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HomeMy WebLinkAboutSept. 27, 2011 Special Meeting Signed Agenda PackageJ ~G ~ i Illlllllllllil~lllillllllil{Iif1111111iifliilillillilliillli111111ii111i111iI11iliiliiiiliilii11111N{illlillliiii~illllllllilfilllllilillliiiilllillliilllliiiiillliiii{iillillliiiiiililililiii119iilllilliiiil September 27, 2011 1:15 P.M. SPECIAL MEETING BOARD OF COUNTY COMMISSIONERS AGENDA WELCOME ALL MEETINGS ARE TELEVISED. ALL MEETINGS PROVIDED WITH WIRELESS INTERNET ACCESS FOR PUBLIC CONVENIENCE. PLEASE TURN OFF ALL CELL PHONES AND PAGERS PRIOR TO ENTERING THE COMMISSION CHAMBERS. PLEASE MUTE THE VOLUME ON ALL LAPTOPS AND PDAS WHILE IN USE IN THE COMMISSION CHAMBERS. GENERAL RULES AND PROCEDURES -Attached is the agenda, which will determine the order of business conducted at today's Board meeting. CONSENT AGENDA -These items are considered routine and are enacted by one motion. There will be no separate discussion of these items unless a Commissioner so requests. REGULAR AGENDA -Proclamations, Presentations, Public Hearings, and Department requests are items, which the Commission will discuss individually, usually in the order listed on the agenda. PUBLIC HEARINGS -These items may be heard on the first and third Tuesday at 6:00 P.M. or as soon thereafter as possible, or on a second or fourth Tuesday, which begins at 9:00 A.M., then public hearings will be heard at 9;00 A.M. or as soon thereafter as possible. These time designations are intended to indicate that an item will not be addressed prior to the listed time. The Chairman will open each public hearing and asks anyone wishing to speak to come forward, one at a time. Comments will be limited to five minutes. As a general rule, when issues are scheduled before the Commission under department request or public hearing, the order of presentation is: (1) County staff presents the details of the Board item (2) Commissioners comment (3) if a public hearing, the Chairman will ask for public comment, (4) further discussion and action by the board. ADDRESSING THE COMMISSION -Please state your name and address, speaking clearly into the microphone. If you have backup material, please have eight copies for distribution. NON-AGENDA ITEMS -These items are presented by an individual Commissioner or staff as necessary at the conclusion of the printed agenda. PUBLIC COMMENT -Time is allotted at the beginning of each meeting for general public comment. Please limit comments to five minutes. DECORUM -Please be respectful of others' opinions. MEETINGS -All Board meetings are open to the public and are held on the first and third Tuesdays of each month; the first Tuesday at 6:00 P.M. and the third Tuesday at 9;00 A.M., unless otherwise advertised. Meetings are held in the County Commission Chambers in the Roger Poitras Administration Annex at 2300 Virginia Ave., Ft. Pierce, FL 34982. The Board schedules additional workshops throughout the year as necessary to accomplish their goals and commitments. Notice is provided of these workshops. Assistive Listening Device is available to anyone with a hearing disability. Anyone with a disability requiring accommodation to attend this meeting should contact the St. Lucie County Community Services Director at (772) 462-1777 or TDD (772) 462-1428 at least forty-eight (48) hours prior to the meeting. September 27, 2011 1:15 P.M. SPECIAL MEETING BOARD OF COUNTY COMMISSIONERS www.co.st•lucie.fl.us www.stlucieco.org iiilliiililiiiillliill{Ili~iflliiililllfiilii{Iifii~fi~li1111111Hliiilllillillitliiiililliiliillilili'ilii7hlltil~lfiilliiifilillilltllililililifiiliiliiil{IIIi111i~fiilliiiiilliliiiiiHliiiliiillifilllii~lilillii Chris Craft, Chairman District No. 5 Chris Dzadovsky, Vice Chairman District No.1 Tod Mowery District No. 2 Paula A. Lewis District No. 3 Frannie Hutchinson District No. 4 fiililiiiiliiliiiiif filiiilifiillliliiliilltillliti{iliiiiilfilllll{IUllifiittiiillif liiililliliilliiifillliiilltifiii{iilliiilil~IllYiliffliii~IIlllliiiiiliiltNiiiiiifiiiillill~tlif 011iNliiil111{ilfiillilli INVOCATION II. PLEDGE OF ALLEGIANCE PUBLIC HEARING III. COUNTY ATTORNEY Ordinance No. 11-028 -Tourist Development Tax Consider staff recommendation to approve Ordinance No. 11-028 and authorize the Chairman to sign the Ordinance. REGULAR AGENDA IV. COUNTY ATTORNEY St. Lucie County Sports Complex; Resolution No. 11-151 Authorizing a Tourist Development Tax Improvement and Refunding Revenue Bond Series 2011A and a Tourist Tax Refunding Revenue Bond, Taxable Seies 2011 B Consider staff recommendation to approve Resolution No. 11-151 and authorize the Chairman to sign the Resolution. V. COUNTY ATTORNEY Second Amendment to August 1, 2003 Facilities Use Agreement -New York Mets; 2011 Expansion Program Consider staff recommendation to approve Second Amendment to August 1, 2003 Facilities Use Agreement -New York Mets; 2011 Expansion Program NOTICE: All Proceedings before this Board are electronically recorded. Any person who decides to appeal any action taken by the Board at these meetings will need a record of the proceedings and for such purpose may need to ensure that a verbatim record of the proceedings is made. Upon the request of any party to the proceedings, individuals testifying during a hearing will be sworn in. Any party to the proceedings will be granted the opportunity to cross-examine any individual testifying during a hearing upon request. Anyone with a disability requiring accommodation to attend this meeting should contact the St. Lucie County Risk & Benefits Manager at (772) 462-1404 or TDD (772) 462-1428 at least forty-eight (48) hours prior to the meeting. AGENDA REgUEST T0: BOARD OF COUNTY COMMISSIONERS SUBMITTED BY(DEPTj SUBJECT: BACKGROUND: FUNDS AVAILABLE: PREVIOUS ACTION: RECOMMENDATION: COMMISSION ACTION: [~[ APPROVED [ J DENIED [ ]OTHER:. Approved 5.0 ITEM N0. III SPECIAL MEETING DATE: September 27, 2011 REGULAR [J PUBLIC HEARING [XX] CONSENT [] PRESENTED BY: County. Attorney Daniel S. McIntyre County Attorney Ordinance No. 11-028 -Tourist Development Tax See attached memorandum Staff recommends that the Board approve Ordinance No. 11-028 and authorize the Chairman to sign the Ordinance. CONCURRENCE: ____---_ Faye W. Outlaw, MPA County Administrator Review and Approvals County Attorney: Mana=ement & BudEet Purchasing: Danie) S. McIntyre Marie Gouin Originating Dept. Public Works Dir: County Eng.: Finance: (Check for copy only, if applicable) Eff. 5/96 ;. INTER-OFFICE MEMORANDUM ST. LUCiE COUNTY, FLORIDA TO: Board of County Commissioners FROM: Daniel S. McIntyre, County Attorney C.A. NO.: 11-897 DATE: August 17, 2011 SUBJECT: Ordinance No. ii-028 -Tourist Development Tax s********s~s**s**s*s*s**s**s**ss***************+r****************************#***s* BACKGROUND: Attached to this memorandum is a copy of draft Ordinance No. 11-028 which, if adopted, would extend the fourth cent a nd fifth cent tourist tax from January 31, 2018 to December 31, 2023. The proposed extension of the tax is part of the Phase I Expansion program wherein the Mets propose to construct a right field terrace (similar to the existing left field terrace) with a 12,000 square foot shell under the terrace for future expansion as well as the installation of a new digital scoreboard. As part of the program, the Mets have agreed to extend the term of the Facilities Use Agreement five years to 2023. The St. Lucie County Tourist Development Council unanimously approved the Phase I expansion program including the extension of the tourist development tax. The Board granted permission to advertise the proposed ordinance on August 16, 2011. Notice of Intent to adopt the proposed ordinance was published in the Tribune on September 5, 2011. RECOMMENDATION/CONCLUSION: Staff recommends that the Board approve Ordinance No. 11-028 and authorize the Chairman to sign the ordinance. Respectfully submitted, Daniel S. McIntyre County Attorney ~ DSM/caf Attachment ORDINANCE NO. i1-028 AN ORDINANCE EXTENDING THE TERM OF THE FOURTH AND FIFTH CENT TOURIST DEVELOPMENT TAX IMPOSED BY ORDINANCE NOS. 02-36 AND 03-12 FROM JANUARY 31, 2018 TO DECEMBER 31, 2023; AMENDING SECTION 1-19.3-31(a) TO CORRECTLY DENOTE THE RATE OF THE TAX AS FIVE (5%) PERCENT; PROVIDING FOR CONFLICTING PROVISIONS, SEVERABILITY AND APPLICABILITY; PROVIDING FOR FILING WITH THE DEPARTMENT OF STATE AND THE DEPARTMENT OF REVENUE; PROVIDING FOR AN EFFECTIVE DATE AND FOR TERMINATION ANO CODIFICATION. WHEREAS, the Board previously adopted Ordinance Nos. 02-36 and 03-12 imposing the additional 4`h cent and 5"' cent tourist development taxes which Ordinances expire on January 31, 2018, unless extended; and,.. .WHEREAS, this Board has determined that extending the levy and imposition of 4`h and 5`h cent tourist development taxes for the purpose of paying debt service on bonds issued to finance the construction, reconstruction or renovation of the St. Lucie County Sports Complex and to promote and advertise tourism in the State of Florida is in the best interest of the health, safety and welfare of the citizens of St. Lucie County. NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of St. Lucie County, Florida: PART A. ARTICLE III TOURIST DEVELOPMENT TAX OF CHAPTER 1-19.3 OF THE CODE OF ORDINANCES OF ST. LUCIE COUNTY, FLORIDA, READS AS FOLLOWS: Section 1-19.3-30 Levy (a) Subject to the provisions of this article and Section 125.014, Florida Statutes, there is hereby levied and imposed a tourist development tax at a rate of five (5%) percent of each dollar and major fraction ofeach dollarofthe total consideration charged for each lease or dollarand major fraction of each dollarofthe total consideration charged for each lease or rental within St. Lucie County by every person who rents, leases, or lets for consideration any living quarters or accommodations in any hotel, apartment hotel, motel, resort motel, apartment, apartment motel, roominghouse, mobile home park, recreational vehicle park, or condominium for a term of six (6) months or less, unless such persons rents, leases, or lets for consideration of any living quarters or accommodations that are exempt according to the provisions of Chapter 212, Florida Statutes. (b) The tourist development tax shall be in addition to any other tax imposed pursuant to Chapter 212, Florida Statutes, and in addition to all other taxes and fees and the consideration forthe rental or lease. ~h passages are deleted. -1- Underlined passages are added. (c) The tourist development tax shall be charged by the person receiving the consideration for the lease or rental, and it shall be collected from the lessee, tenant, or customer at the time of payment for the consideration for such lease or rental. Section 1-19.3-31. Plan for Tourist Development. (a) Anticipated revenue. The tourist development tax shall be levied at a rate of foar(~}-five f 5~ percent of each dollar at the total consideration charged for leases and rentals subject to the tax. The anticipated net tourist development tax revenue to be derived by St. Lucie County for the twenty-four (24) months following the initial levy of the two cent (2C) tax is six hundred twenty-four thousand dollars ($624,000.00}, less costs of administration a retained by the Florida Department of Revenue. (b) Boundaries for tax district. The district in which the tourist development tax is levied shall include the entirety of St. Lucie County. (c) Proposed uses of revenue of the two (2%} percent tax. The proposed uses of the tourist development tax revenue from the two (29'0) percent tourist development tax in the order of priority, are first, to provide a sports stadium and related facilities in St. Lucie County, and second, to promote and advertise tourism in St: Lucie County. (d) Expense allocation for two (2%) percent tax. The tourist development tax revenue from the two (2%) percent tourist development tax shah be allocated to providing a sports stadium and related facilities in St. Lucie County. (e) Proposed uses of revenue for the first additional one (19'0) percent tax imposed by Ordinance No. 87-82 effective January 1,1988. The proposed uses of the tourist development tax revenue for the first additional one (1%) percent tourist development tax imposed by Ordinance No. 87-82 are to promote and advertise tourism in St. Lucie County.. (f) Expenses allocation forthe first additional one (19'0) percent tax imposed by Ordinance No. 87-82 shall be allocated to promoting and advertising tourism in St. Lucie County. (g) Proposed uses of revenue for the second additional one (19'0) percent tax imposed by Ordinance No. 02-36, effective February 1, 2003. The proposed uses of the tourist development tax revenue forthe second additional one (19'0} percent tourist developmenttax imposed byOrdinance No. 02- 36are topay debt service on bonds issued to finance the construction, reconstruction or renovation ofthe St. Lucie County Sports Complex and to promote and advertise tourism in St. Lucie County and the State of Florida. (h) Expense allocation for the second additional one (1%) percent tax imposed by Ordinance No. 02-36, effective February 1, 2003. The tourist development tax revenue from the second additional one (1°'0) percent tourist development tax imposed by Ordinance No. 02-36 shall be allocated to pay debt service on bonds issued to finance the construction, reconstruction and renovation of the St. Lucie County Sports Complex and to promote and advertise tourism in St. Lucie County and the State of Florida. Strnek-ehrea6f+passages are deleted. -2- Underlined passages are added. (i) Proposed uses of revenues for the third additional one (1%) percent tax imposed by Ordinance No. 03-12. The proposed uses of the tourist development tax revenue for the third additional one (1%) percent tourist development tax imposed by Ordinance No. 03-12 are to pay debt service on bonds issued to finance the construction, reconstruction or renovation of the St. Lucie County Sports Complex and to promote and advertise tourism in St. Lucie County and the State of Florida. Q) Expense allocation for the third additional one (1Yo) percent tax imposed by Ordinance No. 03-12. Sixty-seven(67R'o)percentofthetouristdevelopment taxrevenuefromthethirdadditionalone(1~o) percent tax shall be allocated to pay debt service on bonds issued to finance the construction, reconstruction or renovation of the St. Lucie County Sports Complex. The remaining thirty-three (3390) percent of the tourist development tax revenue from the third additional one (19'0) percent tax shall only be allocated for capital facilities that promote tourism located in the St. Lucie County Fairgrounds and the area north of Midway Road. Five hundred thousand and 0/100 ($500,000.00) dollars plus interest of the remaining thirty-three (3390) percent of the tourist tax revenue from the third additional one (19'0) percent tax shall be allocated to construct a covered equestrian arena at the St. Lucie County Fairgrounds. Since the imposition of the third additional one (1%) percent tax requires approval of a majority plus one of the membership of the Board of County Commissioners, the language concerning the expense allocation set out in this subparagraph shall not be modified except upon approval by a majority plus one of the membership of the Board of County Commissioners. PART B. CONFLICTING PROVISIONS. Special acts of the Florida legislature applicable only to unincorporated areas of St. Lucie County. County ordinances and County resolutions, or parts thereof, in conflict with this ordinance are hereby superseded by this ordinance to the extent of such conflict. PART C. SEVERABILITY. Ifanyportion ofthisordinance isforanyreason held ordeclaredto be unconstitutional, inoperative or void, such holding shall not affect. the remaining portions of this ordinance. If this ordinance or any provision thereof shall be held to be inapplicable to any person, property or circumstances, such holding shall not affects its applicability to any other person, property or circumstance. PART D. APPLICABILITY OF ORDINANCE. This ordinance shall be applicable throughout St. Lucie County. PART E. FILING WITH THE DEPARTMENT OF STATE. The Clerk be and hereby is directed forthwith to send a certified copy of this ordinance to the Bureau of Laws, Department of State, The Capitol, Tallahassee, Florida, 32304. Serodrthroa6Fr passages are deleted. -3- Underlined passages are added. PART F. FILING WITH THE DEPARTMENT OF REVENUE. The County Attorney shall send a certified copy of this ordinance to the Department of Revenue, The Carlton Building, Tallahassee, Florida, 32301, within ten (10) days after approval of the Ordinance. PART G. EFFECTIVE DATE; TERMINATION. This ordinance shall take effect upon filing with the Secretar~of State. The fourth cent (4"' cent) and fifth cent l5`f' cent) tax imposed bYOrdinance No. 02-36 and 03-12 shall be in effect until December 31. 2023, unless extended by the Board. PART H. ADOPTION. After motion and second, the vote on this ordinance was as follows: Chairman Chris Craft XXX Vice Chairman Chris Dzadovsky XXX Commissioner Paula A. Lewis XXX Commissioner Todd Mowery XXX Commissioner Frannie Hutchinson XXX PART !. CODIFICATION. Provisions of this ordinance shall be incorporated in the County Code and the word "ordinance" may be changed to "section", "article" or other appropriate word, and the sections of this ordinance may be renumbered or relettered to accomplish such intention; provided, however, that Parts B to I shall not be codified. PASSED AND DULY ADOPTED this 20th day of September 2011. ATTEST: BOARD OF COUNTY COMMISSIONERS ST. LUCIE COUNTY, FLORIDA Deputy Clerk BY: Chairman APPROVED AS TO FORM AND CORRECTNESS: ~h passages are deleted. BY: County Attorney -4- Underlined passages are added. i AGENDA REQUEST ITEM N0. f V DATE: September 27, 2011 REGULAR [XX] PUBLIC HEARING [] CONSENT [J T0: BOARD OF COUNTY COMMISSIONERS PRESENTED BY: SUBMITTED BY(DEPTJ: County Attorney Daniel S. McIntyre County Attorney SUBJECT: St. Lucie County Sports Complex; Resolution No. 11-151 Authorizing a Tourist Development Tax Improvement and Refunding Revenue Bond Series 2011A and a Tourist Tax Refunding Revenue Bond, Taxable Series 20116 BACKGROUND: See attached memorandum FUNDS AVAILABLE: PREVIOUS ACTION: RECOMMENDATION: Staff recommends that the Board approve Resolution No. ii-151 and authorize the Chairman to sign the Resolution. COMMISSION ACTION: CONCURRENCE: [~ APPROVED [ ]DENIED ----- [ ]OTHER: ~"--- -- Faye W. Outlaw, MPA Approved 5.0 County Administrator Review and Approvals County Attorney: Management & Budget Purchasing: Daniel S. McIntyre Originating Dept. Public Works Dir: County Eng.: Finance: (Check for copy only, if applicable) Eff. 5/96 INTER-OFFICE MEMORANDUM ST. LUCIE COUNTY, FLORIDA TO: Board of County Commissioners FROM: Daniel S. McIntyre, County Attorney C.A. NO.: 11-1019 DATE: September 16, 2011 SUBJECT: St. Lucie County Sports Complex; Resolution No. 11-151 Authorizing a Tourist Development Tax Improvement and Refunding Revenue Bond Series 2011A and a Tourist Tax Refunding Revenue Bond, Taxable Series 20116 s*«**s********s~**.**************s*t*s***~************s*•#**.****.