the event of such termination, the County shall apply all
Tourist Development Taxes theretofore collected by the County to the payment of
all obligations incurred by the County and the Project Developer for pre-
development expenses in accordance with the Land Acquisition and Project
Development Budget (or for the reimbursement of the County and the Project
Developer for amounts paid by them in respect of such expenses), and if such
Tourist Development Taxes are not sufficient to pay all such expenses, the
balance shall be paid by the County and the Project Developer in equal shares.
Upon such payment, the County, the Project Developer, the Operator and the Team
shall be released of all obligations under this Agreement, the Operating
Agreement and the Team License.
ARTICLE IX
DEFAULTS AND REMEDIES
9.1 Project Developer Default. If at any time the Project
Developer shall (i) cease to pursue diligently the construction of the Project
for more than sixty (60) consecutive days for any cause other than by reason of
Force Majeure or a County Default, and such cessation has the effect of
delaying the Schedule and Substantial Completion and is not excused by the
Team, (ii) fail, after funding by the Trustee of a draw request, to pay or
cause payment to the General Contractor, Project Architects, Contractors or
others engaged by the Project Developer in the design and construction of the
Project Improvements amounts due and owing and not legitimately in dispute in
connection therewith for a period of more than thirty (30) days, (iii) fail to
comply with its obligations pursuant to Section 6.5, (iv) commit any other
material breach of this Agreement which remains uncured for a period of thirty
(30) days after receipt of written notice from the County specifying in
reasonable detail the nature of the breach and the action required to cure;
provided, however, that if such matter cannot be cured within such thirty (30)
day period, the Project Developer shall not be in default if the Project
Developer shall commence the cure within such thirty (30) days and thereafter
diligently pursue the cure thereof, or (v) make a general assignment for the
benefit of creditors or if bankruptcy, reorganization, receivership,
insolvency, liquidation or other similar proceedings are instituted by or
against the Project Developer which result in the entry of an order for any
such relief and, if such proceedings are instituted against the Project
Developer, such order is not vacated, discharged, stayed or bonded pending
appeal within 120 days after entry thereof (collectively, the "the Project
Developer Default"), and shall fail to cure (which with respect to (i) above
shall mean the failure to resume the diligent pursuit of construction of the
Project Improvements) any of the foregoing within seventy-two (72) hours after
written notice thereof by the County, then the County, may upon thirty (30)
days' written notice to the Project Developer, either require specific
performance of the Project Developer's obligations hereunder, or recover such
actual damages (and not consequential damages) as to which the County may be
entitled, whether under the terms of this Agreement or otherwise, or exercise
any other right or remedy at law or in equity; provided, however, the County
waives any right it may have to terminate this Agreement upon a Project
Developer Default. Any failure of the County to exercise any right or remedy
as provided in this Agreement shall not be deemed a waiver by the County of any
claim for damages it may have by reason of the Project Developer Default or the
interruption of construction of the Project for which the Project Developer is
responsible under the terms of this Agreement.
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9.2 County Default. If the County shall (i) fail to issue the
Bonds in accordance with its obligations under this Agreement, (ii) fail to
enter into the Team License or the Operating Agreement, (iii) fail to cause the
Trustee to fund a properly completed draw request, (iv) commit any material
breach of any other covenant or any representation or warranty of the County
set forth in this Agreement which remains uncured for a period of thirty (30)
days after receipt of written notice from the Project Developer specifying in
reasonable detail the nature of the breach and the action required to cure;
provided, however, that if such matter cannot be cured within such thirty (30)
day period, the County shall not be in default if the County shall commence the
cure within such thirty (30) days and thereafter diligently pursue the cure
thereof, or (v) make a general assignment for the benefit of creditors or if
bankruptcy, reorganization, receivership, insolvency, liquidation or other
similar proceedings are instituted by or against the County which result in an
entry of an order for any such relief, and, if such proceedings are instituted
against the County, such order is not vacated, discharged, stayed or bonded
pending appeal within 120 days after the entry thereof (collectively, the
"County Default"), the Project Developer may upon thirty (30) days' written
notice to the County, either require specific performance of the County's
obligations hereunder, recover such damages as to which the Project Developer
may be entitled, whether under the terms of this Agreement or otherwise or
exercise any other right or remedy at law or in equity; provided, however, the
Project Developer waives any right it may have to terminate this Agreement upon
a County Default (except as provided in Section 8.1).
9.3 Termination Waiver. Notwithstanding and prevailing over any
contrary provision hereof, it is intended that this Agreement shall not be
subject to termination (except as provided in Sections 8.1 and 14.1) whether
because of a default or otherwise. As to all other events and circumstances,
each of the parties waive its right to terminate this Agreement albeit each
party shall have the other rights and remedies set forth in this Agreement.
ARTICLE X
INDEMNIFICATION
10.1 Indemnification by Project Developer. Notwithstanding
anything contained herein, the Project Developer shall indemnify, defend and
hold harmless the County (and each employee and agent thereof) from and against
any claim, loss, damage, liability, cost or expense, including reasonable
attorneys' fees, directly arising out of (a) any default by the Project
Developer under this Agreement or (b) any personal or bodily injury, including
death, to any person and destruction of property resulting from the performance
(or failure of performance) by Project Developer of the Work in accordance with
the provisions of this Agreement. The foregoing indemnification shall not
extend to those claims, losses, damages, liabilities, costs or expenses
asserted against or suffered by the County which are due to the acts or
omissions of the County, of its employees or agents or of architects, engineers
or contractors, if any, retained by the County, or to any action taken by the
County in violation of the provisions of this Agreement.
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10.2 Indemnification by County. Notwithstanding anything contained
herein, the County shall indemnify, defend and hold harmless the Project
Developer, the Operator and the Team (and each shareholder, director, officer,
employee, partner and agent thereof) from and against any claim, loss, damage,
liability, cost or expense, including reasonable attorneys' fees, directly
arising out of (a) any default by the County under this Agreement or (b) any
act, happening, occurrence or thing done, omitted or permitted by any Person
indemnified pursuant to this Section 10.2 in accordance with any direction,
authorization, consent, approval or agreement of the County. The foregoing
indemnification shall not extend to those claims, losses, damages, liabilities,
costs or expenses asserted against or suffered by the Project Developer which
are due to the acts or omissions of the Project Developer, of its employees or
agents or of architects, engineers or contractors retained by the Project
Developer, or to any action taken by the Project Developer in violation of the
provisions of this Agreement. Notwithstanding the foregoing, the Project
Developer acknowledges that the County's obligations to indemnify hereunder
shall be limited to the extent of the County's insurance and is subject to the
limitations of Florida law.
10.3 Indemnification Procedures. (a) If any Person indemnified
pursuant to Section 10.1 or 10.2 (an "Indemnitee") shall discover or have
actual notice of facts giving rise or which may give rise to a claim for
indemnification under this Article, or shall receive notice of any Action, with
respect to any matter for which indemnification may be claimed, the Indemnitee
shall, within twenty (20) days following service of process (or within such
shorter time as may be necessary to give the Person obligated to indemnify the
Indemnitee (the "Indemnitor") a reasonable opportunity to respond to such
service of process) or within twenty (20) days after any other such notice,
notify the Indemnitor in writing thereof together with a statement of such
information respecting such matter as the Indemnitee then has; it being
understood and agreed that any failure or delay of the Indemnitee to so notify
the Indemnitor shall not relieve the Indemnitor from liability hereunder except
and solely to the extent that such failure or delay shall have adversely
affected the Indemnitor's ability to defend against, settle, or satisfy any
such Action. Following such notice, the Indemnitor shall have the right, at
its sole cost and expense, to contest or defend such Action through attorneys,
accountants, and others of its own choosing (the choice of such attorneys,
accountants, and others being subject to the approval of the Indemnitee, such
approval not to be unreasonably withheld) and in the event it elects to do so,
it shall promptly notify the Indemnitee of such intent to contest or defend
such Action. If within twenty (20) days following such notice from the
Indemnitee (or within such shorter time as may be necessary to give the
Indemnitor a reasonable opportunity to respond to service of process or other
judicial or administrative action), the Indemnitee has not received notice from
the Indemnitor that such Action will be contested or defended by the
Indemnitor, the Indemnitee shall have the right to (i) authorize attorneys
satisfactory to it to represent it in connection therewith or (ii) subject to
the approval of the Indemnitor, which approval shall not be
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unreasonably withheld or delayed, at any time settle, compromise, or pay such
Action, in either of which events the Indemnitee shall be entitled to
indemnification therefor subject to this Section 10.3.
(b) In the event and so long as the Indemnitor is actively
contesting or defending against an Action as hereinabove provided, the
Indemnitee shall cooperate with the Indemnitor and its counsel in such contest
or defense, shall join in making any appropriate counterclaim or cross-claim in
connection with the Action, and shall provide such access to the books and
records of the Indemnitee as shall be necessary in connection with such defense
or contest, all at the sole cost and expense of the Indemnitor. Notwithstanding
that the Indemnitor is actively conducting such defense or contest, any Action
may be settled, compromised or paid by the Indemnitee without the consent of the
Indemnitor; provided, however, that if such action is taken without the
Indemnitor's consent, its indemnification obligations in respect of such claim
shall thereby be nullified. Any such Action may be settled, compromised, or
paid by the Indemnitor without the Indemnitee's consent, so long as such
settlement or compromise does not cause the Indemnitee to incur any present or
future material cost, expense, obligation or liability of any kind or nature.
(c) In the event any Action involves matters partly
within or partly outside the scope of the indemnification by an Indemnitor
hereunder, then the attorneys' fees, costs, and expenses of contesting or
defending such Action shall be equitably allocated between the Indemnitee and
the Indemnitor.
(d) If a conflict of interest exists between the
Indemnitee and the Indemnitor with respect to any Action, the Indemnitee shall
have the right to participate in the defense of such Action with separate
counsel chosen by the Indemnitee, subject to the reasonable approval of the
Indemnitor, and paid by the Indemnitor.
10.4 Limitation. Indemnification under this Article X does not
include indemnification against loss or liability due to Force Majeure.
ARTICLE XI
REPRESENTATIVES
11.1 Representatives. Upon execution of this Agreement, the Project
Developer shall designate in writing to the County the name of the individual
who is to be "the Project Executive" with full authority to execute any and all
instruments requiring the Project Developer's signature and to act on behalf of
the Project Developer with respect to all matters arising out of this Agreement.