*******s***~e**** BACKGROUND: In 2003, the County issued a Tourist Development Tax Revenue Bond, Series 2003, dated September 10, 2003 and the County's Improvement Revenue Note, Taxable Series 2003C, dated September 17, 2003. The funds from these bonds were used to construct improvements to the St. Lucie County Sports Complex. The New York Mets have submitted a proposal to the County that would involve the issuance of new debt of not to exceed $3,000,000 to provide for the construction of a right field terrace, acquisition of a digital scoreboard, purchase of County equipment for use at the Sports Complex and expansion of the Fan Shop. The County's financial advisor, Jay Glover, has reviewed the proposed financing and has determined that the County must refund the existing 2003 bonds in order to issue the new debt. Due to favorable interest rates and the proposed extended five year term, Mr. Glover has determined that the County would be able to refund the existing 2003 bonds and issue $3,000,000 in new debt and still achieve savings on the amount of debt service payments that the County is currently making on the 2003 bonds. A copy of Mr. Glover's analysis is attached to this memorandum. Aiso attached to this memorandum is a copy of Resolution No. 11-151, prepared by the County's bond counsel. Resolution No. 11-151, if adopted, would authorize and award the negotiated sale of the not to exceed $6,400,000 Tourist Development Tax Improvement and Refunding Revenue Bond, Series 2011A and the negotiated sale of the not to exceed $1,500,000 Tourist Development Tax Refunding Revenue Bond, Taxable Series 20118. The 2011 Bonds would be secured by a first lien on the fourth cent tourist development tax and sixty-seven (67%) percent of the fifth cent tourist development tax. The bonds would also be secured by a backup pledge of the County to budget and appropriate funds as needed. The County's financial advisor solicited competitive proposals from financial institutions to purchase the bonds. As indicated in the financial advisor's analysis, the proposal submitted by JP Morgan Chase Bank, N.A. was the best proposal submitted. Adoption of Resolution 11-151 would result in the acceptance of the proposal of JP Morgan Chase Bank, N.A. The closing date for the bonds is September 30, 2011. RECOMMENDATION/CONCLUSION: Staff recommends that the Board adopt Resolution No.11-151 as drafted and authorize the Chairman to sign the Resolution. Respectfully submitted, Daniel S. McIntyre County Attorney DSM/caf ~M' ~0= The PFM Group Public Finanaal Management, Inc. PFM Asset Management LLC PFM Advisors Lincoln Plaza 407-646.2208 Suite 1170 407-648-1323 fax 300 S. Orange Avenue vuww.pfm.com Odendo, FL 32801-3470 September 20, 2011 Memorandum To: Dan McIntyre, County ~lttornc}' Marie Gouin, Office of Management and Budget Director From: Jay Glover, Public Financial Management Re: St. Luce County Sports Complex Financing -Recommendation Memo In September of 2003, St. Lucie County (the "County' issued its Tourist Development Tax Revenue Bond, Series 2003 (the "2003 Bond's and its Improvement Revenue Note, Taxable Series 2003C (the " 2003C Note' to fund improvements to the St. Lucie County Sports Complex (the "Complex'. The current interest rates are 4.605% and 5.62%, respectively and the combined annual debt service currently paid is approximatel}' $838,000 through 2018. Based on feedback from County Staff, it is Public Financial Management's (PFIvi) understanding that the County desires to finance $3,000,000 of additional improvements to the Complex without increasing the annual debt service currently paid on the 2003 Bond and 2003C Note. In order to accomplish this, PFI~i recommended to the County that the 2003 Bond and 2003C Note would need to be restructured with level annual debt service payments through 2023. By doing this, the County could add $3,000,000 of new money and have annual debt sen'ice payments of approximately $760,000 as shown in the table below. n on h i S Deht Service on 003 Bond Debt Service on X00 Note Tgtal Debt e PeriodEndinQ N ce t erv ewMonev Restructure Restructure ~£ .. 11/1/2012 298,313 313,417 151,293: 763,024. 11/1/2013 296,247 315,692 153,458 765,397 11 / t /2014 295,532 314,596 149,730 759,858 11/1/2015 294,690 313,373 151,003 759,066 t i / t / 201 G 293,721 312,023 152,098 757,842 11/1/2017 297,625 315,546 153,015 766,186 1 ] / 1 / 2018 296,275 313,815 153,755 , 763,845 11/1/2019 294,798 311,957 154,318: 761,073 11/]/2020 293,194 313,972 154,703 762,869 11/1/2021 296,463 312,733 149,910 759,106 11/]/2022 294,478 315,367 150,118 759,963 11/1/2023 297366 312747 150148 7GQ2G1 3 548 702 3 7GG 238 1,823,546_ 9,138,486 ~~ tieptember 20, 2011 Page 2 In order to obtain the desired financing, PFM distributed a request for financing proposals on August 19, 2011 requesting financing terms for the Tourist Development Tax Improvement and Refunding Revenue Bond, Series 2011x1 (the "2011x1 Bond") and Tourist Development Tax Refunding Revenue Bond, Taxable Series 2011B (the " 2011B Bond"). The 2011A Bond would be issued to restructure the 2003 Bond and fund the additional improvements to the Complex. The 2011B Bond would be issued to restructure the 2003C Note. In order to make this a viable credit for potential lenders, PFM recommended that the County secure the loans with the fourth percent tourist development tax, 67% of the fifth percent tourist development tax, as well as a covenant to budget and appropriate legallp available non ad valorem revenues for any deficiencies. The County received 6 proposals from the following firms: Banc of America Public Capital Corporation, BBVA Compass Bank, JP Morgan Chase Bank, Seacoast National Bank, SunTrust Bank and Wells Fargo. A summary of the proposals is included as Exhibit A. Following review of the proposal terms by County Staff, Bond Counsel and PFlVi it was determined that JP Morgan Chase provided the best combination of interest rates and terms. The proposed interest rates in the JP Morgan Chase Bank proposal were 2.54% for the 2011x1 Bond and 3.55°./o for the 2011B Bond. The final interest rate will be set prior to closing of the loans. PFbI recommends selecting JP Morgan Chase Bank as the loan pro~rider for the 2011x1 Bond and 2011B Bond based on the interest rates and favorable terms (including the option for prepayment without penalty on and after November 1, 2016) provided for in their proposal. ~~ ~d9€9 [!s :a~` ,. ... ~ ~ ~ ~. ~~ ~ ~ ~ ~ ~ ~ ~ ~ ~' ~_ i ~? es ~ :~ ~ ~~ ~ ~ ~~~ ~~~ ~~0 ~ ~e R 2 ~ ~ 6 ~ ~~ _ S ?~ 5 e ~ j • 7 e ~ ~ - " S k [ ~~ ~ ~ N ~ t 3 y " i ~ fl A i k -- i ii i } e 4 ~ s ~t + ~i { ~ i 2'. ~ 3 € ly ~j~ C µ` ~ i i } i$ xi. ` i 4 Y N s ~S ~~s ~t ~=~x~ ~ _ ~ x! ~ ~ ~~ - ca ~ ~ tE !~ F i , _ g d - _ i E ~ L ~ e i 7 7 _ ~ _ s ~'~ ~ " ~ - s aA ~ ? f~ r rx 7 _ F ~ ~ a $ ~~ Se `~3 - pp 3 d i 3 s ss J: S ~~ i Y ~ u G t s; > C ~ ` ~a ~ € - - 5 7 4 _ V ~ s ~~ Y L B _ ~ ~ J' - N I Y\ 9 3 i 1 A a = ~ e ` e ~ ,y S e . a a~ ~, ~ a~ Y _ Y k Y ~~ .g m~ .'Y..zaa 2 ; ~~ ~ , -F t ~ P~ -~}~~ ~ !p~ ~ ~ s~ S .~ FI ~ f s F a~ r~ E ~ Ed ~ y i E g V y E3. ~a s~ - ~g ~ P ~~ g 4 v "$ ~`, ~ s i~E 2 ` S , e . c 9~ . a a ~ x~ ~ ~ ~ y ~ a s t~ . y 0 ~ c ~ g gg 3 5 3 f _ 4 i i a Y E 7 R s 3 s F RESOLUTION N0.11-151 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF ST. LUCIE COUNTY, FLORIDA AUTHORIZING AND AWARDING THE NEGOTIATED SALE OF THE NOT TO EXCEED $6,400,000 TOURIST DEVELOPMENT TAX IMPROVEMENT AND REFUNDING REVENUE BOND, SERIES 2011A, TO REFUND THE COUNTY'S OUTSTANDING TOURIST DEVELOPMENT TAX REVENUE BOND, SERIES 2003 AND TO FUND THE ACQUISITION AND CONSTRUCTION OF ADDITIONS, EXTENSIONS AND IMPROVEMENTS TO THE ST. LUCIE COUNTY SPORTS CENTER, AND THE NEGOTIATED SALE OF THE NOT TO EXCEED $1,500,000 TOURIST DEVELOPMENT TAX REFUNDING REVENUE BOND, TAXABLE SERIES 2011B, TO REFUND THE COUNTY'S OUTSTANDING IMPROVEMENT REVENUE NOTE, TAXABLE SERIES 2003C; AUTHORIZING THE ACQUISITION AND CONSTRUCTION OF ADDITIONS, EXTENSIONS . AND IMPROVEMENTS TO THE ST. LUCIE COUNTY SPORTS CENTER; PROVIDING FOR PAYMENT OF THE SERIES 2011A BOND AND THE SERIES 2011B BOND FROM THE FOURTH CENT TOURIST DEVELOPMENT TAX AND A PORTION OF THE FIFTH CENT TOURIST DEVELOPMENT TAX SUPPORTED BY A COVENANT TO BUDGET AND APPROPRIATE ADDITIONAL FUNDS AS NEEDED; MAKING CERTAIN COVENANTS IN CONNECTION THEREWITH; AUTHORIZING FURTHER OFFICIAL ACTION IN CONNECTION WITH THE DELIVERY OF THE SERIES 2011A BOND AND THE SERIES 2011B BOND; ACCEPTING THE PROPOSAL OF JPMORGAN CHASE BANK, N.A., TO PURCHASE THE SERIES 2011A BOND AND THE 2011B BOND; AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF ST. LUCIE COUNTY, FLORIDA: Section 1. Authority for this Resolution. This resolution is adopted pursuant to the provisions of Chapter 125, Part I, Florida Statutes, as amended, and Chapter 159, Part I, Florida Statutes, Ordinance Nos. 02-36, 03-12 and 11-028 of St. Lucie County, Florida as amended, and other applicable provisions of law (collectively, the "Act"). Section 2. Definitions. The following terms shall have the following meanings when used in this resolution unless the context clearly requires otherwise. Words importing singular numbers shall include the plural number in each case and vice versa, and words importing persons shall include firms and corporations. "Authorized Investments" means those investments permitted by the county's investment policy as in effect from time to time. "Bank" means JPMorgan Chase Bank, N. A., a national banking association, with offices in Orlando, Florida, and any successor owner of the Bond. 'Board" means the Board of County Commissioners of St. Lucie County, Florida. "Bond" means collectively, the Series 2011A Bond and the Series 2011B Bond, each in substantially the form attached hereto as Exhibit B, with such modifications or changes thereto as may be necessary or desirable, in the opinion of the County Administrator, upon the advice and recommendation of the Financial Advisor, the County Attorney, and Bond Counsel, to conform the terms thereof to the terms of the Commitment or to secure for the County any additional rights or privileges not inconsistent with the terms of the Commitment, such approval to be presumed by the execution and delivery thereof by the County to the Bank. "Bond Counsel" means Bryant Miller Olive P.A., or such other law firm having a nationally-recognized practice in the areas of local, state, and federal law related to the debt obligations of state and local governments. "Chair" means the Chair of the Board, or in the Chair's absence, the Vice Chair. "Clerk" means the County Clerk of the County or in the Clerk's absence, any Deputy Clerk. "Closing Date" means September 30, 2011, or such other date mutually agreeable to the County and the Bank. "Commission' means the County Commission, as the governing body of the County. "Commitment" means the proposal for the making of the Loan dated September 9, 2011 submitted to the County by the Bank and included as Exhibit A hereto, as amended or modified prior to the adoption of this Resolution. "County" means St. Lucie County, Florida, a political subdivision of the State of Florida. "County Administrator" means the County Administrator of the County or his designee. "County Attorney" means the County Attorney of the County. "Facility Use Agreement" means the Facility Use Agreement for the St. Lucie County Sports Complex between the County and Sterling Facility Services, L.L.C., dated August 1, 2003, as amended from time to time. "Finance Director" means the Finance Director of the County. "Financial Advisor" means Public Financial Management, Orlando, Florida. "Fiscal Year" means the period from each October 1 to the succeeding September 30, or such other fiscal year as may be provided by law for the County. "Loan" means the advance of moneys from the Bank to the County pursuant to fhe terms of this Resolution. "Non-Ad Valorem Revenues" means all legally available non-ad valorem revenues of the County budgeted and appropriated for payment of the principal of and interest on the Bond in the event the Pledged Revenues alone are insufficient for that purpose; provided, however, that Non-Ad Valorem Revenues shall be received by the County (a) from sources other than the levy of ad valorem taxes upon property, and (b) not be restricted by law so as to be unable to be applied to pay the principal and interest on the Bond. "Pledged Revenues" means the proceeds of (1) the fourth percent tourist development tax levied. ,and collected within the County pursuant to the provisions of Section 125.0104(3)(1) Florida Statutes and County Ordinances Nos. 02-36, No. 03-12 and 11-028, and (2) sixty seven percent (67%) of the fifth percent tourist development tax levied and collected within the County pursuant to the provisions of Section 125.0104(3)(n)1, Florida Statutes, and County Ordinances No. 02-36, No. 03-12 and 11-028 . "Principal Amount" means the not to exceed principal amount of the Loan in the amount of Seven Million Nine Hundred Thousand and No/100 Dollars ($7,900,000.00). "Project" means the acquisition and.construction of certain capital improvements to the St. Lucie County Sports Complex including construction of a right field terrace, acquisition of a digital scoreboard, and acquisition of County capital equipment to be located or used at the St. Lucie County Sports Complex,. together with such additions thereto, modifications thereof, or deletions therefrom as may be approved by the Board from time to time, subject to the opinion of Bond Counsel that such additions, modifications, or deletions will not adversely affect the exclusion from gross income for federal income tax purposes of interest on the Bond. "Project Costs" means all or a portion of the cost of undertaking the Project including, but not limited to: engineering, legal, accounting, and financial expenses; expenses for estimates of costs and of revenues; expenses for plans, specifications and surveys; fees of fiscal agents, financial advisors or consultants; administrative expenses relating solely to the Project; reimbursement to the County for any sums heretofore expended for the foregoing purposes (to the extent that such reimbursement is permitted under the Code); payment of capitalized interest on the Loan; and such other; costs and expenses as may be necessary or incidental to the financing or refinancing of the Project. "Rate of Interest" means a fixed rate of interest set forth in each Bond determined in accordance with the rate lock procedure set forth in the Commitment (subject to adjustment from time to time as described in Exhibit B), which rate shall be calculated on the basis of a 360-day year consisting of twelve 30 day months. "Refunded Bond" means collectively, the County's outstanding Tourist Development Tax Revenue Bond, Series 2003, dated September 10, 2003 and the County's outstanding Improvement Revenue Note, Taxable Series 2003C, dated September 17, 2003. 3 "Resolution" means, collectively, this resolution and all resolutions amendatory hereof and supplemental hereto. "Series 2011A Bond" means the not to exceed $6,400,000 Tourist Development Tax Improvement and Refunding Revenue Bond, Series 2011A. "Series 2011B Bond" means the not to exceed $1,500,000 Tourist Development Tax Refunding Revenue Bond, Taxable Series 2011B. Section 3. Findings. It is hereby found, declared, and determined by the Board: (A) It necessary and desirable and in the best interests of the health, safety and welfare of the residents of the County that the County authorize the issuance of the Series 2011A Bond and the Series 2011B Bond for purposes of (i) currently refunding the Refunded Bond in order to obtain a significantly lower rate and restructure the Refunded Bond, and (ii) providing funds with which to undertake and finance the Project. The County is authorized pursuant to the provisions of the Act to undertake the Project. (B) The County is without adequate, currently available funds to pay Project Costs, and it is necessary and desirable and in the best interests of the County and its residents that the County borrow the moneys necessary to pay Project Costs. The County is authorized pursuant to the provisions of the Act to borrow moneys to pay Project Costs. (C) The County has solicited commitments from lending institutions for the Loan, the results of which have been tabulated by the Financial Advisor and presented to the Board in connection herewith. Based on (1) the terms of the Loan and (2) such other factors as set forth in the request for commitments, it is hereby determined that the Commitment of the Bank is the best proposal of those submitted. It is necessary and desirable to authorize the County Administrator to accept the Commitment on behalf of the County. (D} It is necessary and desirable and in the best interests of the health, safety and welfare of the County and its residents to execute and deliver the Bond to the Bank to evidence the Loan and to secure the obligation to repay the Loan by pledging the Pledged Revenues in connection therewith. The County is authorized pursuant to the provisions of the Act to pledge the Pledged Revenues as a means of securing its obligation to repay the Loan. The Pledged Revenues are estimated to be sufficient to pay all principal of and interest on the Bond as the same become due and to make all payments required by this Resolution and the Bond. (E) The obligation of the County to repay the Bond in accordance with its terms and the terms of the Resolution is hereby declared to be and shall be a special, limited obligation of the County, secured solely by a lien upon and pledge of the Pledged Revenues. The obligation of the County to repay the Bond in accordance with its terms and to make any other payments, if any, required hereunder or under the Bond shall not be or constitute a general obligation or indebtedness of the County and the Bond shall not be or constitute a 'bond" of the County within the meaning of Article VII, Section 12, Florida Constitution (1968). Neither -the Bank nor 4 any successor owner of the Bond shall be entitled to compel the payment of the principal of or interest on the Bond or the making of any payments required hereunder or under the Bond from any moneys of the County other than the Pledged Revenues. In particular, neither the Bank nor any successor owner of the Bond shall be entitled to compel the levy of ad valorem taxes by the County to pay the principal of and interest on the Bond or to make any payments required under the terms of the Resolution. Furthermore, the obligation of the County to repay the Bond in accordance with its terms and to make the payments, if any, required under the Resolution shall not constitute a lien upon or pledge of any property of the County, but shall constitute a lien only upon the Pledged Revenues in the manner provided herein. (F) It is hereby found and determined that due to the complexity of the financing, the turmoil in the capital markets and the need to coordinate matters among the County and the Bank, as purchaser of the Bond, it is in the best interests of the County to negotiate the sale of the Bond. The disclosure required by Section 218.385, Florida Statutes, as amended, shall be provided to the County, as evidenced by a certificate to be provided by the Bank prior to execution and delivery by the County of the Bond. Section 4. Resolution to Constitute Contract. In consideration of the acceptance of the Bond authorized to be issued hereunder to the Bank, this resolution shall be deemed to be and shall constitute a contract between the County and the Bank. The covenants and agreements set forth herein to be performed by the County shall be for the benefit, protection and security of the Bank. Section 5. Authorization of Project. The Board hereby specifically authorizes the Project. The Board hereby specifically ratifies and affirms all actions previously taken in furtherance of the undertaking of the Project. Section 6. Approval of Commitment. The. Board, upon the recommendation of the Financial Advisor, hereby accepts the Commitment on behalf of the County and authorizes the County Administrator to execute the acceptance thereof and return the executed Commitment to the Bank. The County Attorney and Bond Counsel are hereby authorized and directed to proceed (a) to prepare the necessary documents to consummate, and (b) to consummate the Laan on or before the Closing Date. Section 7. Authorization of Bond. Subject and pursuant to the provisions hereof and in accordance with the provisions of the Commitment, the issuance by the County of its Bond is hereby authorized. Section 8. Description of Bond. The Bond shall be dated its date of delivery, shall bear interest payable semiannually on May 1 and November 1 of each year commencing May 1, 2012, at the Rate of Interest, shall be payable annually on November 1 in the years 2012 through 2023, in amounts. mutually agreeable to the County and the Bank designed to amortize the principal of the Bond over the period from 2012 to 2023 to achieve level debt service to the extent reasonably possible (evidence of such mutual agreement shall be conclusively presumed upon the Bank's 5 acceptance of the Bond at closing), shall be subject to redemption prior to maturity; and shall have such other characteristics, as specified in the Bond and in the Commitment. The Principal Amount of the Bond shall be disbursed to the County by 2:00 p.m. on the Closing Date in immediately available funds. The proceeds of the Bond shall be used by the County solely for the refunding of the Refunded Bond and current payment of Project Costs or other costs incurred in the issuance of the Bond. Section 9. Approval of Form of Bond; Execution of Bond; Approval of Necessary Action. The text of the Bond shall be in substantially the form of Exhibit B hereto, with such omissions, insertions, and variations as may be necessary and desirable, and as may be authorized or permitted by the Resolution or required by the terms of the Commitment, and approved by Bond Counsel and the County Attorney, and the Chair and Clerk are hereby authorized to execute and deliver the Bond and to take such other actions and sign such other documents as shall be necessary to consummate the Loan. The delivery of the Bond to the Bank is hereby authorized. The Chair, the Clerk, the County Administrator, the Finance Director, and the County Attorney are each designated agents of the County in connection with the execution and delivery of the Bond and are authorized and empowered, collectively or individually, to take all action and steps to execute and deliver any and all instruments, documents or contracts on behalf of the County which are necessary or desirable in connection with the execution and delivery of the Bond to the Bank, including, but not limited to, modifications to the Bond to conform to or supplement the Commitment. Section 10. Covenants of the County; Funds and Accounts. (A) Limited Obligation. The payment of the principal of and interest on the Bond, and any other expenses or amounts due on the Bond or under the provisions of this resolution, shall be secured solely by a lien upon and pledge of the Pledged Revenues. The Pledged Revenues, in an amount to pay the principal of and interest on the Bond, in accordance with the terms and provisions of Exhibit B hereto, and any other expenses or amounts due on the Bond or under the provisions of this resolution, are hereby irrevocably pledged to the making of such payments of principal and interest, and any other expenses or amounts due on the Bond or under the provisions of this resolution, as the same matures and becomes due. (B) Not Generai Obligation. The Bond shall not be or constitute a general obligation or indebtedness of the County and the Bond shall not be or constitute a 'bond" of the County within the meaning of the Florida Constitution. Neither the Bank nor any successor owner of the Bond shall be entitled to compel the payment of the principal of or interest on the Bond or the making of any payments required hereunder or under the Bond from any moneys of the County other than the Pledged Revenues and, to the extent Pledged Revenues are insufficient to pay principal of and interest on the Bond in any fiscal year, Non-Ad Valorem Revenues as provided in Section 12 below. In particular, neither the Bank nor any successor owner of the Bond shall be entitled to compel the levy of ad valorem taxes by the County to pay the principal of and interest on the Bond or to make any payments required under the terms of the Resolution. Furthermore, the obligation of the County to repay the Bond in accordance with its 6 terms and to make the payments, if any, required under the Resolution shall not constitute a lien upon or pledge of any property of the County, but shall constitute a lien only upon the Pledged Revenues in the manner and to the extent provided herein. (C) Pledged Revenues. Until payment has been provided for as herein permitted, the payment of the principal of, premium, if any, and interest on the Bond shall be secured forthwith equally and ratably by an irrevocable lien on the Pledged Revenues and other moneys on deposit in the Revenue Fund, prior and superior to all other liens or encumbrances on such Pledged Revenues, and the County does hereby irrevocably pledge such Pledged Revenues to the payment of the principal of, premium, if any, and interest on the Bond, and for all other payments required or authorized hereunder. (D) Reserve Account Requirement. There is no Reserve Account Requirement with respect to the Bond. The Bank shall have no lien upon moneys deposited into the Reserve Account for the benefit of any other series of bonds or other debt obligations of the County. (E) Financial Statements. Not later than the earlier of 180 days following the end of each Fiscal Year, the County will provide the Bank a copy of the Comprehensive Annual Financial Report of the County and such other information regarding the levy and collection of the Pledged Revenues as the Bank may reasonably request in writing. (F) Annual Budget. The County will prepare its annual budget in accordance with the Act, and will provide to the Bank (i) a copy of its final annual budget for each fiscal year within 30 days of adoption thereof by the Board and (ii) such other public information as the Bank may reasonably request. (G) Revenue Fund. The County shall create a Revenue Fund into which the County shall deposit the Pledged Revenues when received and any Non-Ad Valorem Revenues as and when budgeted and appropriated in accordance with section 12 hereof, and shall use such amounts on deposit in the Revenue Fund to pay principal of, premium, if any, and interest on, the Bond as and when due. Monies on deposit in the Revenue Fund may be invested in Authorized Investments prior to their expenditure to pay debt service on the Bond or the release of such monies to the County. (At the end of each Fiscal Year, the County shall be entitled to withdraw from the Revenue Fund any amounts on deposit therein not required to pay debt service on the Bond when due.] (H) Project Fund. The County shall create a Project Fund into which the County shall deposit prooreds of the Bond as described in section 11 hereof, and use such funds to pay Project Costs. Disbursements from the Project Fund shall be made by the County in accordance with its internal procedures for the expenditure of funds on capital projects and in accordance with the Facility Use Agreement. Prior to disbursement, monies credited to the Project Fund may be invested in authorized Investments. (I) Operation of Funds and Accounts. The designation and establishment of the various funds and accounts in and by this Resolution shall not be construed to require the 7 establishment of any completely independent, self-balancing funds or accounts, as such terms are commonly defined and used in governmental accounting, but rather is intended solely to require a segregation of Pledged Revenues on the books and records of the County for the purposes -and to establish priorities for application of such Pledged Revenues as provided herein. Cash and Authorized Investments required to be accounted for in each of the funds and accounts established by this Resolution may be deposited in a single bank account; provided that standard accounting records are maintained to reflect control or restricted allocation of the moneys therein for the various purposes of such funds and accounts. The foregoing provisions notwithstanding, the funds and accounts created and established pursuant to this Resolution shall constitute trust funds for the purposes provided herein and shall be maintained on the books of the County as separate and distinct from all other funds and accounts of the County, in the manner provided in this Resolution. Any investment earnings received from Authorized Investments shall be credited to the fund or account to which the invested monies were credited at the time such earnings accrued. All moneys in the funds and accounts shall be invested in Authorized Investments or continuously secured in the same manner as deposits of County funds are required to be secured by the laws of the State. Section 11. Application of Bond Proceeds. The proceeds received from the sale of the Bond to the Bank shall be applied by the County in the following manner and order of priority, simultaneously with their delivery to the Bank, as follows: (A) The County shall pay all costs and expenses in connection with the preparation, issuance and delivery of the Bond as more particularly described in Exhibit C hereto on a prorate basis with proceeds of the Series 2011A Bond and the Series 2011B Bond. (B) $3,188,000 of the proceeds of the Series 2011A Bond shall be used to currently refund the County's Series 2003 Bond and $1,432,000 of the proceeds of the Series 2011B Bond shall be used to currently refund the County's Series 2003C Taxable Bond. (C) The balance of the proceeds of the Bond shall be deposited into a fund to be known as the Project Fund and used to pay Project Costs. Section 12. Covenant to Budget and Appropriate. The Bond shall not be secured by, or constitute a lien upon or pledge of an interest in the Project or upon any other property of or in the County, but shall constitute a lien only upon the Pledged Revenues in the manner provided herein. In the event the Pledged Revenues are insufficient to pay the principal of and interest on the Bond in any Fiscal Year, the County covenants and agrees to appropriate in its annual budget, by amendment, if necessary, from Non-Ad Valorem Revenues, amounts sufficient to provide for the timely payment of principal and interest for such Fiscal Year. Such covenant shall be cumulative and to the extent not paid shall continue until Pledged Revenues and Non- Ad Valorem Revenues in amounts sufficient to make all required payments hereunder when 8 due, shall have been budgeted and appropriated and actually paid. Notwithstanding the foregoing, the County does not covenant to maintain any services or programs now provided or maintained by the County which generate Non-Ad Valorem Revenues. Such covenant to budget and appropriate does not create any lien upon or pledge of Non-Ad Valorem Revenues until budgeted and appropriated and deposited into the Revenue Fund, nor does it preclude the County from pledging in the future any specific portion of its Non-Ad Valorem Revenues, nor does it require the County to levy and collect any particular Non-Ad Valorem Revenues, nor does it give the Bank or any successor owner of the Bond a prior claim on the Non-Ad Valorem Revenues as opposed to claims of general creditors of the County. Such covenant to budget and appropriate Non-Ad Valorem Revenues is subject in all respects to the payment of obligations of the County secured by a pledge of all or any specified portion of Non-Ad Valorem Revenues heretofore or hereafter issued (including the payment of debt service on bonds and other debt instruments); provided, however, this covenant to budget and appropriate for the purposes and in the manner stated herein shall have the effect of making available for the payment of the principal of and interest on the Bond, in the manner described herein, an amount of Non-Ad Valorem Revenues sufficient to make-up for the extent of any insufficiency in the Pledged Revenues, to meet the debt service requirement on the Bond, and of placing on the Board a positive duty to budget and appropriate, by amendment if necessary, amounts sufficient to meet its obligations hereunder; subject, however, in all respects to the restrictions of Section 129.03, Florida Statutes, which requires a balanced budget, and Section 125.07, Florida Statutes, which prohibits a board of county commissioners from expending or contracting for the expenditure in any fiscal year more than the amount budgeted in each fund's budget; and subject, further, to .the payment of the cost of maintaining services and programs which are for essential public purposes affecting the health, welfare and safety of the inhabitants of the County or which are Iegally mandated by applicable law. However, the covenant to budget and appropriate for the purposes and in the manner stated herein shall have the effect of making available for the payment of the Bond, in the manner described herein, Non-Ad Valorem Revenues, and placing on the County a positive duty to appropriate and budget, by amendment, if necessary, amounts sufficient to meet its obligations hereunder; subject, however, in all respects to the restrictions of Sections 129.03 and 125.07, Florida Statutes. The County agrees that its covenant and agreement to budget and appropriate Non-Ad Valorem Revenues shall be deemed entered into for the benefit of the Bank and this obligation may be enforced by a court of competent jurisdiction. While the Bond is outstanding and unpaid, the average of the Non-Ad Valorem Revenues (excluding amounts necessary for payment of services and programs affecting the health, safety and welfare of the County residents or payments mandated by applicable law) for the two most recent Fiscal Years of the County must always equal or exceed one and one-half times (1.5X) the annual debt service payments on all outstanding and proposed debt secured by all or any specified portion of Non-Ad Valorem Revenues. Section 13. Approval of Issuance Expenses. The fees associated with the issuance of the Bond set forth on .Exhibit C hereto are hereby approved and the Finance Director is authorized to pay such fees and any expenses in connection therewith at or subsequent to the time of issuance of the Bond upon submission of proper invoices. 9 Section 14. Further Assurances. The County shall grant such further assurances and provide such additional documents as may be required by the Bank from time to time in order to carry out the terms and conditions hereof and of the Commitment and otherwise comply with the express intention of the parties as set forth in the Resolution, the Commitment and in any related loan and security documents. Section 15. Default. The following shall be "Events of Default" under this Resolution, and the terms "Default" and "Events of Default" shall mean (except where the context clearly indicates otherwise), any one or more of the following events: A. failure by the County to make any payment of principal of or interest on the Bond within three (3) days of the applicable Payment Date; B. failure by the County to observe and perform any other covenant, condition or agreement on its part to be observed or performed hereunder for a period of fifteen (15) days after written notice of such failure shall have been delivered to the County by the Bank, unless the Bank shall agree in writing to an extension of such time prior to its expiration; C. the making of any warranty, representation or other statement by the County or by an officer or agent of the County hereunder or in any instrument furnished in compliance with or in reference to this Resolution which is false or misleading in any material adverse respect; D. the filing of a petition against the County under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect, if an order for relief is entered under such petition or such petition is not dismissed within sixty (60) days of such filing; E. the filing by the County of a voluntary petition in bankruptcy or seeking relief under any provision of any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect, or the consent by the County to the filing of any petition against it under such law; or F. the admission by the County of its insolvency or bankruptcy or its inability to pay its debts as they become due or that it is generally not paying its debts as such debts become due, or the County's becoming insolvent or bankrupt or making an assignment for the benefit of creditors, or the appointment by court order of a custodian (including without limitation a receiver, liquidator or trustee) of the County or any of its property taking possession thereof and such order remaining in effect or such possession continuing for more than sixty (60) days. Section 16. Remedies. The Bank may sue to protect and enforce any and all rights, including the right to specific performance, existing under the laws of the State of Florida or of the United States of America, or granted and contained hereunder, and to enforce and compel the performance of all duties required hereunder or by any applicable laws to be performed by the County, the Board or by any officer thereof, and may take all steps to enforce the covenants set forth herein to the full extent permitted or authorized by the laws of the State of Florida or 10 the United States of America, including,.with respect to a default under section 15 (A) hereof only, acceleration of all amounts outstanding under the Bond. Section 17. Governing Law. This- Resolution shall be governed by and construed in accordance with the laws of the State of Florida. Section 18. Repeal of Inconsistent Provisions. All resolutions or parts thereof, in conflict with this Resolution are hereby repealed to the extent of such conflict. Section 19. Severability. If any one or more of the covenants, agreements, or provisions of this resolution should be held contrary to any express provision of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements, or provisions shall be null and void and shall be deemed separate from the remaining covenants, agreements or provisions, and in no way affect the validity of all other provisions of this resolution or of the Bond delivered hereunder. Section 20. No Third Party Beneficiaries. Except as herein otherwise expressly provided, nothing in this resolution express or implied is intended or shall be construed to confer upon any person, firm or corporation or other entity, other than the County, the Bank or any subsequent owner of the Bond, any benefit of this resolution or any provisions hereof, this resolution and its provisions being intended to be and being for the sole and exclusive benefit of the County, the Bank and any subsequent owner of the Bond. Section 21. Amendment. This resolution may not be amended or repealed except with the prior written consent of the Bank. Section 22. Effective Date. This resolution shall take effect immediately upon its adoption. 