The Project Developer may also designate a Person who shall act as the "Project
Manager". The Project Manager shall represent the interests of the Project
Developer, be responsible for overseeing all aspects of design, construction and
development of the Project, and work closely with the County's Consultant and
the Team, on behalf of the Project Developer, reporting to the Project
Executive.
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The County Administrator shall be the "County's Representative," who
shall act as liaison and contact person between the Project Developer and the
County in administering and implementing the terms of this Agreement. Except as
otherwise provided in this Agreement, the Project Developer shall submit a
request for consent or review of matters which require consent or review by the
County, to the County's Representative, who, shall either consent or obtain the
County's consent (as to matters requiring consent) or review the matter (as to
matters requiring review). The County's consent shall be required with respect
to any amendment to this Agreement. The County's Representative, or his
authorized designee, shall respond to requests for consent, waiver or review
within five (5) Business Days after submittal, and the County shall respond to
requests regarding matters requiring the County's consent within 30 days after
submittal. In either case, if a written notice of disapproval is not received
by the Project Developer within the specified time period, the matter shall be
deemed approved. The Project Developer and any Person dealing with the County
in connection with this Agreement or any matter governed by this Agreement may
rely and shall be fully protected in relying upon the authority of the County's
Representative or any such designee to act for and bind the County in any such
matter.
Upon execution of this Agreement, the County shall designate in
writing to the Project Developer the name of the Person who is to be the
"County's Consultant" to act on behalf of the County in accordance with the
provisions of this Agreement. In addition to matters specifically provided for
herein, the County's Consultant is authorized to: (i) monitor the performance
and progress of all aspects of the Project and report its findings to the
County; (ii) recommend approval by the County of disbursements and requests for
payment of the County Project Funding; and (iii) inspect and approve (to the
extent such approval is required) all documents delivered pursuant to this
Agreement to ensure compliance with the provisions hereof. The County's
Consultant shall act expeditiously with respect to any request for its approval
of submissions pursuant to clauses (ii) and (iii) of the previous sentence, and
such approvals shall not be unreasonably withheld.
From time to time following the execution hereof, the Project
Developer may change or replace the Project Executive or Project Manager, and
the County may change or replace the County's Representative or County's
Consultant, upon five (5) Business Days' written notice to the other party,
delivered to such party in the manner and at the address indicated in Section
14.8 hereof.
ARTICLE XII
SCHEDULES AND REPORTS
12.1 Design and Construction Schedules. The Project Developer
shall, not later than sixty (60) days from the execution hereof, prepare and
deliver to the County, for informational purposes only, a schedule for the
permitting, design and construction of the Project Improvements (such schedule,
as revised from time to time (with the County being furnished informational
copies of such revisions), being referred to as the "Schedule"). The Schedule
shall include time for adverse weather conditions to the extent normally
encountered in the Sunrise, Florida area and the impacts thereof, establish a
date for Substantial Completion not later than the Scheduled Completion Date,
delineate
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all phases of the Project Improvements and set forth a date for completion of
each phase in sufficient detail to allow the County or its representative(s) to
monitor progress of the Project. The Schedule shall be related to the design
and construction of all aspects of the Project Improvements. The Schedule
shall indicate the dates for the starting and completion of the various stages
of design and construction and shall be revised as required by the conditions
of the Project. The parties acknowledge and agree that notwithstanding any
theoretical delay or theoretical extensions of time for completion as may be
shown on any schedules or printouts, the Schedule shall be governed by this
Agreement and shall be extended only in accordance with the procedures set
forth in this Agreement. The phases of the Project to be addressed in the
Schedule shall include, without limitation, (a) the design phases, (b)
acquisition and approval of Permits and (c) all construction phases. Dates set
forth in this Agreement shall be included in the Schedule and such dates may
not be extended, except as provided in this Agreement.
12.2 Progress Reports. The Project Developer shall prepare and
deliver or cause to be prepared and delivered to the County's Consultant a
progress report for each month. Such report shall describe the status of the
construction of the Project Improvements and include, but not be limited to,
actual versus estimated percentage completion for each component of the Project
Improvements, any change in costs incurred in connection with the construction
of the Project Improvements, performance against schedule, any change in the
critical path and revisions to the Schedule as of the end of each reporting
period.
12.3 Significant Event Reports. Should any Force Majeure or other
situation, occurrence or event having a material impact on the Work be
anticipated, or any unanticipated Force Majeure or other situation, occurrence
or event having a material impact on the Work occur, the Project Developer will
immediately prepare a written "Significant Event Report" detailing all available
information and the steps being taken to correct the problem and forward the
same to the County's Consultant within five Business Days after the Project
Developer's discovery of such Force Majeure, situation, occurrence or event. The
County may at any time request a Significant Event Report on any event that in
the County's Consultant's reasonable opinion falls under this category.
12.4 Inspection Reports. The Project Developer shall cause its
designee to implement and require all necessary inspection, testing, peer review
and safety programs for the design and construction of the Project, and shall
prepare and submit its procedures, schedules and requirements with respect to
such programs in writing to the County's Consultant. The County's Consultant
shall have the right to participate in the implementation of such programs. The
Project Developer shall cause copies of all inspection reports to be sent to the
County. Progress Reports required under Section 12.2 hereof shall advise the
County's Consultant of the status of such programs.
12.5 Final Construction Report. (a) Within 35 months after
issuance of the County Bonds, the Project Developer shall deliver or cause to
be delivered to the County's Consultant a report which shall set forth (i) the
total costs incurred by the Project Developer in connection with the design and
construction of the Project Improvements through the date of such report, (ii)
all material items required to complete the Project Improvements and the
estimated cost thereof, and (iii) the status of
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any litigation affecting the Project Developer or the County and related to the
design and construction of the Project Improvements.
(b) Within 180 days after Substantial Completion, the
Project Developer shall deliver or cause to be delivered to the County's
Consultant a final construction report, which report shall set forth the total
costs incurred by the Project Developer in connection with the construction of
the Project through Substantial Completion of the Project Improvements and the
Project Developer's estimate of the remaining costs of design and construction
of the Project to final completion.
12.6 Returns Required by Law. The Project Developer shall execute
and file punctually when due all forms, reports and returns relating to the
Project required by Applicable Law, including, without limitation, reports
relating to the employment of personnel.
12.7 Inspection Rights of the County. The Project Developer agrees
that the County, through the County's Consultant, shall have the right at all
times during normal business hours of the Project Developer, the Contractors or
General Contractor, as the case may be, and at such other times as the County's
Consultant may reasonably request, to review the Construction Documents and to
inspect the progress of the construction of the Project Improvements. The
County agrees to require the County's Consultant to comply with all applicable
safety requirements and procedures. In addition, the Project Developer shall
keep the books and records to be maintained by the Project Developer pursuant
to this Agreement at its regular business office, which the County or its
authorized agent or representative may examine and/or audit (at the County's
expense) at all reasonable times upon reasonable notice (not less than one
Business Day) to the Project Developer. The Project Developer further agrees
to preserve and enforce the foregoing in favor of the County as to the General
Contractor and all Contractors or other Persons retained by or on behalf of the
Project Developer. The provisions of this Section 12.7 shall in no way limit
or otherwise relieve the Project Developer from the Project Developer's
obligation to complete the Project Improvements in conformance with this
Agreement unless the County's inspections or tours unreasonably interfere with
the Project Developer's construction of the Project Improvements and then only
to the extent that such acts continue after the Project Developer's notice to
the County of such interference. The County, through appropriate designees,
which may change from time to time, further reserves the right to enter the
Project during regular business hours to conduct fire, safety and health
inspections or to exercise County's normal police powers, provided (a) the
County shall use its best efforts not to interfere with the operations of the
Project Developer and (b) the County's inspection rights shall not be deemed to
limit in any way the Project Developer's rights to contest the County's
findings with respect to such inspections or the exercise of such police
powers.
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ARTICLE XIII
REPRESENTATIONS, WARRANTIES AND COVENANTS
13.1 Project Developer's Representations, Warranties and Covenants.
The Project Developer hereby represents and warrants to, and covenants with,
the County that:
13.1.1 Organization. The Project Developer is a limited
partnership duly formed, validly existing and in good standing under the laws
of the State of Florida. The Project Developer has all requisite power and
authority to enter into this Agreement.
13.1.2 Authorization; No Violation. The execution, delivery
and performance by the Project Developer of this Agreement have been duly
authorized by all necessary action and will not violate the charter documents
of the Project Developer or result in the breach of or constitute a default
under any loan or credit agreement, or other material agreement to which the
Project Developer is a party or by which the Project Developer or its material
assets may be bound or affected; this Agreement has been duly executed and
delivered by the Project Developer and this Agreement and the documents
referred to herein constitute valid and binding obligations of the Project
Developer.
13.1.3 Litigation. No suit is pending against or affects
the Project Developer which could have a material adverse effect upon the
Project Developer's performance under this Agreement or the financial condition
or business of the Project Developer. There are no outstanding judgements
against the Project Developer which would have a material adverse affect upon
its assets, properties or franchises.
13.1.4 No Conflicts. This Agreement is not prohibited by
and does not conflict with any other agreements, instruments, judgements or
decrees to which the Project Developer is a party or is otherwise subject.
13.1.5 No Violation of Laws. The Project Developer has
received no notice as of the date of this Agreement asserting any noncompliance
in any material respect by the Project Developer with applicable statutes,
rules and regulations of the United States of America, the State of Florida, or
of any other state or municipality or agency having jurisdiction over and with
respect to the transactions contemplated in and by this Agreement; and the
Project Developer is not in default with respect to any judgment, order,
injunction or decree of any court, administrative agency, or other governmental
authority which is in any respect material to the transactions contemplated
hereby.
13.2 County's Representations, Warranties and Covenants. The
County hereby represents and warrants to, and covenants with, the Project
Developer that:
13.2.1 Organization. The County is a public body
corporation and politic and a political subdivision of the State of Florida.
The County has all requisite power and authority to enter into this Agreement.