11 Duly Passed and Adopted this day of September 2011, at a regular meeting duly called and held. ST. LUCIE COUNTY, FLORIDA (SEAL) By: Chairman, Board of County Commissioners ATTEST: By: Clerk of the Circuit Court, ex-officio Clerk of the Board of County Commissioners APPROVED AS TO FORM AND CORRECTNESS: By:: County Attorney 12 EXHIBTT B FORM OF BOND ST. LUCIE COUNTY, FLORIDA TOURIST DEVELOPMENT TAX [IMPROVEMENT AND] REFUNDING REVENUE BOND, [TAXABLE] SERIES 2011[A][B] RATE OF INTEREST MATURITY DATES DATE OF ISSUE [ %] November 1 in the Years Shown on Schedule 1 Hereto REGISTERED OWNER: JPMorgan Chase Bank, N.A. PRII~ICIl'AL AMOUNT: Million Hundred Thousand Dollars KNOW ALL MEN BY THESE PRESENTS, that St. Lucie County, Florida (the "County"), for value received, hereby promises to pay to the Registered Owner designated above, or registered assigns, solely from the special funds hereinafter. mentioned, on the Maturity Dates specified above, the portion of the principal balance as shown on Schedule 1 hereto, with .the final installment of principal and interest being payable, upon presentation and surrender hereof at the office of the County Finance Director, as Registrar and Paying Agent, on November 1, 20_, and to pay solely from such funds interest on the Principal Amount outstanding from time to time from the date of this Bond or from the most recent date to which interest has been paid, whichever is applicable, until payment of such Principal Amount, at the Rate of Interest set forth above, subject to adjustment as set forth on Schedule 2 hereto, such interest being payable semi-annually on each May 1 and November 1 commencing on May 1, 2012 (an "Interest Payment Date") until maturity, by check or draft mailed on or before the Interest Payment Date to the Registered Owner at such Owner's address as it appears on the registration books of the County kept by the Registrar; provided, that such payment may at the written request and expense, if any, of such Registered Owner be by wire transfer or other medium acceptable to the County and to such Registered Owner. The principal of and interest on this Bond are payable in lawful money of the United States of America. This Bond is issued to [(1) finance the costs of the acquisition and construction of certain capital improvements to the St. Lucie County Sports Complex including construction of a right field terrace, acquisition of a digital scoreboard, and acquisition of County capital equipment to be located or used at the St. Lucie County Sports Complex, together with such additions thereto, modifications thereof, or deletions therefrom as may be approved by the Board from time to time, and (2)] currently refund the .County's outstanding (Tourist Development Tax Revenue Bond, Series 2003, dated September 10, 2003,] [Improvement Revenue Note, Taxable Series 2003C, dated September 17, 2003,] under the authority of and in full compliance with the Constitution and Statutes of the State of Florida, including particularly Chapters 125 and 159, Florida Statutes, and other applicable provisions of law, and pursuant to the terms and conditions of Resolution No.11- 151, adopted by the County Commission of the County (the "Board") on September _, 2011 (the "Resolution"), to which reference should be made to ascertain those terms and conditions. This Bond is payable from and secured solely by a lien upon and pledge of the proceeds of (1) the fourth percent tourist development tax levied and collected within the County pursuant to the provisions of Section 125.0104(3)(1) Florida Statutes and County Ordinances Nos. 02-36, No. 03- 12 and 11-028, and (2) sixty seven percent (67%) of the fifth percent tourist development tax levied and collected within the County pursuant to the provisions of Section 125.0104(3)(n)1, Florida Statutes, and County Ordinances No. 02-36, No. 03-12 and 11-028, and from Non Ad Valorem Revenues to the extent Pledged Revenues are insufficient to pay principal of and interest on the Bond in any Fiscal Year, all in the manner as to the extent provided in, and subject to the terms and conditions of, the Resolution. The principal of this Bond may be prepaid in whole or in part on or after November 1, 2016, without premium or penalty, at the price of par, plus interest accrued to the date of prepayment. Prepayment prior to November 1, 2016 shall be subject to a Prepayment Breakage Cost, the provisions of which are set forth on Schedule 3 attached hereto. The principal of and interest on this Bond shall not constitute a general obligation or indebtedness of the County, and the Registered Owner shall never have the right to require or compel the levy of taxes on any property of or in the County for the payment of the principal of and interest on this Bond. The principal of and interest on this Bond shall not be secured by a lien upon the any property of or in the County, but shall be secured solely by a lien upon and pledge of the Pledged Revenues, in the manner provided in the Resolution. Reference is made to .the Resolution for the provisions relating to the security for payment of this Bond and the duties and obligations of the County hereunder. This Bond may be transferred or assigned by the Registered Owner to any financial institution or other accredited investor as defined in, in the manner provided in, and subject to the limitations contained in the Resolution. Otherwise, this Bond may not be transferred or assigned by the Registered Owner without the prior written consent of the County. It is hereby certified and recited that all acts, conditions and things required by the Constitution and laws of the State of Florida to be performed, to exist and to happen precedent to and in connection with the issuance of this Bond, have been performed, exist and have happened in regular and due form and time as so required. [Remainder of page left intentionally blank] 2 IN WITNESS WHEREOF, ST. Lucie County, Florida, has caused this Bond to be executed by its Chair or Vice-Chair, and countersigned and attested by the County Clerk, either manually or with their facsimile signatures, and its seal or a facsimile thereof to be affixed, impressed, imprinted, lithographed or reproduced hereon, all as of the Date of Issue. (SEAL) COUNTERSIGNED AND ATTESTED: By: County Clerk ST. LUCIE COUNTY, FLORIDA Chair 3 SCHEDULES TO ST, LUCIE COUNTY, FLORIDA TOURIST DEVELOPMENT TAX IMPROVEMENT AND REFUNDING REVENUE BOND, SERIES 2011A Schedule 1 Amortization Schedule Schedule 2 Adjustment to Rate of Interest Schedule 3 Prepayment Breakage Cost SCHEDULE 1 [PRINCIPAL AMORTIZATION SCHEDULE TOURIST DEVELOPMENT TAX IIvII'ROVEMENT AND REFUNDING REVENUE BOND, SERIES 2011A MATURITY DATE. MATURITY (NOVEMBER ~ AMOUNT ($) zo12 2013 2014 2015 2016 2017. 2018 2019 2020 2021 2022 2023 Total $ ~ [PRINCII'AL AMORTIZATION SCHEDULE TOURIST DEVELOPMENT TAX REFUNDING REVENUE BOND, TAXABLE SERIES 2011B MATURITY DATE MATURITY (NOVEMBER 1~ AMOUNT !$) 2012 $ 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 Total $ 1 SCHEDULE 1-1 SCHEDULE 2 ADJUSTMENTS TO RATE OF INTEREST IN CERTAIN EVENTS [For Series 2011A Bond only] In the event a Determination of Taxability shall have occurred, the rate of interest on this Bond shall be increased to the Taxable Rate, effective retroactively to the date on which the interest payable on this Bond is includable for federal income tax purposes in the gross income of the Registered Owner thereof. In addition, the Registered Owner of this Bond or any former Registered Owners of this $ond, as appropriate, shall be paid an amount equal to any additions to tax, interest and penalties, and any arrears in interest that are required to be paid to the United States of America by the Registered Owner or former Registered Owners of this Bond as a result of such Determination of Taxability. All such additional interest, additions to tax, penalties and interest shall be paid by the County within sixty (60) days following the Determination of Taxability and demand by the Registered Owner. A "Determination of Taxability" shall mean (i) the issuance by the Internal Revenue Service of a statutory notice of deficiency or other written notification which holds in effect that the interest payable on this Bond is includable for federal income tax purposes in the gross income of the Registered Owner thereof, which notice or notification is not contested by either the County or any Registered Owner of this Bond, or (ii) a determination by a court of competent jurisdiction that the interest payable on this Bond is includable for federal income tax purposes in the gross income of the Registered Owner thereof, which determination either is final and non-appealable or is not appealed within the requisite time period for appeal, or (iii) the admission in writing by the County to the effect that interest on this Bond is includable for federal income tax purposes in the gross income of the Registered Owner thereof. [For Series 2011A Bond only] In the alternative, in the event .that interest on this Bond during any period becomes partially taxable as a result of a Determination of Taxability applicable to less than all of this Bond, then the interest rate on this Bond shall be increased during such period by an amount equal to: (A-B) x C where: (A) "A" equals the Taxable Rate (expressed as a percentage); (B) "B" equals the interest rate on this Bond (expressed as a percentage); and (C) "C" equals the portion of this Bond the interest on which has become taxable as the result of such tax change (expressed as a decimal). In addition, the Registered Owner of this Bond or any former Registered Owner of this Bond, as appropriate, shall be paid an amount equal to any additions to tax, interest and penalties, and any arrears in interest that are required to be paid to the United States by the Registered Owner or former Registered Owners of this Bond as a result of such Determination of Taxability. All such additional interest, additions to tax, penalties and interest shall be paid by the County within sixty (60) days following the Determination of Taxability and demand by the Registered Owner. SCHEDULE 2-1 [For Series 2011A Bond only] "Prime Rate" shall mean a rate of interest equal to the announced prime commercial lending rate per annum of the Registered Owner. The Prime Rate is a reference rate for the information and use of the Registered Owner in establishing the actual rate to be charged to the County. The Prime Rate is purely discretionary and is not necessarily the lowest or best rate charged any customer. The Prime Rate shall be adjusted from time to time without notice or demand as of the effective date of any announced change thereof. (For Series 2011A Bond only] "Taxable Rate" means a rate equal to the Prime Rate times that percentage which after the Determination of Taxability will result in the same after-tax yield to the Registered Owner of this Bond as before said Determination of Taxability. [For Series 2011A Bond only] In the event that the maximum effective federal corporate tax rate (the "Maximum Corporate Tax Rate") during any period with respect to which interest shall be accruing on this Bond on atax-exempt basis, changes, from the Maximum Corporate Tax Rate then in effect, which causes a reduction in yield on this Bond, the interest rate on this Bond that is bearing interest on atax-exempt basis shall be adjusted to the product obtained by multiplying the interest rate then in effect on this Bond by a fraction equal to (1-A divided by 1- B), where A equals the Maximum Corporate Tax Rate in effect as of the date of adjustment and B equals the Maximum Corporate Tax Rate in effect immediately prior to the date of adjustment. So long as any portion of the principal amount of this Bond or interest thereon remains unpaid (a) if any law, rule, regulation or executive order is enacted or promulgated by any public body or governmental agency which changes the basis of taxation of interest on this Bond or causes a reduction in yield on this Bond (other than by reason of a change described above) to the Registered Owner or any former Registered Owners of this Bond, including without limitation the imposition of any excise tax or surcharge thereon or change in reserve or capital adequacy requirements, or (b) if, as result of any action or the failure to act by any public body or governmental agency, any payment is required to be made by, or any federal, state or local income tax deduction is denied to, the Registered Owner or any former Registered Owners of this Bond (other than by reason of a change described above or by reason of any action or failure to act on the part of the Registered Owner or any formers Registered Owner of this Bond), by reason of the ownership of this Bond, the County shall reimburse any such Registered Owner within five (5) days after receipt by the County of written demand for such payment, and, to the extent permitted by law, the County agrees to indemnify each such Registered Owner against any loss, cost, charge or expense with respect to any such change. The determination of the after-tax yield calculation shall be calculated by the Registered Owner, and such calculation, in the absence of manifest error, shall be binding on the County and the Registered Owner. Solely for the purposes of the reserve or capital adequacy requirements of sub-clause (a) above, no increased reserve or capital adequacy costs will be passed on to County if the ratings assigned to the Lender are downgraded by one or more of the public rating agencies; provided, however, if the Lender otherwise increases costs on the Bond due to a change in reserve or capital adequacy requirements, the Lender will provide the County at least ninety (90) days written notice prior to the imposition of such increased costs, and, in such event, the County SCHEDULE 2-2 will be permitted to redeem the Bond at par, plus accrued interest to the date of redemption upon providing the Lender at least five (5) Business Days prior written notice. Any amount payable to the Registered Owner hereunder which is not paid when due shall bear interest at the "Default Rate." For purposes of this Bond, the term "Default Rate" shall mean the higher of (1) JP Morgan Chase Bank's Prime Rate plus 4% and (2) the "Adjusted One-Month LIBOR Rate" (as hereinafter defined) plus 4%. "Adjusted One-Month LIBOR Rate" shall mean the sum of 2.50% plus the quotient of (a) the LIBOR Rate on the immediately preceding business day for dollar deposits with a maturity equal to one-month, divided by (b) one minus the "Reserve Requirement" applicable to dollar deposits in the London interbank market with a maturity equal to one month. The Default Rate shall be determined as of the day immediately following the date on which any amount payable to the Registered Owner hereunder is not paid when due. This Bond shall bear interest at the Interest Rate; provided, however, that if any principal of or interest on this Bond is not paid when due, this Bond and any amount so in default shall bear interest at the Default Rate until such default is cured. Anything provided herein or in this Bond to the contrary notwithstanding, in no event shalt this Bond bear interest in excess of the Maximum Rate. In the event the Interest Rate exceeds the Maximum Rate, this Bond shall continue to bear interest at the Maximum Rate regardless of the reduction of the Interest Rate to a rate less than the Maximum Rate until such time as interest shall accrue on this Bond in an amount (the "Excess Interest") that would have accrued thereon had the Interest Rate not been limited by the Maximum Rate. Upon the Maturity Date, in consideration for the limitation of the rate of interest otherwise payable on this Bond, the County shall pay to the Registered Owner of this Bond a fee equal to the amount of the unpaid amount of all unpaid deferred Excess Interest. "Maximum Rate" means fifteen percent (15%). The Registered Owner shall give the County written notice at least ninety (90) days prior to the effective date of any interest rate adjustment provided for hereunder. Notwithstanding anything herein or in the Resolution to the contrary, upon receipt of such written notice, the County shall have the right to call this Bond at par, without prepayment penalty or premium, at any time prior to the effective date of the interest rate adjustment. SCHEDULE 2-2 SCHEDULE 3 PREPAYMENT BREAKAGE COST This Bond shall be subject to redemption prior to November 1, 2016 in the event that the County pays to the Registered Owner the following redemption premium. For purposes of the foregoing, the term "redemption premium" shall mean the sum of the differences between {a) each scheduled interest payment which would have been made on the redeemed amount if such redemption had not occurred and (b} the corresponding fixed-rate interest payment which would be received under an interest rate swap which the Registered Owner shall be deemed to have entered into as of .the date of such redemption (the "Replacement Swap") covering its payment obligations under an interest rate swap which the Registered Owner shall be deemed to have entered into when the redeemed amount was originally funded, with each such difference discounted to a present value as of the date of redemption using the fixed interest rate of the Replacement Swap as the applicable discount rate. The County acknowledges that the Registered Owner might not fund or hedge its fixed-rate loan portfolio or any redemption thereof on a loan-by-loan basis at all times, and agrees that the foregoing is a reasonable and appropriate method of calculating liquidated damages for any redemption irrespective of whether any of the foregoing hedging transactions have in fact occurred or occurred precisely as stated with respect to the loan evidenced by this Bond. All calculations and determinations by the Registered Owner of the amounts payable pursuant to the preceding provisions or of any element thereof, if made in accordance with its then standard procedures for so calculating or determining such amounts, shall be conclusive absent manifest arithmetic error. SCHEDULE 3-1 EXHIBIT C ISSUANCE FEES AND EXPENSES TOURIST DEVELOPMENT TAX IIvIl'ROVEMENT AND REFUNDING REVENUE BOND, SERIES 2011A Financial Advisor $ Expenses Not to exceed $ Bond Counsel $ Expenses Not to exceed $ Bank Counsel $ Expenses .Not to exceed $ f AGENDA REQUEST TO: BOARD OF COUNTY COMMISSIONERS SUBMITTED BY(DEPT): SUBJECT: County Attorney ITEM NO. V DATE: September 27, 2011 REGULAR [XX] PUBLIC HEARING [] CONSENT [] PRESENTED BY: Daniel S. McIntyre County Attorney Second Amendment to August 1, 2003 Facilities Use Agreement - New York Mets; 2011 Expansion Program BACKGROUND: FUNDS AVAILABLE: See attached memorandum PREVIOUS ACTION: RECOMMENDATION: Staff recommendsthatthegoardapprovetheSecondAmendment to the August 1, 2003 Facilities Use Agreement and authorize the Chairman to sign the Second Amendment. COMMISSION ACTION: (kj APPROVED [ ]DENIED [ ]OTHER: Approved 5.0 CONCURRENCE: Faye W. Outlaw, MPA County Administrator Review and Approvals County Attorney: ///~~`..~~~/// Management & Budget Purchasing: Daniel S. McIntyre Originating Dept. Public Works Dir: County Eng.: Finance: (Check for copy only, if applicable) Eff. 5/96 r' INTER-OFFICE MEMORANDUM ST. LUCIE COUNTY, FLORIDA TO: Board of County Commissioners FROM: Daniel S. McIntyre, County Attorney C.A. NO.: 11-984 DATE: September 20, 2011 SUBJECT: Second Amendment to August 1, 2003 Facilities Use Agreement -New York Mets; 2011 Expansion Program •**********s***s********s**s*****s*********ss************************s********«*~* BACKGROUND: In 1984, the County's voters approved the levy of a two cent (2C) tourist development tax to provide a sports stadium. in 1986, the County entered into agreements with the New York Mets and a St. Louis developer (Thomas J. White) to build a stadium and related facilities for the Mets. Mr. White donated 100 acres of land and built the original stadium and facilities which had an estimated value of eleven million dollars ($11,000,000.00) at the time the facilities were built. These facilities were eventually transferred to the County. The Mets agreed to use the facilities (named the St. Lucie County Sports Complex) as their Major League Spring training facility for a period offifteen (15) years from the date the facilities were complete. The first springtraining game was held in the stadium in March of 1988. In 2003, the County and the Mets entered into a new agreement wherein the Mets agreed to continue to use the St. Lucie County Sports Complex as the Mets Major League Spring Training and Florida State League (minor league) facilities for a period of fifteen (15) years until 2018. As part of this new agreement, the County and the Mets cooperated on the design and construction of renovations and improvements to the Stadium. The Mets retained the design architect and served as construction manager for the renovation improvements. The Mets also assisted in funding the renovation improvements. The County agreed to levy a fourth cent (4`h C) and fifth cent (5"' C) tourist development tax for a period of fifteen (15) years until January 31, 2018. All of the fourth cent (4`h C) and sixty-even (67%) percent of the fifth cent (5`h t) revenues were pledged to pay debt service on bonds issued to assist in funding the renovation improvements. In 2009, the Governors Office of Tourism, Trade and Economic Development (OTTED), the Florida Sports Foundation and the Florida Grapefruit League Association prepared a document named "The State of Florida's Major League Baseball Spring Training Strategic Plan." A summary of the study indicated: - Florida's Spring Training created $753 million in annual sales with $385 million of it from out-of-town visitors Annual Spring Training attendance in 2010 of 1.4 million people (15 teams) 9,205 jobs directly associated with Spring Training (out of state visitors accounted for 7,007 jobs) Proposed 2011 Improvementsc Financine The Mets have submitted a list of proposed improvements for 2011 is as follows: A. Rieht Field Terrace and Dieital Scoreboard -Estimated Cost - $2,500,000 Proposed construction of a right field terrace (similar to the existing left field terrace) with a 12,000 square foot shell under the terrace for future expansion along with installation of a new digital scoreboard. B. Fan Shop Expansion -Estimated Cost - $100,000 - $150,000 Expansion and renovation of the existing Fan Shop C. Capital Equipment Replacement -Estimated Cost - $250,000 The proposed financing program would require the County to extend the fourth cent (4"'C) and fifth cent (5"'C) tourist development tax for a period of five years. A public hearing on an ordinance (Ordinance No. 011-028) which, if adopted, would extend the tourist tax through December 31, 2023 is scheduled to be heard at the Board's September 27, 2011 special meeting. The County's financial advisor has also indicated that the County will need to provide a covenant to budget and appropriate non ad valorem revenues as a backup pledge. The proposed financing program for the 2011 Improvements will also be on the September 27 agenda. Second Amendment to Facilities Use Aereement Attached to this memorandum is a copy of a proposed Second Amendment to the August 1, 2003 Facilities Use Agreement. Under the terms of the Second Amendment, the Mets agree to extend their use of the County's Sports Complex for an additional period of five years commencing on January 1, 2019 and ending on December 31, 2023. The County agrees to provide funding for the design and construction of the Right Field Terrace, Digital Scoreboard and Fan Shop Expansion as set out above. The Mets will manage the design and construction of the 2011 Improvements. The Amendment also includes a provision that would allow the Mets to terminate the agreement without paying a premium and with paying the full amount of the debt service on the 2011 debt through 2016 in the event the number of spring training teams on the east coast of Florida, including Orlando, drop below 4 (including the Mets). In 2017 and later years, the Mets would pay the following percentage of debt service payments through the remaining amortization period on a semiannual basis through 2023: 2017 - 75% 2018 - 65% 2019 - 55% 2020 - 45% 2021 - 35% 2022 - 25% 2023 - 0% A copy of a schedule setting out the County's potential exposure for payment of debt service is attached as prepared by the County's financial Advisor. If the Mets terminate the agreement without cause (other than if the number of spring training teams on the east coast of Florida drops below 4), the Mets would pay the unamortized principal balance of the remaining debt other than the $500,000 used for equipment and the Fan Shop expansion. As indicated above, the estimated cost of the right field terrace and the digital scoreboard is approximately $2,SOO,OOO.Of the remaining $500,000, $250,000 would be allocated for purchase „„ of County capital equipment as outlined in Exhibit P and $250,000 would be allocated tot e expansion of the Fan Shop. If the cost of constructing the Fan Shop expansion is less than $250,000, the excess funds will be allocated to the County for purchase of additional equipment as set out in Exhibit "P". RECOMMENDATION/CONCLUSION: Staff recommends that the Board approve the Second Amendment to the August 1, 2033 Facilities Use Agreement and authorize the Chairman to sign the Second Amendment. Daniel S. Mc County Atto DSM/caf Attachment SFS 9/26/11 draft clean SECOND AMENDMENT TO ST. LUCIE SPORTS COMPLEX FACILITIES USE AGREEMENT THIS AMENDMENT ("Amendment"), made and entered into in triplicate as of 2011, by and between ST. LUCIE COUNTY, a political subdivision of the State of Florida ("County"), and STERLING FACILITY SERVICES, L.L.C., a New York limited liability company ("SFS"). WITNESSETH: WHEREAS, as of August 1, 2003, the County and SFS entered into a Facilities Use Agreement for the St. Lucie County Sports Complex which Agreement was amended as of October 21, 2003 {as amended, the "FUA"); and WHEREAS, SFS and the County desire to renovate the Sports Complex beyond the improvements contemplated in the FUA (the "2011 Improvements" defined below}; and WHEREAS, in consideration of the County agreeing to fund the 2011 Improvements and to grant SFS an additional five-year extension option and the other consideration herein contained, SFS desires to exercise its first option to extend the FUA, through December 31, 2023, with additional option periods, in accordance with the provisions hereinafter contained; WHEREAS, the parties desire to enter into an amendment to the FUA on the terms herein contained. NOW, THEREFORE, inconsideration of the mutua{ covenants and promises herein contained, IT IS AGREED AS FOLLOWS: 1. AMENDMENT OF SECTION 2161 OF THE FUA The FUA is hereby amended by deleting Section 2(B) thereof and replacing it with the following: "B. Option Terms: At the end of the Initial Term, SFS shall have three options (the "Options") to extend this Agreement, each for an additional five (5) year period, (each, an "Option Term," if exercised, together with the initial Term, the "Term"), upon the same terms as are herein set forth. The first Option is hereby exercised by SFS, and the first Option Term shall commence on January 1, 2019 and end on December 31, 2023. The second Option may be exercised by SFS giving its written notification to the County on or before June 30, 2023 and, if exercised, the second Option Term shall commence on January 1, 2024 and end on December 31, 2028. If the second Option is exercised, the third Option may be exercised by SFS giving its written notification to the County on or before June 30, 2028 and, if exercised, the third Option Term shall commence on January 1, 2029 and end on December 31, 2033." -1- 2. .AMENDMENT OF SECTION 31A1 OF THE FUA The FUA is hereby amended by deleting the last paragraph of Section 3(A) thereof {as reflected in the First Amendment to St. Lucie Sports Complex Facilities Use Agreement) and replacing it with the following: "In addition, the County will contribute such additional amounts toward Additional Improvements to be made in years 2005 through 2023, as provided in Section 5(K) of this Agreement " 3. AMENDMENT OF SECTION 3(Cl OF THE FUA The FUA is hereby amended by deleting the last paragraph of Section 3(C) thereof and replacing it with the following: "If the total consideration to be provided by the Naming Rights sponsor under the Naming Rights Agreement exceeds $2,250,000, then any excess (the "Excess Naming Rights Revenues") shall be added or devoted to the Additional.lmprovements Budget (as such term is defined below in Section 5(K)), subject to the proviso set forth in the definition of "Additional Improvements Budget" with respect to the years 2019-2023." 4. AMENDMENT OF SECTION 51K) OF THE FUA The FUA is hereby amended by deleting Section 5(K) thereof and replacing it with the following: "K. 1. The County intends to issue its Tourist Development Tax Revenue Bond, Series 2011A (the Series 2011A Bond) and its Taxable Tourist Development Tax Revenue Bond, Series 20118 (the "Series 20116 Bond" and,/ together with the Series 2011A Bond, the "2011 Improvement Bonds ). A .portion of the proceeds of the Series 2011A Bond will be used to finance the 2011 Improvements. The County and SFS agree that the 2011 Improvement Bonds will be secured by a pledge by the County of and first lien upon the Tourist Tax defined below, which lien shall be senior in priority to any lien in favor of SFS arising hereunder. In addition to the Initial Term Improvements and the 2011 Improvements, as agreed upon by the parties in good faith cooperation, County shall fund, to the extent funds are available as set forth below, during the calendar years 2005 thru 2023 certain additional improvements to the Sports Complex (the "Additional Improvements"). The Additional Improvements to be constructed and the schedule for the construction of the Additional Improvements shall be determined so as to provide material benefit to SFS to be enjoyed by SFS during the Initial Term and the first Option Term. The Total Cost of the Work related to the Additional Improvements shall be paid from the following funds (which sum is herein referred to as the "Additional Improvements Budget"): the Additional County Contributions as herein defined, plus the Excess Initial Term Improvement Budget Funds, plus the Excess Naming Rights Revenues (provided that, for the years 2019-2023, the Excess Naming Rights Revenues shall only be added to the Additional Improvements Budget to the extent the County does not need such funds to pay the debt service on the 2011 Improvement Bonds), plus the Excess 2011 Improvement Budget Funds (each as defined in this Agreement, as amended). The term "Additional County Contributions" means (i) funding in the amount of $160,423.00 in each year from 2005 through 2011, which funding shall be added to the Additional Improvements Budget by the County promptly following the Florida State League baseball season in each such year, and (ii) funding in the amount of the Remaining Amount in each year from -2- 2012 through 2023, which funding shall be added to the Additional Improvements Budget on November 1 of each such year. The County shall provide the Additional County Contributions and the other funds for the Additional Improvements Budget, such funds to be used by SFS to pay for Additional Improvements mutually acceptable to SFS and County, acting in good faith cooperation, and for other purposes set forth herein. Notwithstanding anything herein to the contrary, the provision of the Additional County Contributions by the County to the Additional Improvements Budget is subject to the existence of a Remaining Amount after full and timely payment of debt requirements on the 2011 Improvement Bonds from the sum set-forth in clause (x) of the definition of "Remaining Amount" below, and the County shall make full and timely payment of debt requirements on the 2011 Improvement Bonds. Funds in the Additional Improvements Budget not expended in any given year will be rolled over to the following year to be used toward Additional Improvements mutually acceptable to SFS and County, acting in good faith cooperation. SFS shall. have the right to request that the County provide monies from the Additional Improvements Budget, and the County will promptly honor such requests and deliver such funds to SFS or such other person or entity according to instructions from SFS for use as contemplated under this Agreement {including to pay for the Total Cost of the Work related to the Additional improvements, and to pay for Total Cost of the Work in connection with the 2011 Improvements to the extent such Total Cost of the Work exceeds the 2011 Improvements Budget, as addressed below in Section 11). To the extent that the Remaining Amount exceeds the Capped Amount (prior to application of the proviso at the. end of the definition of "Remaining Amount"), the excess funding shall be used by the County solely for capital expenditures for the direct benefit of the Sports Complex and for no other purpose. In accordance with Treasury Regulation Section 1.141-4(c)(3)(v), it is the express official intent and expectation of the County that any capital improvement provided to the Sports Complex using Excess Naming Rights Revenues under the Agreement during the period this Agreement is in effect shall be the result of expenditures made by the Naming Rights sponsor out of its. own funds pursuant to the provisions of this Agreement, and as such shall be allocated to the Naming Rights sponsor's equity funds rather than funds of the County. Since the Naming Rights sponsor is expected to make such payments from its own funds for these capital expenditures at the time the expenditures are incurred, it is expected by the County that all such private payments for capital expenditures for improvements and capital repairs and renovations will be made not later than 18 months after the later of the date the expenditure is paid or the date the improvements are placed in service. 2. Additional Definitions The "Remaining Amount" as used herein means the amount by which (x) the sum of (a) the SFS Contributions for the year in question plus (b) the total of all consideration to be provided by the sponsor of the Naming Rights for the year in question under the Naming Rights Agreement plus (c) the Naming Rights Shortfall Payments for the year in question plus {d) an amount equal to the sum of 1009'0 of the proceeds of the fourth (4`h) cent and 679'0 of the proceeds of the fifth (5"') cent of tourist development tax levied by the County (the "Tourist Tax") pursuant to Ordinances No. 02-35, No. 03-12 and No. 11-028 of St. Lucie County, Florida (the '?ourist Tax Ordinances")during the twelve month period ending on November 1 of the year in question, exceeds (y) the amount of debt service payments paid by the County on the 2011 Improvement Bonds during the twelve month period ending on November 1 of the year in question (excluding debt service payments to the extent attributable to $505,000 of principal and costs of issuance in connection with the Series 2011A Bond), provided that the Remaining Amount in any year shall not exceed the Capped Amount. -3- The "Capped Amount" as used herein means, (I) in 2012, $160,243.00, and (II) in each year after 2012 when $160,243.00 exceeded the Remaining Amount in the immediately preceding year, the Capped Amount frdm the immediately preceding year increased by the amount by which $160,243.00 exceeded the Remaining Amount in the immediately preceding year, and (III) in each year after 2012 when the Remaining Amount exceeded $160,243.00 in the immediately preceding year, the Capped Amount from the immediately preceding year decreased by the amount by which the Remaining Amount exceeded $160,243.00 in the immediately preceding year, provided that the Capped Amount shall under no circumstances be less than $160,243.00." S. AMENDMENT OF SECTION 9 OF THE FUA The FUA is hereby amended by adding the following as the last sentence of Section 9 of the FUA: "In considering whether to approve of proposed prices for New York Mets Major League Spring Training tickets to the renovated right field seating and concessions area of the Stadium constructed as part of the 2011 Improvements, the County may consider, among other things, whether such prices are likely to generate less revenue than was generated from the sale of tickets to the same area of the Stadium prior to the 20111mprovements, based upon average revenue per game generated from such area during the 2011 New York Mets Major League Spring Training season." 6. AMENDMENT OF SECTION 11 OF THE FUA The FUA is hereby amended by deleting Section 11 thereof (with the heading "Minimum Games")and replacing it with the following: "11. 20111MPROVEMENTS A. 20111MPROVEMENTS -BUDGET. The County shall provide $2,750,000.00 of funding (the 2011 Improvements Budget")for the design and construction of certain improvements to the Sports/Complex (the "2011 «„ Improvements")which shall include the improvements described on Exhibit K hereto, it eing understood that not more than $250,000.00 of the 2011 Improvements Budget may be used for the design and construction of the Fan Shop Expansion referenced on Exhibit K. (Such $250,000.00 amount, reduced by the portion (if any) of the 2011 Improvements Budget in excess of $2,500,000 that is used for the Total Cost of the Work in connection with the 2011 Improvements other than the Fan Shop Expansion, is referred to herein as the Fan Shop Sub-Budget .) Nothing in this Agreement shall obligate the County to provide funding for the 2011 Improvements'in excess of the 2011 Improvements Budget; provided, however, that to the extent the Total Cost of the Work in connection with the 2011 Improvements exceeds the 2011 Improvements Budget or the Total Cost of the Work in connection with the Fan Shop Expansion exceeds the Fan Shop Sub-Budget, SFS may use and apply funds in the Additional Improvements Budget (as such term is defined in Section 5(K-) to pay for the Total Cost of the Work. The 2011 Improvements Budget shall be used to fund the 20111mprovementsnnly and- for no other purpose (except as provided herein). -4- 2011 IMPROVEMENTS -PLANS. 1. SFS shall engage an architect reasonably satisfactory to County (the "Architect" referred to in this Section 11). The Architect shall be responsible for (1) developing a conceptual plan and general specifications (the Conceptual Plans referred to in this Section 11) for the 2011 Improvements; (2) developing preliminaryrplanssnd specifications for the 2011 Improvements; (3) preparing working drawings and requests for bids; (4) obtaining all permits, other than building permits, needed to construct the 2011 Improvements; (5) assisting SFS in evaluating the qualifications of potential contractors; (6) providing contract administration; and (7) performing construction inspections as needed to provide certified as-built drawings after the 2011 Improvements are constructed (the "Architect's Work" referred to in this Section 11). Without limiting the foregoing, the County hereby approves of Gensler as a satisfactory Architect. SFS shall enter into a contract (the Architect s Contract" referred to in this Section 11) with the Architect which Architect's Contract shall, inter alia, contain the terms and conditions set forth in Exhibit "L" hereto. The County shall be named as a third party beneficiary in the Architect's Contract. The County shall, upon request, enter into a joinder to the Architect's Contract substantially similar to the joinder entered into by the County dated October 21, 2003 in connection with the Construction Contract dated as of August 1, 2003 between SFS and Rodda Construction, Inc. Without limiting the foregoing, the Architect's Contract shall require the Architect to procure policies of insurance that relate to the Architect's Work, with terms, limits, coverages and specifications at least as favorable for SFS as those reflected in Exhibit "L", and should provide that Architect will not receive payment for any portion of the Architect's Work or any other amounts due until the date that is at least five (5) days after County has paid the amount due to SF5 as set forth in Section 11(C)(9)(b) below. SFS shall have. the right to refuse to enter into any Architect's Contract with terms that are not commercially reasonable as determined by SFS. County agrees that the Architect shall not be considered an agent of SFS for any purpose and that the Architect shall be solely responsible for the Architect's Work, and that the County will look solely to the Architect, and in no event to SFS, with respect to the performance of the Architect's Work and any damages or losses which may arise from or out of any acts or omissions of the Architect. Within twenty (20) days following the date of approval of this Agreement by the Board of County Commissioners, SFS shall cause Architect to furnish to County the Conceptual Plans for the 2011 Improvements (provided that if Conceptual Plans for the Fan Shop Expansion are not completed at such time, such Conceptual Plans may be provided later). To the extent practicable, SF5 shall also cause the Architect to provide the County with an estimate of the cost of each proposed capital improvement. County shall have a period of ten (10) business days from delivery of the Conceptual Plans within which to review and to disapprove of the Conceptual Plans, in writing. County shall have no right to disapprove of the Conceptual Plans except to the extent that the improvements described therein are materially inconsistent with the description of the 2011 Improvements set forth on Exhibit "K" hereto or to the extent the Conceptual Plans reflect estimated costs in excess of the 2011 Improvements Budget. Subject to the foregoing, County shall not unreasonably withhold its consent to any Conceptual Plans. If County disapproves of the Conceptual Plans, County shall express the grounds for its disapproval in reasonable detail. If County shall not disapprove within such ten (10) business day period, the Conceptual Plans shall be deemed approved. 