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13.2.2 Authorization; No Violation. The execution, delivery
and performance by the County of this Agreement are within the power of the
County and have been duly authorized by all necessary action and are authorized
by and will not violate the County's charter, the County's code of ordinances,
the County's administrative code and any other Applicable Laws, or result in
the breach of any material agreement to which the County is a party; this
Agreement has been duly executed and delivered by the County and this Agreement
and the documents referred to herein constitute valid and binding obligations
of the County. Subject to the provisions of Section 9.1 hereof, the Project
Developer is irrevocably vested with all rights required by the Project
Developer in order to perform its obligations hereunder, including, without
limitation, the right directly to negotiate, procure and enter into binding
purchase, supply and service Contracts for the design, construction and
equipping of the Project and the Project Improvements, without further
involvement by the County except as expressly provided in this Agreement.
13.2.3 Litigation. No suit is pending against or affects
the County which could have a material adverse effect upon the County's
performance under this Agreement.
13.2.4 No Conflicts. This Agreement is not prohibited by
and does not conflict with any other agreements, instruments, judgments or
decrees to which the County is a party or is otherwise subject.
13.2.5 Non-Competition. The County reasserts, reconfirms
and incorporates herein its covenants and agreements regarding non-competition
set forth in the Operating Agreement, and all subdivisions thereof, and agrees
that such covenants shall inure to the benefit of Project Developer in the same
manner and to the same extent as if made directly to and for the Project
Developer as well as the Operator.
13.2.6 No Violation of Laws. The County has received no
notice as of the date of this Agreement asserting any noncompliance in any
material respect by the County with applicable statutes, rules and regulations
of the United States of America, the State of Florida or any agency having
jurisdiction over and with respect to the transactions contemplated in and by
this Agreement; and the County is not in default with respect to any judgment,
order, injunction or decree of any court, administrative agency, or other
governmental authority which is in any respect material to the transactions
contemplated hereby.
13.2.7 Tourist Development Tax. The Broward County Board of
Commissioners has duly adopted Ordinance No. 96-9 and Ordinance No. 96-10, each
amending Section 31 1/2-16, "Tourist Development Tax", of the Broward County
Code by levying an additional one percent (1%) local option tourist development
tax to assist in the payment of the County Bonds. Upon the execution of this
Agreement, all conditions precedent to the effective date for the levy and
imposition of the taxes authorized by such ordinances shall have been
satisfied.
13.2.8 State Sales Taxes. The County has taken or will take
all actions necessary for the County to receive annual rebates of $2 million of
Florida sales tax pursuant to the provisions of
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Sections 288.1162 and 212.20, Florida Statutes, and the County is entitled to
receive such annual rebates.
ARTICLE XIV
MISCELLANEOUS
14.1 Force Majeure. Except as otherwise herein expressly provided,
if either party shall be delayed or hindered in, or prevented from, the
performance of any covenant or obligation hereunder, as a result of any Force
Majeure, and, provided that the party delayed, hindered or prevented from
performing notifies the other party both of the commencement and of the
expiration of such delay, hindrance or prevention, (each notice being required
within ten (10) days of the respective event) and provided further that the
Project Developer has complied with its obligation to deliver a Significant
Event Report, then the performance of such covenant or obligation shall be
excused for the period of such delay, hindrance or prevention and the period
for the performance of such covenant or obligation shall be extended by the
number of days equivalent to the number of days of the impact of such delay,
hindrance or prevention. Failure to so provide the foregoing notice will
result in waivers of both excuse in performance and extension of time to
perform under this Section 14.1 with respect to any such delay, hindrance or
prevention. Notwithstanding the foregoing, if any such event of Force Majeure
causes any increase (the "Cost Increase") in the total costs of designing,
developing, equipping and constructing the Project for the Team's 1998-99
season, as contemplated by the Team License, over such total costs as
determined pursuant to this Agreement immediately prior to the Force Majeure
event (the "Pre-FM Project Cost"), and such Cost Increase exceeds $12 million,
exclusive of any insurance proceeds collected by or made available to the
Project Developer as a result of such Force Majeure event, the Project
Developer shall have the right, upon written notice to the County ("Termination
Notice"), to terminate this Agreement; provided, however, that in the event the
Project Developer so gives notice to terminate this Agreement, the County
shall, within 30 days after receipt of the Termination Notice, by notice to the
Project Developer, either (i) accept such termination (in which event, all
obligations of the Project Developer hereunder, the guarantor under the
Substantial Completion Guaranty Agreement, the Operator under the Operating
Agreement, the Team under the Team License and the County under all such
agreements shall also terminate); or (ii) accept such termination and execute
an assumption, satisfactory in form and substance to the Operator and the Team,
of all obligations of the Project Developer to pay the Cost Increase and any
delay costs, losses reasonably anticipated by the Team to be actually incurred
by it by reason of the delay in its ability to use the Facility caused by the
Force Majeure event, increased financing costs, and all other costs to the
Project Developer, the Operator and the Team associated with the Force Majeure
event (collectively, the "FM Increase"), and to design, develop and construct
the Project Improvements and complete the Project in accordance with the terms
which this Agreement would require were this Agreement still in effect and as
required by the Operating Agreement and the Team License (in which event, the
obligations of the Project Developer under this Agreement shall terminate, and
the Operating Agreement and the Team License shall remain in full force and
effect); or (iii) reject such termination by the Project Developer, deposit in
the Construction Fund funds (other than proceeds of the County Bonds) in an
amount equal to the FM Increase, to be
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available for the purposes contemplated by this Agreement, the Operating
Agreement and the Team License, together with a covenant to budget and
appropriate any amounts (the "Additional FM Increase") in addition to the FM
Increase amount which are subsequently determined by the Project Developer to
have been incurred due to such event of Force Majeure (in which event this
Agreement, the Substantial Completion Guaranty Agreement, the Operating
Agreement and the Team License shall remain in full force and effect). In the
event the County elects clause (ii) in the preceding sentence, (x) the
Substantial Completion Guaranty Agreement shall terminate except only as to the
amount, if any, by which the Pre-FM Project Cost exceeds the Land Acquisition
and Project Development Budget as in effect on the date hereof less the amount
of any change orders implemented by the County which reduce the Pre-FM Project
Cost, (y) the County shall not make any changes to the development, design and
construction contemplated by this Agreement, the Program Requirements and the
Construction Documents without the prior written consent of the Team and (z)
the County's obligations under the foregoing clause (y) shall survive such
termination of this Agreement. In addition, in the event the County elects
such clause (ii), at such time as the Team commences to use the Facility
pursuant to the Team License, the amount of the FM Increase attributable to
losses anticipated to be incurred by the Team shall be adjusted and an
appropriate payment made, if necessary, to reflect whether or not the Team
actually played in any playoff games during the delay period.
14.2 Amendment; Waiver. No alteration, amendment or modification
hereof shall be valid unless executed by an instrument in writing by the
parties hereto with the same formality as this Agreement. The failure of the
County or the Project Developer to insist in any one or more instances upon the
strict performance of any of the covenants, agreements, terms, provisions or
conditions of this Agreement or to exercise any election herein contained shall
not be construed as a waiver or relinquishment for the future of such covenant,
agreement, term, provision, condition, election or option, but the same shall
continue and remain in full force and effect. No waiver by the County or the
Project Developer of any covenant, agreement, term, provision or condition of
this Agreement shall be deemed to have been made unless expressed in writing
and signed by an appropriate official on behalf of the Project Developer or the
County.
14.3 Consent. Unless otherwise specifically provided herein, no
consent or approval by the County or the Project Developer permitted or
required under the terms of this Agreement shall be valid or be of any validity
whatsoever unless the same shall be in writing, signed by the party by or on
whose behalf such consent is given.
14.4 Severability. If any article, section, subsection, term or
provision of this Agreement or the application thereof to any party or
circumstance shall, to any extent, be invalid or unenforceable, the remainder
of the article, section, subsection, term or provision of this Agreement or the
application of same to parties or circumstances other than those to which it is
held invalid or unenforceable shall not be affected thereby and each remaining
article, section, subsection, term or provision of this Agreement shall be
valid and enforceable to the fullest extent permitted by law, provided that no
such severance shall serve to deprive either party of the enjoyment of its
substantial benefits under this Agreement.
40
14.5 Captions. The captions of articles and sections are for
convenient reference only and shall not be deemed to limit, construe, affect,
modify or alter the meaning of such articles or sections.
14.6 Binding Effect. Except as may otherwise be provided herein to
the contrary, this Agreement and each of the provisions hereof shall be binding
upon and inure to the benefit of the Project Developer and the County, and
their respective permitted successors and assigns.
14.7 Relationship of Parties. Nothing contained in this Agreement
shall be deemed or construed by the parties hereto or by any third party to
create the relationship of principal and agent, partnership, joint venture or
any association between the Project Developer and the County.
14.8 Notices. All notices, demands, consents, approvals,
statements, requests and invoices to be given under this Agreement shall be in
writing, signed by the party or officer, agent or attorney of the party giving
the notice, and shall be deemed effective upon receipt if hand delivered, or
sent by telecopy or overnight courier service; and if sent by the United States
mail, postage prepaid, certified mail, return receipt requested, upon delivery
or the date of refusal, addressed as follows:
To the County:
County Administrator
Broward County, Florida
115 S. Andrews Avenue, Room 409
Ft. Lauderdale, Florida 33301
with copy to:
Director, Department of Finance
and Administrative Services
115 S. Andrews Avenue, Room 121
Fort Lauderdale, Florida 33301
with copy to:
The County Attorney
115 S. Andrews Avenue, Room 423
Fort Lauderdale, Florida 33301
41
To the Project Developer:
Arena Development Company, Ltd.
c/o Huizenga Holdings, Inc.
200 S. Andrews Avenue, 6th Floor
Fort Lauderdale, Florida 33301
Attention: President
Either party may from time to time by written notice given to the other
pursuant to the terms of this Section 14.8 change the address to which notices
shall be sent or designate one or more additional Persons to whom notices are
to be sent.
14.9 Applicable Law. This Agreement has been prepared in the
State of Florida and shall be governed in all respects by the laws of the State
of Florida.
14.10 Cross References. Any reference in this Agreement to a
Section, Subsection, Article or Exhibit is a reference to a Section,
Subsection, Article or Exhibit, as appropriate, of this Agreement, unless
otherwise expressly indicated.
14.11 Effective Date. This Agreement shall be a legally binding
agreement, in full force and effect, as of the date set forth in the first
paragraph of this Agreement.