2. As soon as is reasonably practicable following the approval of the Conceptual Plans, SFS shall cause Architect to prepare and deliver to County and SFS preliminary plans and specifications for the 2011 Improvements in accordance with the approved Conceptual Plans (the "Preliminary Plans" referred to in this Section 11). County and SFS shall have a period often (10) days -5- within which to review and to approve or disapprove of the Preliminary Plans in writing. County shall have no right to disapprove of the Preliminary Plans except to the extent the Preliminary Plans shall be materially inconsistent with the Conceptual Plans. If County or SFS disapprove of the Preliminary Plans, it or they shall express the grounds for its disapproval in reasonable detail. If County or SFS shall not respond with disapproval within such ten (10) day period, the Preliminary Plans shall be deemed approved. 3. As soon as is reasonably practicable following the approval of the Preliminary Plans, 5FS shall cause the Architect to prepare working drawings for the 2011 Improvements (or such of the 2011 Improvements as shall be designated by 5FS), in accordance with the approved Preliminary Plans and to deliver same to County and SFS (the Final Plans referred to in this Section 11). County and SFS shall have a period often (10) days from receipt of the completed Final .Plans to review and approve or disapprove of the Final Plans in writing. County shall have no right to disapprove of the Final Plans except to the extent such Final Plans shall be materially inconsistent with the Preliminary Plans. If County or SFS shall disapprove of the Final Plans, it or they shall express the grounds for its disapproval in writing and in reasonable detail. If neither County nor SFS disapprove within such ten (10) day period, the Final Plans shall be deemed approved. Once approved, the Final Pans shall be incorporated into this Agreement as Exhibit "M". 4. SFS shall, through a competitive bidding or proposal process (consisting of the solicitation of bids ar proposals from at least three contractors), engage a contractor (the "Contractor" referred to in this Section 11) for the construction of the 2011 Improvements in accordance with the Final Plans (the "Work" referred to in this Section 11). SFS shall have the right to prequalify contractors and to refuse to engage any contractor upon terms that are not commercially reasonable as determined by SFS or who is not determined by SFS to have submitted the best qualified bid or proposal. SFS's selection of any Contractor and the terms of the agreement between SFS and the Contractor (the "Contract" referred to in this Section 12) shall be subject to the approval of the County, which approval shall not be unreasonably withheld. 5. The Contract shall, inter alia, include the terms and conditions set forth in Exhibit "N" hereto and shall include each of the following requirements: (i) the furnishing of a public construction bond in a form consistent with Section 255.05, Florida Statutes, with the County named as co-obligee, and with terms acceptable to SFS; (ii) retainage in an amount acceptable to SFS for the Work, until the Completion of the Work (including a retainage of 103'0 of the total value of the construction contract); (iii) payment by the Contractor of liquidated damages equal to One Thousand Dollars ($1,000.00) for each day from and after the Required Completion Date (if and as that term or its equivalent is defined in the Contract) until the actual date of Completion; (iv) a requirement that the Contractor perform and achieve Completion of the Work for a fixed stipulated sum (the "Fixed Contract Price" referred to in this Section 11), by no later than the Required Completion Date; (v) the furnishing of an "installation floater" insurance policy or such other policy of insurance covering goods in transit and while the Work is being performed, with terms, limits, coverages and specifications acceptable to SFS (and the furnishing by any subcontractors of policies of insurance that relate to the Work naming SFS, Club and the County as additional insureds, with terms, limits, coverages and specifications acceptable to SFS); (vi) at SFS's election, the provision on behalf of 5FS of an Owner's Contractor Protective policy of insurance, including extensions for products and completed operations coverage and similar extended coverage at least through Completion (as defined herein) of the Work, or another policy of insurance acceptable to 5FS, with SFS as a named insured; and (vii) Contractor must agree that -6- it will not receive payment for any portion of the Contractor's Work or any other amounts due until the date that is at least five (5) days after County has paid the amount due to SFS as set forth in Section 11(C)(9)(c) below. The County shall be named as a third party beneficiary in the Contract between the Contractor and SFS. The County shall, upon request, enter into a joinder to the Contract between the Contractor and SFS substantially similar to the joinder entered into by the County dated October 21, 2003 in connection with the Construction Contract dated as of August i, 2003 between SFS and Rodda Construction, Inc: 6. SFS agrees to include the following provisions (or substantively equivalent provisions) in the Contract: (a) Punchlist Procedures. Punchlist procedures to render the Work complete, satisfactory and acceptable are established as follows: There shall be the development of a single checklist of items required to render complete, satisfactory, and. acceptable, the construction services. Within twenty (20) days of Substantial Completion of the construction services purchased as defined in the Contrail, Contractor shall schedule a walkthrough with SFS ("Initial Walkthrough" a/k/a "IW"). The purpose of the IW is to develop a checklist ("Checklist") of items to be performed by the Contractor, based upon observations made between the Contractor and SFS during the IW. The IW is to occur within twenty (20) days of Substantial Completion of the Work as defined by the Contract, again predicated upon the Contractor's timely initiation of a request for the IW. No later than forty (40) calendar days after reaching Substantial Completion, Contractor shall again initiate and request a second walkthrough of the Project with SFS. The purpose of this second walkthrough is to identify which items remain to be performed from the IW Checklist and for the purpose of developing a single and Final Punchlist. The intent of this section is for SFS and the Contractor to cooperate to develop a single Final Punchlist to be completed no later than sixty (60) calendar days from the date of reaching Substantial Completion of the construction services purchase as defined in the Contract. The single Final Punchlist shall be delivered no later than five (5) calendar days after the Punchlist has been developed and reviewed in accordance-with this section. If the Construction services provided in this Contract relate to more than one building or structure, or involves a multi-phased project, the single Final Punchlist is required to render complete, satisfactory, and acceptable all the construction services for each building, structure, or phase of the Project and is due within the time periods set forth in this section. In no event may the Contractor request payment of final retainage until the Contractor considers the Final Punchlist to be 100% complete. Contractor agrees to complete the Final Punchlist items and the Final Contract Completion Date must be thirty (30) calendar days after the delivery date of the Final Punchlist. The failure to include any corrective work or pending items not yet completed on the list does not alter the responsibility of the Contractor to complete all the construction services purchased pursuant to this Contract. -7- Contractor acknowledges and agrees that no item contained on the Final Punchlist shall be considered a warranty item until such time as (a) the Final Punchlist is 1009'0 complete, and (b) SFS has been able to operate or utilize the affected Punchlist item for an additional period of fifteen (15) days. Contractor acknowledges and agrees that SFS may, at its option, during performance of the Work and prior to Substantial Completion, issue lists of identified non-conforming or corrective work for the Contractor to address. The intent of any such generated list prior to Substantial Completion is to attempt to streamline the Punchlist process upon achieving Substantial Completion, and to allow for the Contractor to address needed areas of corrective work as they may be observed by SFS during performance of the Work. Contractor acknowledges and agrees that SFS shall determine whether an item on the Final Punchlist is completed and shall calculate the amount of payment to withhold if an item is incomplete, with SFS having the right to withhold the greater of 1509'0 of the value of the item on the Final Punchlist that is incomplete or the amount of the retainage under this Contract. Contractor acknowledges and agrees that in calculating the amount of payment-.that may be withheld by SFS as to any Final Punchlist item for which a good faith basis exists to determine that it is incomplete, SFS may, in calculating the amount equal to 1509'0 of the value of the item (if SFS decides to withhold such amount rather than the amount of the retainage under this Contract), include within such percentage calculation its total costs for completing such item of work, including its administrative costs as well as costs to address other services needed or areas of work which may be affected in order to achieve full completion of the Final Punchlist item. Such percentage shall in no event relate to the schedule of value associated with such Work activity, but rather total costs are based upon the value (i.e. cost) of completing such Work activity based upon market conditions at the time of Final Punchlist completion. (b) Deduction of Retainaee Procedures. Contractor may request a reduction of retainage to from ten (109'0) percent of the total value of the Contract to five (59'0) percent after fifty (509'0) percent completion of the Work. The term "Fifty Percent Completion" shall be defined as follows, in lieu of any other definition: "Fifty Percent Completion" of the Work is defined as that point in time where 509'0 of the overall value of Work items incorporated and which will remain in place subsequent to final completion of the Work have been completed, based upon the schedule of values contained in the Contract. As such, and by way of example, the value of Contractors mobilization, general conditions, supervision or like items which do not involve permanent incorporation of Work do not apply to the determination of "Fifty Percent Completion" of the Work for purposes of establishing entitlement to a reduction of retainage. (c) Definition of Substantial Completion. For purposes of this Contract, and for compliance of those procedures, duties and obligations, the term Substantial Completion shall be as follows, in lieu of any other definition: -8- i~ ~(~ ~~~ Substantial Completion is defined as that point where SFS is able to enjoy beneficial occupancy of the Work and where the Work has '_^~ achieved that level of completion such that SFS is able to utilize the ~~C~~ ~ ~~Q,V~'f~jh~ entire Project for its intended purposes, including but not limited to thr. completion of all specified systems and items relating to life safety and regulatory use, with the exception of incidental and incomplete items except where a lack of completion of such incidental or incomplete items of Work will adversely affect the complete operation of other areas of the Work (d) Subcontractors. In the event Contractor requires the services of any contractor or professional associate in connection with the Work to be performed under this Contract, the Contractor shall secure the written approval of SFS before engaging such contractor or professional associate. A subcontractor who receives payment must remit undisputed payment due to those subcontractors and suppliers within 7 days after subcontractor's receipt of payment. 7. County agrees that the Contractor shall not be considered an agent of SFS for any purpose and shall be solely responsible for the Contractor's Work, and that the County will look solely to the Contractor, and in no event to SFS, with respect to the performance of the Contractor's Work and any damages or losses which may arise from or out of any acts or omissions of the Contractor. 8. SFS shall have the right to purchase general construction liability insurance or other construction-related insurance acceptable to SFS, with terms, coverages, specifications and limits as determined by SFS as being reasonable in its sole discretion. The cost of such insurance shall be included in the Total Cost of the Work (as defined in this Section 11). County shall be an additional insured on such insurance policy, if any is purchased by SFS. 9. The fees and costs of the Contractor, the Architect and the remainder of the Total Cost of the Work shall be paid by the County in accordance with the procedures set forth in Section 11(C)(9), below, out of the 2011 Improvements Budget. The term "Total Cost of the Work" referred to in this Section 11 shall mean the sum of (i) the fees and expenses of the Architect in connection with all stages of the Architect's Work hereunder, including without limitation the Architect's consultants' fees and expenses, which fees and expenses shall not exceed;$230,OOO.OOand _. all fees and expenses related to the obtaining of permits needed to construct the 2011 Improvements, plus (ii) the Fixed Contract Price, plus (iii) the fees and expenses of any consultants engaged by SFS, [which fees and expenses shall not exceed $120,OOO.OO,~plus (iv) any other costs, expenses or liabilities incurred by SFS as a consequence of SFS's engagement of the Contractor, Architect or other consultants hereunder, including but not limited to SFS's attorneys' fees in connection therewith, plus (v) the costs of all permits required for the Work, plus (vi) the premium cost of all insurance, including without limitation comprehensive general liability insurance, general construction liability insurance, Owner's Contractor Protective insurance, products and completed operations or other extended insurance, or other insurance acceptable to SFS, as SFS may elect to obtain, whether directly or through another person or entity acting on SFS's behalf, as a consequence of SFS's engagement of the Architect and Contractor hereunder (referred to in this Section 11 as the "Additional Exposure Liability Insurance Coverage Insurance Premiums"). The Total Cost of the Work shall be subject to increase only as a consequence of Authorized Change Orders (as defined in this Section 11), to the extent such Authorized -9- "Substantial Completion" is defined as that point where SFS is able to enjoy beneficial occupancy of the Work and where the Work has achieved that level of completion such that SFS is able to utilize the entire Project for its intended purposes, including but not limited to the completion of afl specified systems and items relating to life safety and regulatory use, with the exception of incidental and incomplete items except where a lack of completion of such incidental or incomplete items of Work will adversely affect the complete operation of other areas of the Work (d) Subcontractors. In the event Contractor requires the services of any contractor or professional associate in connection with the Work, to be performed under this. Contract, the Contractor shall secure the written approval of SFS before engaging such contractor or professional associate. A subcontractor who receives payment must remit undisputed payment due to those subcontractors and suppliers within 7 days after subcontractor's receipt of payment. 7. County agrees that the Contractor shall not be considered an agent of SFS for any purpose and shall be solely responsible for the Contractor's Work, and that-the County will look solely to the Contractor, and in no event to SFS, with respect to the performance of the Contractor's Work and any damages or losses which may arise from or out of any acts or omissions of the Contractor. 8. SFS shall have the right to purchase general construction liability insurance or other construction-related insurance acceptable to SFS, with terms, coverages, specifications and limits as determined by SFS as being reasonable in its sole discretion. The cost of such insurance shall be included in the Total Cost of the Work (as defined in this Section 11). County shall be an additional insured on such insurance policy, if any is purchased by SFS. 9. The fees and costs of the Contractor, the Architect and the remainder of the Total Cost of the Work shall be paid by the County in accordance with the procedures set forth in Section 11(C)(9), below, out of the 2011 Improvements Budget. The term "Total Cost of the Work" referred to in this Section 11 shall mean the sum of (i) the fees and expenses of the Architect in connection with all stages of the Architect's Work hereunder, including without limitation the Architect's consultants' fees and expenses, which fees and expenses shall not exceed $342,000.00, and all fees and expenses related to the obtaining of permits needed to construct the 2011 Improvements, plus (ii) the Fixed Contract Price, plus (iii) the fees and. expenses of any consultants engaged by SFS, [which fees and expenses shall not exceed $ ,] plus (iv) any other costs, expenses or liabilities incurred by SFS as a consequence of SFS's engagement of the Contractor, Architect or other consultants hereunder, including but not limited to SFS's attorneys' fees in connection therewith, plus (v) the costs of all permits required for the Work, plus (vi) the premium cost of all insurance, including without limitation comprehensive general liability insurance, general construction liability insurance, Owner's Contractor Protective insurance, products and completed operations or other extended insurance, or other insurance acceptable to SFS, as SFS may elect to obtain, whether directly or through another person or entity acting on SFS's behalf, as a consequence of SFS's engagement of the Architect and Contractor hereunder (referred to in this Section 11 as the "Additional Exposure liability Insurance Coverage Insurance Premiums"). The Total Cost of the Work shall be subject to increase only as a consequence of Authorized Change Orders (as defined in this Section 11j, to the extent such Authorized -9- Change Orders actually increase the Total Cost of the Work, provided, however, that the County's obligations shall be limited to the 2011 Improvements Budget and (to the extent applicable under Sections 5(K) and 11(A)) the providing of monies from the Additional Improvements Budget. The Total Cost of the Work shall not include any other costs or fees whatsoever, including, without limitation, fees for construction, coordination, supervision or for review and approval of plans and specifications or proposed Change Orders by SFS or County, except as otherwise specifically set forth in this Agreement. C. 2011 IMPROVEMENT FACILITIES -CONSTRUCTION . 1. Promptly following the execution of the Contract and the issuance of all required approvals and permits, SFS shall cause the Contractor to commence the Work and to diligently and continuously pursue the Work to Completion. The term "Completion" as used in this Section 11 shall mean the completion of the Work, as evidenced by the issuance of a temporary or final certificate of occupancy or completion, as applicable, and the completion of all "punch-list" items. 2. County wil! cooperate in good faith to assist Architect and Contractor in obtaining all permits required for the construction of the Work from all applicable governmental authorities. 3. There shall be no change to the Final Plans, except pursuant to an Authorized Change Order (as such term is defined below). SFS shall have the right to request changes in the Work. As used in this Section 11, an "Authorized Change Order" shall mean a written instrument initiated and prepared by SFS and signed by County if required herein (or deemed approved asset forth herein), SFS and the Architect stating their agreement upon all of the following: (i) the agreed change in the Work; and (ii) the extent of the adjustment in the Total Cost of the Work, if any. County shall have a period often (10) business days following receipt of a request to approve a Change Order within which to review same. If County fails to respond within such ten (10) business day period after the receipt of the proposed Change Order, then such proposed Change Order shall be deemed approved provided, however, that in no event shall the County be obligated to pay any costs associated with Change Orders in the event such costs cause the Total Cost of the Work to exceed the 2011 Improvements Budget and the monies available in the Additional Improvements Budget (to the extent applicable under Sections 5(K) and 11(A)) without a separate written consent from the County identifying the additional funds to be provided. Such separate written consent shall not be deemed to have been provided by the County's failure to object to a Change Order. County shall not unreasonably withhold its consent to any proposed Change Order. County has the right to suggest Change Orders to SFS, and SFS agrees to consider each County request for a Change Order in good faith, provided that any Change Order proposed by County shall not have the effect of increasing the Total Cost of the Work, and to initiate an Authorized Change Order as set forth in this paragraph if SFS determines that such a Change Order is appropriate. Changes in the Total Cost of the Work due to an Authorized Change Order shall be limited to the actual net increase in the cost included in the definition of the Total Cost of the Work. 4. SFS and the County shall have the right to monitor the construction process of the 2011 Improvements at all times, provided that County shall not give direction, whether verbally or in writing or otherwise, to any Contractor, Architect or consultant engaged by SFS, except in an emergency situation. Without limiting the foregoing, the County hereby consents to the engagement by SFS of Sterling Project Development ("SPD") as a consultant, provided that SPD shall not charge any fee for its services, but SPD shall be reimbursed in full from the 2011 Improvements Budget -10- for all of its out-of-pocket expenses in connection with the provision of such services, including but not limited to the costs of travel, transportation, lodging and meals for SPD personnel in connection with the project and SPD's reasonable fees, costs and expenses related to the work of outside counsel in connection with the engagement of the Architect and the Contractor. 5. In the event of any contractual dispute between the parties hereto that (i) occurs before Completion (as defined in this Section 11) of the 2011 Improvements, and (ii) relates to the preparation and/or approval of the Conceptual Plans, Preliminary Plans, Final Plans or any Change Order for any Phase of the Work, SFS and County shall attempt in good faith to agree to the resolution of the disagreement and/or the curative measures, if any, that are required to be undertaken, and will submit the dispute to non-binding mediation in an effort to resolve the dispute if the parties are unable to reach a resolution without outside intervention. If the parties are unable to resolve such dispute through non-binding mediation, then the dispute shall promptly be resolved by arbitration pursuant to Section 38 in the Agreement on an expedited basis at the request of either party. 6. It shall be the responsibility of Architect and Contractor, as may be appropriate, to coordinate activities with interested governmental agencies in connection with the construction process. 7. The Contractor shall be responsible for the construction of the 2011 Improvements in accordance with the approved Final Plans and for obtaining all. certificates of occupancy and completion so that the improvements can be used. (a) The 2011 Improvement Schedule, which shall be Exhibit "O" hereto, shall show: (i) The anticipated time of commencement and completion of each of the various operations to be performed under this contract; and, (ii) The sequence and inter-relationship of each of these operations with the others and with those of other related contracts; and, (iii) The estimated time required for fabrication or delivery, or both, of all materials and equipment for the Work. (b) SFS shall not be responsible for the funding of the Work, nor shall it be obligated to pay for any cost overruns related to the planning, design or construction of the 2011. Improvements, whether due to hidden or unforeseen conditions or otherwise. County shall not be responsible for such cost overruns, except for providing monies from the Additional Improvements Budget to the extent applicable under Sections 5(K) and 11(A), without a separate written consent from the County identifying the additional funds to be provided. (c) The 2011 Improvement Schedule shall be revised by SFS as and when needed. SFS shall provide the County with written notice in the event that any revision as to the 2011 Improvement Schedule changes the Required Completion Date (if and as that term or its equivalent is defined in the Contract). -11- 8. The County shat{ issue the 2011 Improvement Bonds such that the portion of the proceeds of the 2011 Improvement Bonds that is not used to pay off the County's Tourist Development Tax Revenue Bond, Series 2003 and the County's Tourist Development Tax Taxable Revenue Bond, Series 2003C or to pay the costs of issuance of the 2011 Improvement Bonds equals $3,000,000. Such $3,000,000 in proceeds shall initially be distributed as follows: (a) $2,750,000 to the 2011 Improvements Budget, and (b) $250,000 to the County (the "County Share of Proceeds", together with the additional amounts added thereto pursuant to Section 11(C)(9)(e)(ii)). The County-Share of Proceeds shall be used by the County for the following purposes, in each case so as to provide material benefit to SFS to be enjoyed by SFS during the Initial Term and the first Option Term and for no other purpose: (i) to purchase certain equipment, as described on Exhibit "P" hereto (the "2011 Equipment"), to be used solely in connection with and for the direct benefit of the Sports Complex, and (ii) to pay for improvements to the Sports Complex. Promptly after execution of the Second Amendment to St. Lucie Sports Complex Facilities Use Agreement, but in any event not later than October 1, 2011, the County shall deposit the entire amount of the funds that comprise the 2011 Improvements Budget in an interest bearing account, in the name of the County, designated (and referred to in this Section 11) as the "2011 Improvement Account," and all interest thereon shall be added to the 2011 Improvements Budget. The County will issue bonds in an amount sufficient to generate $2,750,000 of funding for the 2011 Improvements Budget, as provided for in this Section 11. Notwithstanding any provision in the Second Amendment to the contrary, the County shall have no obligation to provide funds for the 2011 Improvements Budget in excess of the $2,750,000 provided with the proceeds of the County's 2011 Improvement Bonds without the express written consent of the County identifying the additional funds provided, provided that the foregoing shall not be construed to limit the use of monies from the Additional Improvements Budget toward the 2011 Improvements in accordance with Sections 5(K) and 11(A) to the extent applicable. 9. County shall disburse funds from the 2011 Improvement Account, as follows, provided that in no event shall County be responsible for disbursing funds in excess of the 2011 Improvements Budget for the Total Cost of the Work (except for funds from the Additional Improvements Budget, to the extent the Total Cost of the Work in connection with the 2011 Improvements exceeds the 2011 Improvements Budget): (a) Within twenty (20) business days following SFS's delivery to County of an invoice for the Additional Exposure Liability Coverage Insurance Premiums, County shall pay to SFS the entire amount of such invoice; (b) .Within twenty (20) business days following SFS's delivery to County of an invoice from the Architect with respect to the Architect's Work, County shall pay to SFS the full amount of such invoice, which payment SFS will then forward to Architect within five (5) days of SFS's receipt thereof from County; (c) Within twenty (20) business days following SFS's delivery to County of an invoice from the Contractor (which invoice shall reflect the applicable retainage), accompanied by the Required Documents (as such term is defined below), County shall pay to SFS the full amount of such invoice, which payment SFS will then forward to Contractor within five (5) days of SFS's receipt thereof from County. The term "Required Documents" referred to in this Section 21 means: (i) an affidavit from the Contractor certifying that the invoice is true and correct; (ii) a partial lien waiver from the Contractor for the full amount of the current invoice and partial lien waivers from all -12- subcontractors, materialmen and others who have filed Notices to Owner with respect to all Work through the date of the prior invoice; (iii) a certificate from Architect stating that the portion of the Work described in such invoice has been completed in accordance with the Final Plans; and (iv) in connection with the final disbursement to the Contractor (A) a final lien waiver from the Contractor and from all subcontractors, materialmen and others who have filed Notices to Owner and (B) a final certificate of occupancy or a certificate of completion, as may be applicable; (d) Within twenty (20) business days following SFS's delivery to County of any invoices from any consultants engaged by SFS and/or with respect to any other costs, expenses or liabilities incurred.by SFS pursuant to or as described in Section 11(8)(9) of this Agreement, County shall pay to SFS the full amount of such invoices; and (e) Upon Completion: (i) to the extent that $2,500,000.00 exceeds the Total Cost of the Work in connection with the 2011 Improvements other than the Fan Shop Expansion (with the amount of such excess hereafter referred to as the "Excess 2011 Improvement Budget Funds"), the Excess 20111mprovement Budget Funds shall be added or devoted to the Additional Improvements Budget (as such term is defined in Section 5(K)); and (ii) to the extent that the Fan Shop Sub-Budget portion of the 2011 Improvements Budget exceeds the Total Cost of the Work in connection with the Fan Shop Expansion, the excess shall be added to the County Share of Proceeds described above in Section 11(C)(8).,, 7. AMENDMENT OF SECTION 15(61 OF THE FUA The FUA is hereby amended by deleting the chart that appears in Section 15(8)(1) thereof and replacing it with the following: "TERM ANNUAL PAYMENT First Six (6) years $50,000.00 (2003-2008) Next Five (5) years $55,000.00 (2009-2013) Final Five (5) years $60,000.00 (2014-2018) First Option Term $65,000.00 (2019-2023) Second Option Term (if any) $70,000.00 (2024-2028) -13- Third Option Term (if any) $75,000.00" (2029-2033) 8. AMENDMENT OF SECTION 19 OF THE FUA The FUA is hereby amended by deleting paragraph (a) and subparagraph (b)(i) within the second paragraph of Section 19 of the FUA and replacing it with the following: "(a) A series of semi-annual payments tied to the County's schedule of debt service payments in connection with the 2011 Improvement Bonds (excluding $505,000 of principal and casts of issuance in connection with the Series 2011A Bond), as reflected on the 2011 Debt Service Schedule attached as Exhibit "J" hereto. Such payments, referred to herein as the "Debt Service Payments," shall be made by SFS to the County on each "Period Ending" date referenced in the first column of Exhibit "1" hereto that follows the effective date of the termination of this Agreement. The amount of the Debt Service Payment due on each such. post-termination "Period Ending" date shall be an amount equal to (x) the "Total Debt Service Payment" in the last column of Exhibit "J" hereto corresponding to the "Period Ending" date in question, multiplied by.(y) the Debt Service Percentage. The "Debt Service Percentage" as used in this Section 19 or Section 25, as applicable, shall be 100°Yo, provided that if the number of the Major League Baseball Clubs who play spring training home games within the Florida East Coast (as defined below) or in the city of Orlando, Florida drops below four (4) clubs (including the New York Mets Major League Baseball Club) through no fault of SFS, then instead the "Debt Service Percentage" shall be: (i) 1009'o if the Agreement is terminated effective as of December 31 of any year from 2012 through 2016 (or, for purposes of Section 25, assigned on or before December 31, 2016); (ii) 75% if the Agreement is terminated effective as of December 31, 2017 (or, for purposes of Section 25, assigned during the 2017 calendar year); (iii) 65% if the Agreement is terminated effective as of December 31, 2018 (or, for purposes of Section 25, assigned during the 2018 calendar year); (iv) 55°Yo if the Agreement is terminated effective as of December 31, 2019 (or, for purposes of Section 25, assigned during the 2019 calendar year); (v) 45% if the Agreement is terminated effective as of December 31, 2020 (or, for purposes of Section 25, assigned during the 2020 calendar year); (vi) 359'o if the Agreement is terminated effective as of December 31, 2021(or, for purposes of Section 25, assigned during the 2021 calendar year); or (vii) 25°Yo if the Agreement is terminated effective as of December 31, 2022 (or, for purposes of Section 25, assigned during the 2022 calendar year); and in any event there shall be no Debt Service Payments due if this Agreement is terminated under this second paragraph of Section 19 (or assigned under Section 25) after December 31, 2022. As used herein, "Florida East Coast" means the following counties in the State of Florida: Brevard, Indian River, St. Lucie, Martin, Palm Beach and Broward; and (b) (i) Subject to subparagraph (b)(ii) below and the last sentence of this Section 19(b)(i), one lump-sum payment equal to the full amount of the Premium (as defined below), which payment shall be paid not later than five (5) business days following the effective date of the termination of the Agreement. The "Premium" as used herein shall be (i) one million dollars ($1,000,000) if such termination occurs as of or before December 31, 2007, (ii) nine hundred thousand dollars ($900,000) if such termination occurs as of December 31, 2008, {iii) eight hundred thousand dollars ($800,000) if such termination occurs as of December 31, 2009, (iv) seven hundred thousand dollars ($700,000) if such termination occurs as of December 31, 2010, (v) six hundred thousand dollars ($600,000) if such termination occurs as of December 31, 2011, (vi) five hundred thousand dollars ($500,000) if such termination occurs as of December 31, 2019, (vii) four hundred thousand dollars -14- ($400,000) if such termination occurs as of December 31, 2020, (viii) one hundred thousand dollars ($100,000) if such termination occurs as of December 31, 2021, and (ix) zero dollars ($0) if such termination occurs after December 31, 2021. Notwithstanding the foregoing, if the number of the Major League Baseball Clubs who play spring training home games within the Florida East Coast (as defined above) or in the city of Orlando, Florida drops below four (4) clubs (including the New York Mets Major league Baseball Club) through no fault of SFS, the "Premium" shall be zero dollars ($0), regardless of the date of termination of this Agreement:' 9. AMENDMENT OF SECTION 25 OF-THE FUA The FUA is hereby amended by deleting the third and fourth sentences of Section 25 of the FUA and replacing them with the following four sentences: "Subject to the approval of the County, which approval may not be unreasonably withheld, conditioned or delayed, SFS may assign all of its rights and obligations pursuant to this Agreement to an owner or operator of another Major League Baseball club, provided that SFS shall pay to County a series ofsemi-annual payments tied to the County's schedule of debt service payments in connection with the 2011 Improvement Bonds (excluding $505,000 of principal and costs of issuance in connection with the Series 2011A Bond), as reflected on the 2011 Debt Service Schedule attached as Exhibit "J" hereto. Such payments, referred to herein as the "Debt Service Payments," shall be made by SFS to the County on each "Period Ending" date referenced in the first column of Exhibit "J" hereto that follows the effective date of the assignment of this Agreement pursuant to the immediately preceding sentence of this Section 25. The amount of the Debt Service Payment due on each such post-assignment "Period Ending" date shall be an amount equal to (x) the "Total Debt Service Payment" in the last column of Exhibit "J" hereto corresponding to the "Period Ending" date in question, multiplied by (y) the Debt Service Percentage (as defined in Section 19 above). Upon SFS's assignment of this Agreement and all of its rights and obligations hereunder, all of SFS's duties and obligations under this Agreement shall terminate-and cease to be of any further force or effect as of the effective date of the assignment and the County shall look solely to the assignee for performance of the duties and obligations under this Agreement thereafter (provided that the Debt Service Payments and Premium due under Section 19,of this Agreement and'the Debt Service Payments due under Section 25 of this Agreement shall be $0 in the event of any subsequent termination or assignment of this Agreement)." 10. AMENDMENT OF SECTION 27 OF THE FUA The FUA is hereby amended by deleting Section 27 thereof and replacing it with the following: "27. AMENDMENTS. The provisions of this Agreement may not be amended, supplemented, waived or changed orally, but only in a writing signed by the parties hereto and making specific reference to this Agreement. In addition, this Agreement may not be amended without MLB Approval (as that term is defined in Section 39 of this Agreement)." 