14.12 Antidiscrimination Clause. The Project Developer shall
comply with all applicable state, local and federal laws, rules, regulations,
executive orders and agreements pertaining to discrimination in employment,
unlawful employment practices and affirmative action.
14.13 Further Assurances. The County and the Project Developer
shall execute, acknowledge and deliver, after the date hereof, without
additional consideration, such further assurances, instruments and documents,
and shall take such further actions, as the Project Developer or the County
shall reasonably request of the other in order to fulfill the intent of this
Agreement and the transactions contemplated thereby. The Project Developer and
the County shall make such changes to this Agreement, and the County shall make
such changes to the Operating Agreement and the Team License, as may be
necessary in order to implement the Plan of Finance attached hereto as Exhibit
C. This provision shall survive the termination of this Agreement.
14.14 Third-Party Beneficiary. The provisions of this Agreement
are for the exclusive benefit of the parties hereto and not for the benefit of
any third person, nor shall this Agreement be deemed to have conferred any
rights, express or implied, upon any third person unless otherwise expressly
provided for herein, provided that the parties expressly designate the Team as
a third-party beneficiary hereof and confer upon the Team all the rights
granted to the Team in this Agreement.
14.15 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
42
14.16 Date of this Agreement. As used in this Agreement, the
terms "date of this Agreement", "date hereof" and words of similar import shall
mean and refer to the date set forth on the first page of this Agreement.
14.17 Gender and Terms. Whenever the context shall so require,
all words herein in any gender shall be deemed to include the masculine,
feminine, or neuter gender, and all singular words shall include the plural,
and all plural words shall include the singular.
14.18 Prior Agreements Superseded. This Agreement supersedes any
prior understanding or written or oral agreements between the parties
respecting the within subject matter, including, without limitation, the LOI,
but not including the Sunrise Agreement, and together with the Team License,
the Operating Agreement and the Sunrise Agreement, contains the entire
understanding between the parties with respect thereto.
14.19 This Agreement. The words "herein," "hereof," "hereunder,"
"hereby," "this Agreement" and other similar references shall be construed to
mean and include this Agreement and all amendments hereof and supplements
hereto unless the context clearly indicates or requires otherwise.
14.20 Non-Exclusive Remedies. Except as otherwise provided
herein, no remedy herein conferred or reserved is intended to be exclusive of
any other available remedy or remedies, and each and every such remedy shall be
cumulative and shall be in addition to every such remedy given under this
Agreement or now or hereafter existing at law or in equity or by statute. It
is expressly agreed that the remedy at law for breach by a party of its
obligations hereunder may be inadequate in view of the complexities and
uncertainties in measuring the actual damages which would be sustained by
reason of either party's failure to comply fully with each of such obligations.
Accordingly, the obligations of each party hereunder are expressly made
enforceable by specific performance, except as otherwise specifically provided
herein.
14.21 Exhibits. All exhibits referred to herein shall be
considered a part of this Agreement as fully as if and with the same force and
effect as if such exhibit had been included herein in full.
14.22 Language. The language used in this Agreement shall be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction shall be applied against any party.
14.23 Saturday. Sunday or Holiday. If the final date of any
period provided for herein for the performance of an obligation or for the
taking of any action falls on a day other than a Business Day, then the time of
such period shall be deemed extended to the next Business Day.
14.24 Approvals by County and the Team. No approval given or
withheld by the County and the Team shall relieve the Project Developer, or the
Persons retained by or on behalf of the Project Developer for the design or
construction of the Work, from responsibility for the proper and timely
performance of the Project Developer's and such Persons' obligations. No
approval by the
43
County and the Team shall impose, imply or be construed as an assumption by the
County or the Team of any duties or responsibilities of others with respect to
the design or construction of the Work or for the construction means and
methods employed by or on behalf of the Project Developer or any Person
retained by or on behalf of the Project Developer.
14.25 Lawsuits. To the extent the County Attorney determines it
is legally able to do so, the County agrees to cooperate with, assist (in a
form and manner to be agreed by the County and the Project Developer at the
time of the filing of a complaint) the Team and/or the Project Developer in
connection with or relating to third party efforts, by legal action (in a
lawsuit, on appeal or otherwise), which threatens to stop or delay the
imposition of the Tourist Development Tax, the purchase of the Land (including
development rights), the negotiation, execution, or implementation of this
Agreement or any other agreement between the County, the Team and the Project
Developer or to materially delay completion of the Project or to materially
increase the cost of completion of the Project.
14.26 Attorneys' Fees. In the event of any controversy, claim or
dispute between the parties arising from or relating to this Agreement
(including, but not limited to, the enforcement of any indemnity provisions),
the prevailing party shall be entitled to recover reasonable costs, expenses
and attorneys' fees. For all purposes of this Agreement and any other
documents relating to this Agreement, the terms "attorneys' fees" or "counsel
fees" shall be deemed to include paralegals and legal assistants' fees, and
wherever provision is made herein or therein for the payment of attorneys' or
counsel fees or expenses, such provision shall include, but not be limited to,
such fees and expenses (and any applicable sales taxes thereon) incurred in any
and all judicial, bankruptcy, reorganization, administrative or other
proceedings, including appellate proceedings, whether such fees or expenses
arise before proceedings are commenced or after entry of a final judgment.
14.27 Assignment. The Project Developer shall have the right to
assign this Agreement to any Person to whom the Operator is permitted to assign
the Operating Agreement or to whom the Team is permitted to assign the Team
License or any Affiliate of such Person. Any such transferee shall take
subject to and must assume all the obligations of the Project Developer under
this Agreement. The Project Developer shall require the transferee to execute
an assignment and assumption agreement in such form and content as is
reasonably acceptable to the County. Except for the foregoing, the Project
Developer shall not assign, transfer, pledge or encumber its rights or
interests in this Agreement.
44
IN WITNESS WHEREOF, the parties hereto have entered in this Development
Agreement as of the day and year first hereinabove written.
Project Developer:
-----------------
ARENA DEVELOPMENT COMPANY, LTD.
By: Arena Development Company, Inc.,
general partner
By: /s/ H. Wayne Huizenga
----------------------------
Chairman
County:
------
BROWARD COUNTY, FLORIDA
By: John E. Rodstrom
----------------------------------
ATTEST: Chair of the Board of County Commissioners
/s/ B. Jack Osterholt
------------------------
County Administrator
APPROVED AS TO FORM:
/s/ Noel Pfeffer
------------------------
County Attorney
45
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
[TO BE PROVIDED]
EXHIBIT B
PROGRAM REQUIREMENTS
GENERAL
THESE PROGRAM REQUIREMENTS ARE DESIGNED TO REFLECT THE INTENT OF THE
PROJECT DEVELOPER AND THE COUNTY WITHIN THE CONFINES OF A RAPIDLY PROGRESSING
DESIGN FOR THE PROJECT. THESE PROGRAM REQUIREMENTS ARE NOT MEANT TO BE
LIMITING IN ANY WAY, EITHER BY INCLUSION OR EXCLUSION, BUT ARE MEANT TO SHOW
THE NATURE OF THE UNDERSTANDING BETWEEN THE PROJECT DEVELOPER AND THE COUNTY AS
IT RELATES TO THE VARIOUS COMPONENTS OF THE PROJECT IMPROVEMENTS.
Capitalized terms used in these Program Requirements which are defined
in the Team License shall have the same meaning as in the Team License. Terms
which are defined in these Program Requirements shall have the meaning set
forth herein.
The purpose of these Program Requirements is to generally describe the
Team's requirements that the Project will be a state-of-the-art, multi-purpose
sports and entertainment facility, containing seating of approximately 18,000-
19,500 for Home Games, 19,000-21,500 for basketball games and 21,500 for
concerts (including seating behind the stage), including related surface
parking and marshaling/loading areas, designed and constructed to support the
occupancy of NHL hockey and professional basketball franchises and to host
other sporting events, family shows, concerts, and related events. The Project
will include approximately 750,000-850,000 square feet in at least three (3)
public concourses, as well as mechanical and service levels and may include
appropriate amenities, such as clubs, restaurants and shops, among other
features. The Project will be equipped with modern technological systems for
acoustics, utilities, seating configurations including adjustable or
exchangeable systems designed to perfect the difference in sight lines for
basketball and hockey event transition, food and beverage facilities, live
television production, loading/unloading, mechanical systems, lighting, video
distribution, ice plant, storage, furnishings, vertical transportation,
environmental graphics and signage, video display boards, scoreboards, exterior
marquees, advertising displays, sound distribution and other features designed
to provide patron, employee and tenant convenience. The Project shall also
include sufficient space for 7,500 surface parking spaces.
The Project shall include without limitation any and all Furnishings,
Fixtures, Equipment, Millwork, Mechanical, Electrical, Plumbing, Sound Systems,
Lighting Systems, Concession Equipment (fixed and portable), Shoring,
Underpinning, Waterproofing, Damp-proofing, Structural Systems, Interior Wall
Finishes, Exterior Wall Finishes, Roofing, Flashing, Railings, Ornamental
Metals, Doors, Frames, Glass, Sash, Ticket Windows, Finish Hardware, Ceilings,
Acoustical Treatment, Floor Coverings, Exterior Stairs, Interior Stairs, Toilet
Partitions, Toilet Accessories, Signs and Identifying Devices, Lockers, Mats,
Rugs, Window Treatments, Basic Television and Radio Production Facilities and
Equipment, Seats, Restaurant Equipment and Furnishings, Lounge and Bar
Equipment and Furnishings, Loge Furniture and Equipment, Furnishings and Decor,
Office Improvements, Retail Store Improvements and Fixtures, Elevators,
Escalators, Plumbing Fixtures,
Fire Protection Systems, Heating, Ventilating and Air Conditioning Systems, Ice
Systems, Rigging Systems, Closed Circuit Television Systems, Camera Platforms,
Seating Platforms, Snow Melting Equipment, Security Systems, Spotlights,
Exterior Building Lighting, Landscaping, Building Energy Management Systems,
Lighting Management Systems, Hockey Dasher Systems, Catering Equipment, Kitchen
and Food Preparation Equipment, Concession Equipment, Operable Walls, Time
Clocks, Blackout Curtains, Whirlpool Baths, Ticket Window Reader Boards, Dock
Equipment, Handicapped Hearing Aids, Handicapped Seating Platforms, Trash Chute
and Compactor Systems, Folding Chairs, Hockey Goals, Soccer Goals, Storage
Racks or Systems for the Soccer Carpet, Telephone Equipment, Turnstiles, Mobile
Radios, First Aid Room Equipment, Forklifts, Pallet Jacks, Portable Stages,
Organ/Synthesizers, Snow Removal Equipment, Ice Sub-floor Covers, Banners,
Flags, Waste Receptacles, Cash Room Equipment, Storage Systems, Laundry
Equipment, Metal Detectors, Pneumatic Tube Systems, Zambonis, Dark Room
Equipment, Seat Storage Carts, Computer Equipment, Portable Standards and
Ropes, Maintenance and Housekeeping Equipment, Time and Shot Clocks, Scorers'
Tables, Fixed and Movable Seats, Electrical Sub-Metering, Truck and Trailer
Mechanical and Electrical Connections, Window Washing Equipment, Retractable
and Movable Platforms and Seats, Scoreboards, Basketball Floors, Basketball
Goals, Video Production Equipment, Radio Production Equipment, Broadcast
Cabling, Strength and Conditioning Equipment, Locker Room Equipment (except the
Team's), Television Monitors at Concourses and Loges, Exterior Marquee Signs,
Interior and Exterior Graphics which may be required to construct, operate, use
and occupy a "first class", "state-of-the-art" arena. The Project shall have a
complete television production and control room and related equipment. All
design efforts are subject to final approval of the Team.
2
EXHIBIT C
PLAN OF FINANCE
I. County Bonds as defined in the Development Agreement to be issued
pursuant to Section 2.3 (b) of the Development Agreement will be
either of the following as mutually determined by the County and
Project Developer with the goal of the lowest annual debt service
payment:
A. Long term fixed rate taxable bonds issued by the County no
later than September 15, 1996, subject to extension by mutual
agreement of the parties, with a final maturity as set forth
in Section 2.3 (b) of the Development Agreement.
B. A combination of long term fixed rate tax-exempt and taxable
bonds with a final maturity as set forth in Section 2.3 (b) of
the Development Agreement issued pursuant to the terms set
forth in Section II of this Plan of Finance. The long term
fixed rate tax-exempt bonds will be issued by the County no
later than September 15, 1996, subject to extension by mutual
agreement of the parties. The long term fixed rate taxable
bonds, at the option of the County and the Project Developer,
may be issued by the County at a later date as funds are
needed as determined by the County.
C. County will issue completion bonds (the "Completion Bonds") up
to 10% of original amount as provided in Article VIII of
Operating Agreement and 2.3 (f) of Development Agreement the
debt service of which will be paid by the Operator.
II. Fixed Rate Long Term Tax-Exempt and Taxable Bonds.
A. Definitions applicable to Fixed Rate Long Term Tax-Exempt and
Taxable Bonds.
1. "County Preferred Revenue Allocation" means an annual
amount, payable as required by Section 5.2.1 of the
Operating Agreement equal to the difference between
(a) the County's actual annual debt service
requirement on the Fixed Rate Long Term Tax-Exempt
and Taxable Bonds in whatever combination and
principal amounts in which these bonds are ultimately
issued and (b) $10 million. The debt service
requirement on the Fixed Rate Long Term Tax-Exempt
and Taxable Bonds, for purposes of computing the
County Preferred Revenue Allocation, shall be fixed
and determined at the time of issuance of the Fixed
Rate Long Term Tax-Exempt and Taxable Bonds or,
collectively, shall be fixed and determined at the
time of issuance of the Fixed Rate Long Term Taxable
Bonds, if these Bonds are not issued simultaneously
with the Fixed Rate Long Term Tax Exempt Bonds.
In the event of the issuance of and
subsequent mandatory call of the Fixed Rate Long Term
Tax-Exempt Bonds pursuant to Section II.C.4.b.(1) of
this Plan of Finance and the issuance of Fixed Rate
Long Term Taxable
Refunding Bonds therefor pursuant to Section
II.C.6.a. of this Plan of Finance, "County Preferred
Revenue Allocation" shall mean an annual amount,
payable as required by Section 5.2.1 of the Operating
Agreement equal to the difference between (a) the sum
of the County's actual annual debt service
requirement on the Fixed Rate Long Term Taxable
Refunding Bonds plus the Fixed Rate Long Term Taxable
Bonds and (b) $10 million. The debt service
requirement on the Fixed Rate Long Term Taxable
Refunding Bonds and the Fixed Rate Long Term Taxable
Bonds, for purposes of computing the County Preferred
Revenue Allocation, shall be fixed and determined at
the time of issuance of the Fixed Rate Long Term
Taxable Refunding Bonds.
2. "County's Equity" means the sum of:
a. The amount of the Professional Sports
Franchise Facilities Tax receipts contributed
by the County to pay interest during
construction or Project costs.
b. The amount of the Sales Tax Rebate
contributed by the County to pay interest
during construction or Project costs.
c. The amount received by the County from the
City of Sunrise for the purchase of an
easement and contributed by the County to the
Project to pay land acquisition costs.
d. The fair market value of any land contributed
by the County, the acquisition of which was
not financed by outstanding debt of the
County.
e. Any other County contributions deemed County's
Equity by the County's Bond Counsel.
3. "County's Equity Repayment" means the aggregate of
Private Payments first received equal to the County's
Equity as estimated by the certificate of the
County's Financial Advisor prior to the completion of
construction and as determined by the certificate of
the County's Financial Advisor following the
completion of construction.
4. "Discrete Portion" means all or any combination of
the following which has been designated as Discrete
Portion for the purposes of allocation of the Bond
Proceeds:
a. Suites and co-op suite levels of Premium Seating
b. Locker Rooms, weight rooms and like training
facilities
c. Team Office Space
2
d. Operator's Office Space
e. Team Retail Store
f. Interactive Area
g. Restaurant Area
h. Team Box Office
i. Coaches' Office
j. Parking allocable exclusively to other
Discrete Portions
k. Any other areas or spaces identified by the
County's Bond Counsel
5. "Private Payments" means:
a. Payments by the Team, the Project Developer
or the Operator for the Project Developer
Project Funding pursuant to Section 2.3(e)
and Article VI of the Development Agreement,
and payments by any other private party such
as the General Contractor pursuant to a
guaranteed maximum contract; and
b. Payments by the Team, the Project Developer
or the Operator for additions which
constitute enlargements or upgrades to the
Facility and which are owned by the County;
and
c. Payments of the County Preferred Revenue
Allocation and the Guaranty thereof by the
Team in excess of the lesser of:
(1) Debt Service on the portion of the
Fixed Rate Long Term Taxable Bonds
and Completion Bonds allocable on a
reasonable basis to the final costs
of the Discrete Portion plus
issuance costs and capitalized
interest attributable thereto, or
(2) Reasonable compensation for the use
of the Discrete Portion based on the
final costs thereof; and
d. Payments of the County's share of remaining
Facility Operating Revenue as provided in
Section 5.2 of the Operating Agreement
allocable on a reasonable basis to the Fixed
Rate Long Term Tax-Exempt Bonds;
less the portion of any payment borne by the County
that is properly allocable to the payment of ordinary
and necessary expenses (as defined under Section 162
of the Internal Revenue Code) directly attributable
to the operation and maintenance of the Facility and
is approved by the County's Bond Counsel.
6. "Private Payments Cap" means the amount equal to 10%
of the present value of the aggregate debt service
payments made or reasonably expected to be
3
made on the Fixed Rate Long Term Tax-Exempt Bonds
(other than the portion of the debt service payments
that constitutes interest during construction paid
from the proceeds of the Fixed Rate Long Term
Tax-Exempt Bonds, if any), such present value to be
determined as of the date of issuance based on the
discount rate equal to yield on the Fixed Rate Long
Term Tax-Exempt Bonds.
B. Basic Terms of the Fixed Rate Long Term Taxable Bonds.
1. Amount of Issue.
a. The aggregate costs of the Discrete Portion,
as mutually agreed by the Project Developer
and the County, plus issuance costs and
capitalized interest reasonably attributable
thereto.
(1) At the time of issuance of the Fixed
Rate Long Term Taxable Bonds, the
aggregate cost of the Discrete
Portion will be based on the
certificate signed jointly by the
Architect and General Contractor as
to the aggregate estimated cost of
the Discrete Portion.
(2) Following the determination of all
final costs, the Architect and the
General Contractor shall be required
to deliver their joint certificate
as to the aggregate final costs of
the Discrete Portion.
2. Final Maturity
a. As set forth in Section 2.3 (b) of the
Development Agreement.
3. Source of payment of debt service
a. The County Preferred Revenue Allocation and
the Guaranty thereof by the Team.
(1) To the extent that payments of debt
service on the Fixed Rate Long Term
Taxable Bonds do not exceed the
lesser of the reasonable compensation
for the use of the Discrete Portion
or the debt service on the Fixed Rate
Long Term Taxable Bonds, these
payments will not be treated as
Private Payments.
(2) To the extent that payments of such
debt service exceed the lesser of
the reasonable compensation for the
use of the
4
Discrete Portion or the debt service
on the Fixed Rate Long Term Taxable
Bonds, these payments will be
treated as Private Payments to the
extent allocable on a reasonable
basis to the Fixed Rate Long Term
Tax-Exempt Bonds.
(3) A certificate of the County's
Financial Advisor, or such other
person as is satisfactory to the
County's Bond Counsel, will be
required at the time of issuance of
the Fixed Rate Long Term Taxable
Bonds as to whether payments of such
debt service are reasonably expected
to exceed the reasonable
compensation for the use of the
Discrete Portion based on the
aggregate estimated costs therefor
set forth in the certificate from
the Architect and the General
Contractor.
(4) An additional certificate of the
County's Financial Advisor, or such
other person as is satisfactory to
the County's Bond Counsel, will be
required at the time the Architect
and the General Contractor deliver
their joint certificate as to the
aggregate final costs of the
Discrete Portion as to whether the
payment of such debt service exceeds
reasonable compensation for the use
of the Discrete Portion based on the
aggregate final costs therefor set
forth in the certificate from the
Architect and the General
Contractor.
b. Proceeds of the Professional Sports Franchise
Facilities Tax not used to pay debt service
on the Fixed Rate Long Term Tax-Exempt Bonds.
c. Proceeds of the Sales Tax Rebate not used to
pay debt service on the Fixed Rate Long Term
Tax-Exempt Bonds.
d. Fixed Rate Long Term Taxable Bonds shall be
secured pari passu with Fixed Rate Long Term
Tax-Exempt Bonds.