11. AMENDMENT OF SECTION 39 OF THE FUA The FUA is hereby amended by deleting Section 39 thereof and replacing it with the following: -15- "39. SUBSERVIENCE. A. Notwithstanding any other provision of this Agreement, this Agreement and any rights or exclusivities granted by SFS hereunder shall in all respects be subordinate to the MLB Rules and Regulations and the Minor League Rules and Regulations. The issuance, entering into, amendment or implementation of any of the MLB Rules and Regulations or the Minor League Rules and Regulations shall be at no cost or liability to any MLB Entity or to any individual or entity related thereto. The territory within which County is granted rights is limited to, and nothing herein shall be construed as conferring on County rights in areas outside of, the Spring Training territory of the New York Mets as established and amended from time to time. No rights, exclusivities or obligations involving the Internet or any interactive or on-line media (as defined by the applicable MLB Entities) are conferred by this Agreement, except as are specifically approved in writing by the applicable MLB Entities. B. The following defined terms apply to this Section 39: "Major League Baseball" or "MLB" means, depending on the context, any or all of (a) the BOC, each other MLB Entity and/or all boards and committees thereof, including, without limitation, Executive Council and the Ownership Committee, and/or (b) the Major League Clubs acting collectively. "Major League Baseball Club" or "Major League Club" means any professional baseball club that is entitled to the benefits, and bound by the terms, of the Major League Constitution. "Major League Constitution" means the Major league Constitution adopted. by the Major League Clubs (which amended and superseded the Major League Agreement dated January 1,1975, the Agreement in re Major Leagues Central Fund dated as of December 8,1983, as amended, and the respective constitutions of the former American and National Leagues of Professional Baseball Clubs) as the same may be amended, supplemented or otherwise modified from time to time in the manner provided therein and all replacement or successor agreements that may in the future be entered into by the Major League Clubs. "MLB Approval" means, with respect to the Major League Baseball Clubs, the Commissioner, the BOC or any other MLB Entity, any approval, consent or no-objection letter required to be obtained from such Person(s) pursuant to the MLB Rules and Regulations (as exercised in the sole and absolute discretion of such Person(s)). "MLB Entity" means each of the BOC, Major League Baseball Enterprises, Inc., Major League Baseball Properties, Inc., The MLB Network, LLC, MLB Advanced Media, L.P., and/or any of their respective present or future affiliates, assigns or successors. "MLB Governing Documents" means the following documents as in effect from time to time and any amendments, supplements or other modifications thereto and all replacement or successor documents thereto that may in the future be entered into: (a) the Major League Constitution, (b) the Basic Agreement between the Major League Baseball Clubs and the Major League Baseball Players Association, (c) the Professional Baseball Agreement between the BOC, on behalf of itself and the Major League Baseball Clubs, and the National Association of Professional Baseball Leagues, on behalf of the National Association (the "Professional Baseball Agreement"), (d) the Major League Rules (and all -16- attachments thereto), (e) the Interactive Media Rights Agreement, effective as of January 20, 2000, by and among the BOC, the various Major League Baseball Clubs, MLB Advanced Media, L.P. and various other MLB Entities and (f) each agenty agreement and operating guidelines among the Major League Baseball Clubs and any MLB Entity, including, without limitation, the Amended and Restated Agency Agreement, effective as of November 1, 2006, by and among Major League Baseball Properties, Inc., the various Major League Baseball Clubs and the BOC (and the Operating Guidelines related thereto). "MLB Rules and Regulations" means (a) the MLB Governing Documents, (b) any present or future agreements or arrangements entered into by, or on behalf of, the BOC, any other MLB Entity or the Major League Baseball Clubs acting collectively, including, without limitation, agreements or arrangements entered into pursuant to the MLB Governing Documents, and (c) the present and future mandates, rules, regulations, policies, practices, bulletins, by-laws, directives or guidelines issued or adopted by, or behalf of, the Commissioner, the BOC or any other MLB Entity as in effect from time to time. "BOC" means the Office of the Commissioner of Baseball, an unincorporated association comprised of the Major League Clubs who are party to the Major League Constitution, and any successor organization thereto. "Commissioner" means the Commissioner of Baseball as elected under the Major League Constitution or, in the absence of a Commissioner, any Person succeeding to the powers and duties of the Commissioner pursuant to the Major League Constitution. "Minor League Rules and Regulations" means (a) the National Association Agreement and the Constitution and Bylaws of each Minor League as in effect from time to time and any amendments, supplements or other modifications thereto and all replacement or successor documents thereto that may in the future be entered into, and (b) the present and future mandates, rules, regulations, policies, practices, bulletins, by-laws, directives or guidelines issued or adopted by, or behalf of, each Minor League or the National Association as in effect from time to time. "National Association" shall have the meaning ascribed to it in the Professional Baseball Agreement. "National Association Agreement" means the Constitution and By-Laws of the National Association. "Minor League" shall mean each Minor League (as that term is defined in the Major League Rules) of which a Minor League Club (as that term is defined in the Major League Rules) that plays its home games at the Sports Complex is a member or to which such a Minor League Club otherwise belongs. "Person" means any individual, corporation, partnership, association, limited liability company, joint venture, trust, estate, joint stock company or other similar organization, government or political subdivision thereof, or any other person or entity, including, without limitation, the Major League Baseball Clubs, the Commissioner, the BOC, and each other MLB Entity." -17- 12. ADDITION OF EXHIBITS TO THE FUA Exhibit J to the FUA shall be deleted and replaced with Exhibit J attached to this Amendment. Exhibits K through P attached to this Amendment shall be added to the FUA as Exhibits K through P thereto. 13. Except as amended herein, the remaining terms and conditions of the FUA shall remain in full force and effect. 14. SFS REVERSION RIGHT If County does not fully and timely fund the 2011 improvements Budget as contemplated in Section 6 of this Amendment (amending Section 11 of the FUA), then SFS shall have the right, by the giving of written notice, to void and nullify this Amendment (except as it amends Sections 27 and 39 of the FUA, asset forth in Sections 10 and 11 of this Amendment, and except for this Section 14 of this Amendment) and to restore the FUA to the terms that existed in the absence of this Amendment immediately prior to the execution and delivery hereof (except that the amendments to Sections 27 and 39 of the FUA, as set forth in Sections 10 and 11 of this Amendment, and this Section 14 of this Amendment, shall remain in full force and effect). IN WITNESS WHEREOF, the parties have executed and delivered this Amendment as of the date first set forth above, as follows: ATTEST: BOARD OF COUNTY COMMISSIONERS ST. WCIE COUNTY, FLORIDA Deputy Clerk BY: Chairman Date signed: APPROVED AS TO FORM AND CORRECTNE55: BY: County Attorney WITNESSES: STERLING FACILITY SERVICES, L.L.C. a New York limited liability company BY: Name• Title: Date signed: -18- STATE OF FLORIDA COUNTY OF ST. LUCIE The foregoing instrument was acknowledged before me this day of 2011, by . as of the St. Lucie County Board of County Commissioners. Notary Public, State of Florida My Commission Expires: Personally known OR Produced Identification STATE OF FLORIDA COUNTY OF ST. LUCIE The foregoing instrument was acknowledged before me this day of 2011 by as of STERLING FACILITY SERVICES, L.L.C., a New York limited liability company. Notary Public, State of Florida My Commission Expires: Personally known OR Produced Identification -19- TABLE OF EXHIBITS Exhibit J 2011 Debt Service Schedule Exhibit K List of 2011 Improvements Exhibit L Architect's Contract Requirements (2011 Improvements} Exhibit M Final Plans and Specifications (2011 Improvements} Exhibit N Contractor's Contract Requirements (20111mprovements) Exhibit O 2011 Improvement Schedule Exhibit P List of 2011 Equipment TABLE OF EXHIBITS ACKNOWLEDGED AND APPROVED: BOARD OF COUNTY COMMISSIONERS ST. LUCIE COUNTY STERLING FACILITY SERVICES, L.L.C. By: By; Print Name: Print Name: Title: Title: -20- EXHIBIT 1 2011 DEBT SERVICE SCHEDULE Period Series 20118 Debt Series 2011A Debt Series 2011A Debt Total Debt Endin¢ Service (refinanced 2003C) Service (refinanced 2003) Service ("New Money") Service Payment 5/1/2012 $30,378.14 $47,713.55 $31,940.50 $110,032.19 11/1/2012 $120,915.00 $265,703.50 $216,940.50 $603,559.00 5/1/2013 $24,228.75 $37,846.00 $29,591.00 $91,665.75 11/1/2013 $129,228.75 $277,846.00 $214,591.00 $621,665.75 5/1/2014 $22,365.00 $34,798.00 $27,241.50 $84,404.50 11/1/2014 $127,365.00 $279,798.00 $217,241.50 $624,404.50 5/1/2015 $20,501.25 $31,686.50 $24,828.50 $77,016.25 11/1/2015 $130,501.25 $281,686.50 $219,828.50 $632,016.25 5/1/2016 $18,548.75 $28,511.50 $22,352.00 $69,412.25 11/1/2016 $133,548.75 $283,511.50 $222,352.00 $639,412.25 5/1/2017 $16,507.50 $25,273.00 $19,812.00 $61,592.50 11/1/2017 $136,507.50 $290,273.00 $224,812.00 $651,592.50 5/1/2018 $14,377.50 $21,907.50 $17,208.50 $53,493.50 11/1/2018 $139,377.50 $291,907.50 $227,208.50 $658,493.50 5/1/2019 $12,158.75 $18,478.50 $14,541.50 $45,178.75 11/1/2019 $142,158.75 $293,478.50 $229,541.50 $665,178.75 5/1/2020 $9,851.25 $14,986.00 $11,811.00 $36,648.25 11/1/2020 $144,851.25 $299,986.00 $236,811.00 $681,648.25 5/I/2021 $7,455.00 $11,366.50 $8,953.50 $27,775.00 11/1/2021 $142,455.00 $301,366.50 $238,953.50 $682,775.00 5/1/2022. $5,058.75 $7,683.50 $6,032.50 $18,774.75 11/1/2022 $145,058.75 $307,683.50 $241,032.50 $693,774.75 5/1/2023 $2,573.75 $3,873.50 $3,048.00 $9,495.25 11/1/2023 $147,573.75 $308,873.50 $243,048.00 $699,495.25 The column above headed "Series 2011A Debt Service ("New Money")" intentionally shows the debt service payments for only $2,515,000.00 of the principal of the Series 2011A Bond. The balance -21- of the debt service payments for the Series 2011A Bond, corresponding to an additional $500,000 of "New Money" and $5,000 of costs of issuance related thereto, is intentionally omitted from this Exhibit J. County acknowledges that SFS is relying upon preliminary debt service schedules provided by the County in the creation of this Exhibit J, and that such reliance is reasonable. If the final debt service schedules for the 2011 Improvement Bonds (which the County shall provide to SFS promptly upon their creation) differ from the preliminary debt service schedules, then, at the election of SFS, this Exhibit J shall be revised to reflect the final debt service schedules for the 20111mprovement Bonds (subject to the first paragraph below the table in this Exhibit J), utilizing the same approach as was used to create this Exhibit J based upon the preliminary debt service schedules. EXHIBIT "J" ACKNOWLEDGED AND APPROVED: BOARD OF COUNTY COMMISSIONERS ST. LUCIE COUNTY STERLING FACILITY SERVICES, L.L.C. By: Print Name: By: Print Name: Title: Title: -22- EXHIBIT K LIST OF 2011 IMPROVEMENTS PRIORITY # DESCRIPTION 1 RIGHT FIELD EXPANSION Additional Seating Party Deck w/Concession Area Restroom Facilities Storage Facilities Z VIDEO BOARD REPLACEMENT LED Videa Display 3 FAN SHOP EXPANSION Note: To the extent that any portion of the 2011 Improvements Budget is not spent on the above-listed 2011 Improvements, such unspent portion shall be distributed to the Additional Improvements Budget and/or the County Share of Proceeds in accordance with Section il(C)(9)(e) of this Agreement. EXHIBIT "K" ACKNOWLEDGED AND APPROVED: BOARD OF COUNTY COMMISSIONERS ST. LUCIE COUNTY STERLING FACILITY SERVICES, L.L.C. By: Print Name: Title: By: Print Name: Title: -23- EXHIBIT L ARCHITECT'S CONTRACT REQUIREMENTS (2011 IMPROVEMENTSI The Architect's Contract shall, inter olio, contain terms and conditions with generally the same substance as the following two paragraphs: Periodically during the construction process, at such times as reasonably determined by SFS and County, the Architect will observe the conduct of construction of the Initial Term Improvements and notify County and SFS in writing of observed deficiencies in the Work being deemed completed (including deficiencies which preclude the Work being deemed completed), notify the County and SFS of any item not in strict accordance with the final plans, and otherwise create a punchlist of minor finishing and adjustment in any other items which the Contractor has not finally completed in strict accordance with the final plans. Failure to include an item on the punchlist will not diminish the responsibility of the Contractor to complete the work in accordance with the final plans. The Architect will use commercially reasonable efforts based upon prudent standards in the architecture industry to monitor and observe the construction of the Work in order to ensure that the Work is constructed in accordance with the final plans and on schedule. The Architect will, to the extent requested by SFS, conduct regular meetings with SFS and with the County or its designee and other appropriate parties to assist SFS in verifying that all Work is being performed according to the, Final Plans and any authorized change orders. The Architect will prepare meeting minutes after such meeting and submit same to the County and SFS, regarding the status of construction, including any material variance from the Final Plans and/or schedule of which Architect is aware. The Architect's Contract shall also require the Architect to procure a polity or policies of insurance that relate to the Work at least as favorable to SFS as the following (subject to applicable policy exclusions, conditions and terms such as aggregates and deductibles, among others): a. Liability Insurance. Commercial general liability insurance with limits of not less than $1,000,000 per occurrence/$2,000,000 aggregate. The policy shall be written on a per occurrence basis. b. Workers' Compensation and Employers Liability Insurance. Workers' Compensation and Employers Liability insurance in accordance with New York statutory requirements. c. Umbrella Liability Insurance. Umbrella or excess liability coverage at not less than a $1,000,000 limit. d. Architects Professional Liability Insurance. Architects Professional Liability Insurance at not less than a $2,000,000 limit. -24- EXHIBIT "L" ACKNOWLEDGED AND APPROVED: BOARD OF COUNTY COMMISSIONERS ST. LUCIE COUNTY By: Print Name: Title: STERLING FACILITY SERVICES, L.L.C. By: Print Name: Title: -25- EXHIBIT M FINAL PLANS AND SPECIFICATIONS (20111MPROVEMENTSI The following is the Table of Contents for the Final Plans for the 2011 Improvements, including a list of the applicable drawings and specifications. The Final Plans are in the possession of St. Lucie County. Dates indicated are the dates printed on each document submitted to the County by the Architect. [INSERT TABLE OF CONTENTS] EXHIBIT "M" ACKNOWLEDGED AND APPROVED: BOARD OF COUNTY COMMISSIONERS ST. LUCIE COUNTY By: Print Name: STERLING FACILITY SERVICES, L.L.C. By: Print Name: Title: Title: -26- EXHIBIT N CONTRACTOR'S CONTRACT REQUIREMENTS (2011 IMPROVEMENTSI The Contract between SFS and the Contractor shall, inter aiia, contain terms and conditions with generally the same substance as the following two paragraphs: The Work will, as of the completion of same, be constructed and installed in a good and workmanlike manner, in material conformity with the final plans and in accordance with applicable federal, state and local laws, ordinances and building and zoning codes and requirements of all public authorities. In addition, the Work will be constructed under the supervision and control of a certified general contractor; the Contractor shall achieve completion of the Work on or before the required completion date, subject to force majeure events and SFS delay; and the Contractor will cause the Work to be completed for a cost that shall not exceed the fixed contract price, subject only to increases due to authorized change orders. SFS will be entitled to enforce all warranties from all contractors and manufacturers on behalf of SFS to the extent such warranties are not fully in favor of the County. Without cost to SFS, the Contractor will repair, replace, restore or rebuild any work included in the Work to the extent that such Work contains defects in materials or workmanship or to which damage has occurred because of such defects. The Contract between SFS and the Contractor shall also require the Contractor to procure a policy or policies of insurance that relate to the Work at least as favorable to SFS as the following (subject to applicable policy exclusions, conditions and terms such as aggregates and deductibles, among others): a. Liability Insurance. Commercial general liability insurance with limits of not less than $1,000,000. per occurrence/$2,000,000 aggregate. The policy shall be written on a per occurrence basis. b. Workers' Compensation and Employers Liability Insurance. Workers' Compensation and Employers Liability insurance in accordance with Florida statutory requirements. c. Automobile Liability Insurance. Automobile liability coverage with limits of not less than $1,000,000 each accident, combined single limit for bodily injury or death and property damage. d. Umbrella Liability Insurance. Umbrella or excess liability coverage at not less than a $10,000,000 limit. -27- EXHIBIT "N" ACKNOWLEDGED AND APPROVED: BOARD OF COUNTY COMMISSIONERS ST. LUCIE COUNTY By: Print Name: Title: STERLING FACILITY SERVICES, L.L.C. By: Print Name: Title: -28- EXHIBIT O 2011.IMPROVEMENTSOHEDULE See attached document dated as being issued July 14, 2011, entitled: St. Lucie Mets Stadium Expansion, Port St. Lucie, Florida, Overall Project Schedule and See attached document dated September 16, 2011, entitled: Project: St. Lucie Mets Preliminary Sch Note: The 2011 Improvement Schedule is subject to change as preliminary schedules are finalized, as schedules are developed for the 2011 Improvements to the extent not reflected on the attached documents, and as the result of Change Orders. EXHIBIT "O" ACKNOWLEDGED AND APPROVED: BOARD OF COUNTY COMMISSIONERS ST. LUCIE COUNTY STERLING FACILITY SERVICES, L.L.C. By: Print Name: Title: By: Print Name: Title: -29- ~r ............................................... ......:..._............._.......................... s~ I~ a i R ~ :..................................... 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G Z .3 ~ 6 2 (I) 6 ~a oo ~ _ ~ i i .. ..._' i ym LL - n~ V a W LL O .r, (,N 'PI iv v~ ~m ~r m :m r ."- ~ [' Q YI m !~ m i ~ IA !N '.N iN ~ N N 'N N N N C I 'l'f 01 !7 ~ !C] ~ 1~ ~w ;a EXHIBIT P LIST OF 2011 EQUIPMENT uantit Eouigment Estimated Cost 1 Mower-Toro walk-behind $6,500 1 Top Dresser -Spinner Type $11,700 1 Aerator-tow behind $8,000 1 Roller $12,750 1 Field Conditioner- Dragger $15,800 1 Fertilizer Spreader $3,500 1 Mower-Greenmaster $7,500 1 Utility Cart $17,500 4 Ice Machines $22,000 1 Sod Cutter $4,200 1 Public Address System $9,000 4 Food Warmer $13,200 2 Convection Steamer $10,600 1 Scoreboard Computer System $9,500 1 Reel Master Mower $38,500 2 Hydroworx Liner $20,000 1 Draft Beer System $37,500 2 Walk-in Freezers $50,000 Musco Green Stadium Sports lighting w/control link $450,000 EXHIBIT "P" ACKNOWLEDGED AND APPROVED: BOARD OF COUNTY COMMISSIONERS ST. LUCIE COUNTY By: Print Name: Title: STERLING FACILITY SERVICES, L.L.C. Sy: Print Name: Title: -30-