5
4. Call provisions.
a. Customary call provisions with or without
premium.
C. Basic Terms of Fixed Rate Long Term Tax-Exempt Bonds.
1. Amount of Issue.
a. The remainder of the cost to be borne by the
County not financed by the Fixed Rate Long
Term Taxable Bonds, plus cost of issuance and
capitalized interest reasonably attributable
thereto.
2. Final Maturity
a. As set forth in Section 2.3 (b) of the
Development Agreement.
3. Source of payment of debt service.
a. Proceeds of the Professional Sports Franchise
Facilities Tax
b. Proceeds of Sales Tax Rebate
c. The County Preferred Revenue Allocation and
the Guaranty thereof by the Team not used to
pay debt service on the Fixed Rate Long Term
Taxable Bonds.
(1) This payment will be treated as a
Private Payment attributable to the
Private Payments Cap.
d. Fixed Rate Long Term Taxable Bonds shall be
secured pari passu with Fixed Rate Long Term
Tax-Exempt Bonds.
4. Call provision.
a. Customary call provisions whether with or
without premium.
b. Extraordinary Mandatory Call provision whether
with or without premium.
(1) When the Director of Finance of the
County delivers a certificate to the
Trustee stating that:
(a) the County's Equity Repayment
has been received and that
the net present value of the
Private Payments
6
actually received after
receipt of the County's Equity
Repayment, together with the
net present value of the
Private Payments reasonably
expected to be received within
the immediately succeeding
twelve months, using the
originally projected receipts,
will exceed the Private
Payments Cap, and
(b) the Director has been unable
to obtain from its nationally
recognized bond counsel an
opinion that there has been a
change in federal law since
the date of issuance of the
Fixed Rate Long Term
Tax-Exempt Bonds which would
render a mandatory call
unnecessary in order to
preserve the tax-exempt status
of the Fixed Rate Long Term
Tax-Exempt Bonds,
then the County shall call the Fixed
Rate Long Term Tax-Exempt Bonds (and
pay call premium, if any) at the
next interest payment date occurring
at least 90 days after the date of
the delivery of the certificate by
the Director of Finance to the
Trustee (the "Mandatory Call Date").
5. After the County's Equity Repayment has been received,
under no circumstances shall the net present value of
the aggregate Private Payments exceed the Private
Payments Cap, unless the County has received an
opinion from its nationally recognized bond counsel
that, due to a change in federal law subsequent to the
date of issuance of the Fixed Rate Long Term
Tax-Exempt bonds, the receipt of aggregate Private
Payments in excess of the Private Payments Cap will
not adversely affect the tax exempt status of the
Fixed Rate Long Term Tax-Exempt Bonds.
6. Refunding of Fixed Rate Long Term Tax-Exempt Bonds
with Fixed Rate Long Term Taxable Bonds upon Mandatory
Call.
a. Upon the Mandatory Call, the County shall,
prior to the Mandatory Call Date, refund the
Fixed Rate Long Term Tax-Exempt Bonds with
fixed Rate Long Term Taxable Refunding Bonds.
7
D. Basic Terms of Fixed Rate Long Term Taxable Refunding Bonds.
In the event the Fixed Rate Long Term Tax-Exempt Bonds are
called pursuant to Section II.C.4.b, the County will issue
Fixed Rate Long Term Taxable Refunding Bonds with the goal of
the lowest annual debt service payment.
1. Amount of Issue.
a. Amount necessary to refund the Fixed Rate
Long Term Tax-Exempt Bonds plus call premium
(if any), required reserves and issuance
costs.
2. Final Maturity
a. As set forth in Section 2.3 (b) of the
Development Agreement, for the remaining term
of the License Agreement (with level debt
service) or longer if extended by mutual
agreement of the Project Developer and the
County.
3. Source of payment of debt service.
a. Proceeds of the Professional Sports Franchise
Facilities Tax.
b. Proceeds of Sales Tax Rebate
c. The County Preferred Revenue Allocation and
the Guaranty thereof by the Team not used to
pay debt service of the Fixed Rate Long Term
Taxable Bonds.
d. The Fixed Rate Long Term Taxable Refunding
Bonds shall be secured pari passu with the
Fixed Rate Long Term Taxable Bonds.
4. Call provisions.
a. Customary call provisions with or without
premium.
E. Required amendments to Development Agreement, Operating
Agreement and/or License Agreement under this financing
alternative.
1. The definition of "County Preferred Revenue
Allocation" as set forth in the Operating Agreement
must be amended as set forth herein.
2. The term of the License Agreement and renewal options
(other than renewal options at fair rental value
determined at the date of renewal) will be limited to
80% of the useful life of the Facility.
8
III. Cost Savings
A. The Trustee shall deposit into the Interest Account and the
Principal Account of the Bond Fund any amount remaining in the
Construction Fund after the Completion Date and payment of all
costs and expenses to be paid from the Construction Fund, as
provided in the Trust Agreement.
9
EXHIBIT D [05/23/96]
LAND ACQUISITION AND PROJECT DEVELOPMENT BUDGET
[Enlarge/Download Table]
BUDGET CATEGORY DETAIL AMOUNT
--------------- ------ ------
I. LAND ACQUISITION
1. Land Acquisition: Land $ 12,557,500
II. PROJECT DEVELOPMENT
2. Pre-Development Costs: Development Approvals $ 150,000
Program Management 250,000
Architectural & Engineering 500,000
Civil Engineering & Surveys 180,000
Contractor 250,000
Legal 100,000
Geotechnical 70,000
Pre-Development Contingency 600,000 $ 2,100,000
3. Architecture and Engineering: A&E Services $ 10,240,000
Reimbursable Expenses 860,000 $ 11,100,000
4. Site Related Work: Off-Site Infrastructure $ 4,000,000
Developer Approvals 100,000
Traffic Consultant 55,000 $ 4,155,000
5. Construction: Site Work $ 5,000,000
Materials 47,000,000
Concession Equipment 7,500,000
Finishes & Specialties 12,750,000
Art in Public Places 600,000
HVAC 10,000,000
Plumbing 4,700,000
Fire Protection 1,700,000
Electrical 11,000,000
Scoreboard & Equipment 5,000,000
Seating 3,600,000
General Conditions 6,100,000
Payment/Performance Bond 600,000
Fee 2,200,000 $117,750,000
6. Project Developer's
General Requirements: Fees, Permits, Surveys & Tests $ 2,830,000
Financial & Legal Consulting 875,000
Insurance 1,750,000 $ 5,455,000
7. Project Consulting Fees: County's Consultant $ 800,000
Reimbursable Expenses 350,000
Project Management 800,000 $ 1,950,000
8. Furniture, Fixtures & Equipment: FF&E $ 5,000,000
9. Pre-Opening Expenses: Start-Up, Marketing
& Premium Seat Sales $ 5,000,000
10. Contingency Fund: Contingency $ 10,632,500
TOTAL LAND ACQUISITION AND PROJECT DEVELOPMENT BUDGET $175,700,000
ESTIMATED SOURCES AND USES OF FUNDS*
[Download Table]
Sources of Funds
Sunrise Easement $ 4,000,000
Proceeds of County Bond Issue 177,790,000
Collection of Tourist Development Tax (2%) 16,000,000
Collection of Sales Tax 4,000,000
Investment Income 10,830,000
-------------
Total, Sources of Funds $ 212,620,000
Uses of Funds
Land Acquisition Cost** $ 12,557,500
Project Development Budget** 163,142,500
Contingency 510,000
Deposit to Debt Service Reserve Fund 7,458,000
Interest Paid on Bonds During Construction 20,296,000
Deposit to Capitalized Interest Account 4,630,000
Underwriting and Issuance Expenses 1,813,000
Municipal Bond Insurance Premiums 2,213,000
------------
Total, Uses of Funds $212,620,000
__________________
* Table reflects issuance of Fixed Rate Long Term Taxable Bonds only and
shall be adjusted to conform with the Final Plan of Finance which
contemplates a mix of taxable and tax-exempt bonds.
** Aggregating the Land Acquisition and Project Development Budget
2
EXHIBIT E
SUBSTANTIAL COMPLETION GUARANTY AGREEMENT
THIS SUBSTANTIAL COMPLETION GUARANTY AGREEMENT ("AGREEMENT"), dated as of
_________________, 1996, of FLORIDA PANTHERS HOCKEY CLUB, LTD., a Florida
limited partnership ("Guarantor"), joined by ARENA OPERATING COMPANY, LTD., a
Florida limited partnership ("Operator"), in favor of BROWARD COUNTY, FLORIDA
(the "County").
W I T N E S S E T H:
WHEREAS, Arena Development Company, Ltd. (the "Project Developer"), and the
County are parties to that certain Development and Construction Agreement of
even date herewith (the "Development Agreement"); and
WHEREAS, all terms used in this Agreement shall have the meanings given to
such terms in the Development Agreement or, if not defined in the Development
Agreement, in the Operating Agreement or Team License (as such terms are
defined in the Development Agreement); and
WHEREAS, as an inducement to County to sign the Development Agreement,
Guarantor agreed to guaranty the Substantial Completion of the Project
Improvements as provided in the Development Agreement.
NOW, THEREFORE, in consideration of the foregoing and intending to be
legally bound hereby, Guarantor hereby guaranties and agrees as follows:
1. The Project Improvements will be Substantially Completed by
the Project Developer, but if the Project Developer abandons the Work or does
not Substantially Complete the Project Improvements in accordance with the
Development Agreement, Guarantor shall cause the Project Improvements to be
Substantially Completed in accordance with the provisions of the Development
Agreement. This is a guaranty of Substantial Completion and not a guaranty of
any costs, damages or other amounts to which the County may claim to be
entitled under the Development Agreement or otherwise, other than costs
required in order to achieve Substantial Completion of the Work in accordance
with the provisions of the Development Agreement. In no event shall Guarantor
be responsible for any FM Increase or any Additional FM Increase.
2. In the event the Guarantor is required to perform its
obligations in accordance with Paragraph 1 above, by its acceptance hereof, the
County agrees to cause the Trustee to disburse to Guarantor, in accordance with
the terms and conditions of the Development Agreement and the Trust Agreement,
the balance of the County Project Funding, any amounts deposited by the Project
Developer in the Construction Fund or made available through a Letter of Credit
and, if applicable, the Supplemental County Project Funding for the purpose of
enabling Guarantor to cause the Substantial Completion of the Project
Improvements. Further, in such event, all rights, privileges and defenses of
the Project Developer pursuant to the Development Agreement, or if the
Development
Agreement is terminated, all such rights, privileges and defenses as would
exist were the Development Agreement still in effect, and/or the Trust
Agreement shall inure to the benefit of Guarantor.
3. Guarantor shall pay to the County, upon demand, all losses and
reasonable costs and expenses, including reasonable attorney's fees, that may
be incurred by the County in attempting to cause satisfaction of Guarantor's
liability under this Agreement. Should Guarantor fail to cause the Project
Improvements to be Substantially Completed as required herein and the County
elects to undertake to complete all unfinished Work (but the County shall have
no obligation to undertake such completion), Guarantor hereby agrees to
reimburse the County for all costs and expenses of any kind or nature incurred
by the County, other than any FM Increase or any Additional FM Increase, in
completing the Project Improvements in accordance with the Construction
Documents over and above the balance of the County Project Funding, any amounts
deposited by the Project Developer in the Construction Fund or made available
through a Letter of Credit and the Supplemental County Project Funding.
4. Performance by the County of all its obligations under the
Development Agreement, or, if the Development Agreement is terminated, all such
obligations as would exist were the Development Agreement still in effect,
shall be a condition precedent to Guarantor's performance of its obligations
under this Agreement.
5. In the event of a default by the Project Developer under the
Development Agreement, Guarantor waives any right to require the County to (i)
proceed against the Project Developer or pursue any rights or remedies with
respect to the Development Agreement, or (ii) pursue any other remedies
whatsoever available to the County.
6. This Agreement shall be a continuing one and shall be binding
upon Guarantor until ninety (90) days after Substantial Completion of the
Project Improvements. This Agreement shall terminate 90 days after such
Substantial Completion or upon termination of the Development Agreement
pursuant to Section 8.1 or Section 14.1 thereof, except to the extent otherwise
expressly provided in such Section 14.1.
7. In order to secure the obligations of Guarantor under this
Agreement, Guarantor and Operator hereby pledge and grant to the County (and by
its acceptance hereof, County, as a party to the Operating Agreement and Team
License, consents to such pledge and grant) a first lien security interest in
(i) $4,000,000 of contractual Facility revenues to be received annually from
the sale or license of Premium Seating, (ii) $2,000,000 of contractual Facility
revenues to be received annually from the sale or license of Advertising
(excluding revenue attributable to the sale or license of Sponsor Signs), (iii)
no less than $6,000,000 as a combination of the foregoing (i) and (ii), and
(iv) any Supplemental Rent payments made pursuant to the License Agreement.
This pledge will be deemed to include any advance collections of the revenues
referenced herein. This pledge and grant of a security interest shall
terminate upon the termination of this Agreement except for the first lien
security interest in the Supplemental Rent payments received pursuant to the
License Agreement, which shall continue. The County shall have no right to
pledge, encumber, mortgage or lien the collateral pledged hereby or the
County's security interest therein, and this pledge and grant of a security
interest shall terminate upon any such pledge, encumbrance, mortgage or grant
of lien by the
2
County. Nothing contained herein shall preclude the County from attempting to
perfect its security interest by filing a UCC-1 Financing Statement with
respect to the collateral.
8. The obligation of Guarantor hereunder shall not be released,
discharged, mitigated, impaired or affected by (i) any extensions of time,
indulgences or modifications which the County may extend or make with the
Project Developer in respect of or the performance of any of the obligations of
the Project Developer under any one or more of the provisions of the
Development Agreement, (ii) any waiver by or failure of the County to enforce
any of the terms, covenants, conditions and provisions of the Development
Agreement, (iii) any assignment of the Development Agreement by the Project
Developer or by any trustee, receiver or liquidator, or (iv) any consent which
the County may give to any such assignment.
9. Guarantor expressly waives the necessity of, and where
applicable, the right to receive notice of, any of the following and Guarantor
expressly agrees that this guaranty shall not be discharged, diminished,
released, reduced, altered, impaired or otherwise affected by the waiver of any
of the following: (a) presentment, protest, dishonor, notice of dishonor,
notice of nonpayment, notice of acceptance and presentment for payment; (b)
alterations, modifications, renewals or extensions of the Development
Agreement; and (c) acceptance of this guaranty.
10. Without limiting the generality of the foregoing, the
liability of Guarantor under this Agreement shall not be waived, released,
discharged, impaired or affected by reason of the release or discharge of the
Project Developer in any receivership, bankruptcy, winding-up, insolvency or
other creditors' proceeding.
11. No action or proceeding brought or instituted under this
Agreement and no recovery in pursuance thereof shall be a bar or defense to any
further action or proceeding which may be brought under this Agreement by
reason of any further default or defaults hereunder or in the performance and
observance of the terms, covenants, conditions and provisions of the
Development Agreement.
12. This Agreement shall be governed by the laws of the State of
Florida.
13. Any notice or consent required or permitted by this Agreement
shall be in writing and shall be deemed delivered if delivered in person or if
sent by certified mail, postage prepaid, return receipt requested, as follows,
unless such address is changed by written notice hereunder:
(a) If to the County:
County Administrator
Broward County, Florida
115 S. Andrews Avenue, Room 409
Fort Lauderdale, Florida 33301
with copy to:
Director, Department of Finance
and Administrative Services
3
115 S. Andrews Avenue, Room 121
Fort Lauderdale, Florida 33301
with copy to:
The County Attorney
115 S. Andrews Avenue, Room 423
Fort Lauderdale, Florida 33301
(b) If to Guarantor:
Florida Panthers Hockey Club, Ltd.
c/o Huizenga Holdings, Inc.
200 S. Andrews Avenue, 6th Floor
Fort Lauderdale, Florida 33301
Attention: President
14. Guarantor warrants and represents that this Agreement has been
duly authorized and executed by Guarantor and is a legal, valid and binding
instrument, enforceable against Guarantor in accordance with its terms.
15. This Agreement shall inure to the benefit of the County, its
successors and assigns and shall be binding upon Guarantor and its successors
and assigns.
IN WITNESS WHEREOF, Guarantor, intending to be legally bound hereby, has
duly executed this Agreement as of the date and year first above written.
FLORIDA PANTHERS HOCKEY CLUB, LTD.
by The Florida Panthers Hockey Club, Inc.,
General Partner
by
-----------------------------------
President
Operator hereby joins in the foregoing Guaranty to evidence its agreement
to the provisions of paragraph 7 thereof.
ARENA OPERATING COMPANY, LTD.
by Arena Operating Company, Inc., general
partner
by
------------------------------------
Title:
------------------------------
4
EXHIBIT F
SBDE PLAN
1. Project Developer will use good faith efforts to cause
minority owned and women owned business enterprises to be engaged in the
construction of the Project Improvements at least up to the levels of the
Construction Goals described below.
2. Project Developer has established the following
participation percentages as its construction goals (the "Construction Goals"):
[Download Table]
(a) Minority Business Enterprise ("MBE")
African American 10%
Hispanic 10%
Asian and/or Native American 3%
(b) Women's Business Enterprise ("WBE") 7%
3. The Construction Goals are percentages of the total dollar
amounts of all trade contracts and material costs in an amount to be determined
by the Project Developer for the construction and design of the Project
Improvements, but may not necessarily be achieved in each trade.
4. (a) Women's Business Enterprise or WBE. A business
which is:
(1) A sole proprietorship, owned and
controlled by a woman;
(2) A partnership or joint venture controlled
by women in which at least 51% of the beneficial ownership interest is held by
women;
(3) A corporation or other entity controlled
by women in which at least 51% of the interest in such corporation or entity is
beneficially owned by women.
(b) Minority Business Enterprise or MBE. A business
which is:
(1) A sole proprietorship, owned and
controlled by a minority person;
(2) A partnership or joint venture controlled
by minority persons in which at least 51% of the beneficial ownership interest
is held by minority persons;
(3) A corporation or other entity controlled
by minority persons in which at least 51% of the interest in such corporation or
entity is beneficially owned by minority persons.
5. Project Developer will cooperate with the Broward
County Office of Equal Opportunity in its efforts to achieve the Construction
Goals.
6. Project Developer shall not be required to engage
MBE's or WBE's who are not the lowest responsible bidders.
2
EXHIBIT G
PERMITS WHICH MAY BE REQUIRED
Part One
--------
[Download Table]
(a) Developer Agreement with Department of Community Affairs pursuant to
Section 380.032, Florida Statutes.
(b) Chapter 380 DRI Development Order for the Project
(c) DNRP Complex Air Source License
(d) Zoning Approval (conditional use) by City
(e) County Plat Approval, including City's issuance of letter of no
objection regarding changing note on the plat
(f) DNRP Surface Water Management License
(g) DNRP Environmental Resource Lake Excavation License
(j) SFWMD Surface Water Management Permit
(i) DNRP Wetlands License
(j) U.S. Army Corps of Engineers Approval
(k) DNRP Development Review Approval
(l) DNRP EAR License (Contamination)
Part Two
--------
(a) Site Plan Approval by City
(b) Foundation Permit
(c) Permit for Arena Superstructure
(d) Certificate of Completion
(e) Certificate of Use and Occupancy
[NOT FINAL -- TO BE COMPLETED BY
MUTUAL AGREEMENT OF THE PARTIES]
EXHIBIT H
INSURANCE REQUIREMENTS
[Download Table]
Part One: Project Developer's Insurance Requirements:
-------- ------------------------------------------
1.1 Without limiting any of the other obligations or
liabilities of the Project Developer, the Project Developer
shall provide, pay for, and maintain in force until all of
Work has been completed and accepted by the County (or for
such duration as is otherwise specified hereinafter), the
insurance coverages set forth herein.
1.1.1 Worker's Compensation insurance to apply for all
employees in compliance with the "Workers'
Compensation Law" of the State of Florida and all
applicable federal laws. In addition, the
policy(ies) must include:
1.1.1.1 Employers' Liability with a limit of
_________________ Dollars
($___________) each accident.
1.1.2 Comprehensive General Liability with minimum limits
of ____________________ Dollars ($____________) per
occurrence, combined single limit for Bodily Injury
Liability and Property Damage Liability. Coverage
must be afforded on a form no more restrictive than
the latest edition of the Comprehensive General
Liability policy, without restrictive endorsements,
as filed by the Insurance Services Office, and must
include:
[ ] 1.1.2.1 Premises and/or Operations.
[ ] 1.1.2.2 Independent Contractors.
[ ] 1.1.2.3 Products and/or Completed Operation.
The Project Developer shall maintain in
force until at least three years after
completion of all Work, coverage for
Products and Completed Operations,
including Broad Form Property Damage.
[ ] 1.1.2.4 Explosion, Collapse and Underground
Coverages.
[ ] 1.1.2.5 Broad Form Property Damage.
[ ] 1.1.2.6 Broad Form Contractual Coverage
applicable to this specific Contract,
including any hold harmless and/or
indemnification agreement.
[ ] 1.1.2.7 Personal Injury Coverage with Employee
and Contractual Exclusions removed,
with minimum limits of coverage equal
to those required for Bodily Injury
Liability and Property Damage
Liability.
1.1.2.8 The County is to be expressly included
as an Additional Insured in the name of
Broward County Board of Commissioners
with respect to liability arising out
of operations performed for the County
by or on behalf of the Project
Developer or acts or omissions of the
County in connection with general
supervision of such operation.
1.1.3. Business Automobile Liability with minimum limits
of _____________ Dollars ($___________) per
occurrence, combined single limit for Bodily Injury
Liability and Property Damage Liability. Coverage
must be afforded on a form no more restrictive than
the latest edition of the Business Automobile
Liability policy, without restrictive endorsements,
as filed by the Insurance Services Office, and must
include:
1.1.3.1 Owned Vehicles.
1.1.3.2 Hired and Non-Hired Vehicles.
1.1.3.3 Employers' Non-Ownership.
[ ] 1.1.4 Builder's Risk Insurance for the construction of
and/or addition to aboveground buildings or
structures is required. The coverage shall be "All
Risk" coverage on a completed value (nonreporting)
form for full replacement value, covering Broward
County as a named insured, with a deductible of not
more than Five Thousand Dollars ($5,000.00) each
claim.
1.1.4.1 Waiver of Occupancy Clause or
Warranty--Policy must be specifically
endorsed to eliminate any "Occupancy
Clause" or similar warranty or
representation that the Facility shall
not be occupied without specific
endorsement of the policy. The Policy
must be endorsed to provide that the
Builder's Risk coverage will continue
to apply until Substantial Completion
of the Project Improvements.
2
[ ] 1.1.4.2 Flood Insurance--If the Facility is
located within an identified special
flood hazard area, flood insurance must
be afforded for the lesser of the total
insurable value thereof or the maximum
amount of flood insurance coverage
available under the National Flood
Program.
1.2 If the initial insurance expires prior to the completion of
the Work, renewal copies of policies shall be furnished at
least thirty (30) days prior to the date of their
expiration.
1.3 Notice of Cancellation and/or Restriction--The policy(ies)
must be endorsed to provide Broward County with at least
thirty (30) days notice of cancellation and/or restriction.
1.4 The Project Developer shall furnish to the County's
Consultant Certificates of Insurance or endorsements
evidencing the insurance coverage specified above within
fifteen (15) calendar days after the date of the Project
Development Agreement. The required Certificates of
Insurance shall name the types of policies provided, refer
specifically to this Contract, and state that such
insurance is as required by this Contract.
Part Two: Requirements Regarding Payment and Performance Bonds:
1. Within fifteen (15) days of being notified of the award,
Contractor shall furnish a Performance Bond and a Payment
Bond containing all the provisions of the County's
Performance Bond and Payment Bond forms 00710 and 00720.
1.1 Each Bond shall be in the amount of one hundred
percent (100%) of the Contract Price guaranteeing
to County the completion and performance of the
work covered in such Contract as well as full
payment of all suppliers, materialmen, laborers, or
subcontractors employed pursuant to this project.
Each Bond shall be with a surety company which is
qualified pursuant to Section 2 below.
1.2 Each Bond shall continue in effect for one year
after final completion and acceptance of the work
with liability equal to one hundred percent (100%)
of the Contract sum, or an additional bond shall be
conditioned that Contractor will, upon notification
by County, correct any defective or faulty work or
materials which appear within one year after final
completion of the Contract.
1.3 Pursuant to the requirements of Section
255.05(1)(a), Florida Statutes, as may be amended
from time to time, Contractor shall ensure that the
bond(s) referenced above shall be recorded in the
3
[Download Table]
public records of Broward County and provide the
County with evidence of such recording.
1.4 Alternate Form of Security:
In lieu of a Performance Bond and a Payment Bond,
Contractor may furnish alternate forms of security
which may be in the form of cash, money order,
certified check, cashier's check or unconditional
letter of credit in the County's form 00735. Such
alternate forms of security shall be subject to the
approval of County and for same purpose and shall
be subject to the same conditions as those
applicable above and shall be held by County for
one year after completion and acceptance of the
Work.
2. Bid Bonds, Performance Bonds and Payment Bonds over Five
Hundred Thousand Dollars ($500,000.00):
2.1 Each bond must be executed by a surety company of
recognized standing, authorized to do business in
the State of Florida as surety, having a resident
agent in the State of Florida and having been in
business with a record of successful continuous
operation for at least five years.
2.2 The surety company shall hold a current certificate
of authority as acceptable surety on federal bonds
in accordance with United States Department of
Treasury Circular 570, Current Revisions. If the
amount of the Bond exceeds the underwriting
limitation set forth in the circular, in order to
qualify, the net retention of the surety company
shall not exceed the underwriting limitation in the
circular, and the excess risks must be protected by
coinsurance, reinsurance, or other methods in
accordance with Treasury Circular 297, revised
September 1, 1978 (31 DFR Section 223.10, Section
223.111). Further, the surety company shall
provide County with evidence satisfactory to County
that such excess risk has been protected in an
acceptable manner.
2.3 The surety company shall have at least the
following minimum ratings or A-rated companies
listed in same Financial Size Category in the
latest revision of Best's Insurance Report:
4
[Download Table]
Best's Best's
Policy- Financial
holder's Size
Amount of Bond Ratings Category
-------------- -------- ---------
$ 500,001 to 1,000,000 A Class I
1,000,001 to 2,000,000 A Class II
2,000,001 to 5,000,000 A Class III
5,000,001 to 10,000,000 A Class IV
10,000,001 to 25,000,000 A Class V
25,000,001 to 50,000,000 A Class VI
50,000,001 or more A Class VII
2.4 For projects of $500,000.00 or less, County
may accept a Bid Bond, Performance Bond and
Payment Bond from a surety company which has
twice the minimum surplus and capital
required by the Florida Insurance Code at the
time the invitation to bid is issued, if the
surety company is otherwise in compliance
with the provisions of the Florida Insurance
Code, and if the surety company holds a
currently valid certificate of authority
issued by the United States Department of the
Treasury under Section 9304 to 9308 of Title
31 of the United States Code, as may be
amended from time to time. The Certificate
and Affidavit so certifying (Form 00622)
should be submitted with the Bid Bond and
also with the Performance Bond and Payment
Bond.
Part Three: The County's Insurance Requirements:
---------- ----------------------------------
[CONTRACTUAL LIABILITY COVERAGE]
[COUNTY-FURNISHED MATERIALS]
5
EXHIBIT I
DEVELOPER'S CERTIFICATE
Arena Development Company, Ltd. (the "Project Developer"), pursuant to
Section ___ of that certain Development Agreement (the "Agreement") dated as of
______________, 1996, between Broward County, Florida (the "County") and the
Project Developer, hereby certifies to the County as follows (all terms used in
this Developer's Certificate shall have the meanings given to such terms in the
Agreement):
(a) Project Cost Amendments. Attached hereto as Schedule
A is a true and complete description of all Project Cost Amendments from the
date of the last Developer's Certificate submitted pursuant to the Agreement
through the date hereof.
(b) Land Acquisition and Project Development Budget.
Attached hereto as Schedule B is a true and correct copy of the Land
Acquisition and Project Development Budget as in effect on the date hereof.
The Contingency Fund (not reallocated to any other Project cost category) set
forth in such Land Acquisition and Project Development Budget is
$_______________.
(c ) Effect of Project Cost Amendments. Based on the
Project Cost Amendments referred to in Schedule A hereto, the Land Acquisition
and Project Development Budget attached hereto as Schedule B shows an ___
increase or a ___ decrease in aggregate amount of the last Land Acquisition and
Project Development Budget equal to $___________. Attached hereto as Schedule
C is a true and correct copy of the Schedule as in effect on the date hereof
(which takes account of the effect of the Project Cost Amendments referred to
in Schedule A hereto).
(d) Budget vs. Actual. Attached hereto as Schedule D is
a true and complete comparison of actual Project costs incurred through the
date hereof and the costs projected to be incurred to complete the Project with
the Land Acquisition and Project Development Budget.
(e) Estimated Remaining Project Cost Drawdown Schedule.
Attached hereto as Schedule E is a projection of remaining amounts required to
be drawn down and paid from the Construction Fund each month from the month
after the month hereof until the month in which Substantial Completion occurs.
(f) Shortfall. As the date hereof, the amount of the
Shortfall, if any, is $_______.
(g) Letter of Credit. As of the date hereof, the amount,
if any, of cash or Letter of Credit required to satisfy the Interim LOC Test or
Full LOC Test pursuant to Section 6.5 of the Agreement is $__________.
Dated:____________, 19__. ARENA DEVELOPMENT COMPANY, LTD.
by Arena Development Company, Inc.,
general partner
by_____________________________
Title:_______________________
2
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 10/1/98 | | 11 | | 33 | | | None on these Dates |
| | 10/1/96 | | 12 | | 34 |
| Filed on: | | 9/18/96 |
| | 9/15/96 | | 13 | | 54 |
| | 6/4/96 | | 1 | | 6 |
| | 4/13/96 | | 13 |
| | 4/2/96 | | 6 |
| List all Filings |
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