HomeMy WebLinkAboutR-01-0845J-Ol-686
8/9/01
RESOLUTION NO. 0 1 — 8 4 5
A RESOLUTION OF THE MIAMI CI'T'Y COMt✓ISST_0:N,
WITH A'1'lACIIMi?N'L' (S) , AUTHORIZING Til?? CITY
MANAGER TO EXECUTE AN AGRE","HENT, IN
SUBSTANTIALLY THE ATTACHED FORM, BE'.LWE-7N
RACEWORKS, L,LC (":.,ICENSEE") , CITY OF MIAMI
AND BAYFRONT PARK MANAGEMENT `RUST
FOR RACE/MOTORSPORTS EVENTS AT BAYFRONT PARK
AND DOWNTOWN MIAMI, FOR AN INIT1'AL PERIOD OF
FI FTEEN YEIARS, WITH THE; OPTION OF EXTENDING
THE TERM OF AGREEMENT FOR A PERIOD OF TEN
YEARS, PROVIDED LICENSEE GIVES '111Hr CITY AND
THI. TRUST WRI'1"PEN, NOTICE OF ITS INTEN'1'ION '.'0
EXERCISE ITS OPTION AT LEAST SIXTY JAYS PRIOR
TO THE FXPIRAT'TCN OF T:IE AGREEMENT, IN
ACCORDANCE WI'fH OT1,ER TERMS AND CONDITIONS
SETT FORTH IN THE AGREEMENT, SUB ECT TO THE
LEASP; BETWF N THE CI`T'Y OF MIAMI' AND THE
UNITED STATES OF AMERICA, DATED AUGUST 8,
'.99U, AND SUFiJECT TO THE APPROVAL OF THE
DISTRICT ENGINEER OF THE UNITED STATES,
OEPART'MENT OF THE ARMY, PRIOR TO 'I'Hi? CITY OF
MIAMI EXECUTING '.l HTS AGREEMENT.
BE, TT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI,
FLOP I DA:
Section 1, The City Manage?--, is authorized'-' to execute
an Agreement, in substanI-J.z�l.1y zhe attached form, between
The herevi aut-hori r.at ion is further subject to compliance with all
reuuirements thaL may he Imposed by the City Attorney, including bui_ not
limited to chose prescribed by applicable City Charter and Code
provl.Slons
A7 T A C H IMEaIT �W�1
tin comession
MEETING W
AUG - 9 2001
8eeoiutlor, No.
01— 84.5
Raceworks, LLC ("Li.censoe"), Ci Ly of Miami and Bayfront Park
Management Trust ("Trust") for race/motorsports events at
Bayfront Park and Downtown Miami, for an initial period of
`ifteen years, with the option of extending the term of agreement:.
for a period of ten years, provided Licensee gives the City and
:.ire Trust sari sten notice of _ i.nLonti.on to exerciseis option
at least sixty days prior to the expiration of tho Agreement, in
accordance with other terms and conditions set forth ir. the
Agreement-, subject to the -.ease between the City of Miami. and the
United States of Amo.r:ica, dat:cd August 8, :.990, and subject to
the approval of the District Engineer- of the United States,
Department of the Army, p.-ior to the Cit -_y of Miami executing this
Agreement.
Secr.ion
2.
This Resolution shall
become effective
immediately
upon
it:s adoption and signature of
the Mayor.1I
f the Mayor does noL sign this kesolunion, it- shall become ei:focti.ve. at
the end of ren ca_endar clays from the data '_t war., passed and adopted. If.
the Mayor vet:.oe!: this ResolLlt:'_ol"1, 1L shial Vit. becomP. off-.ect-.i vo immediately
upon over. ri dF oi'. the veto by the City Commi ssi.orl.
Page 2 of 2
01- S4"
PASSED AND ADOPTED this 9th day of August
-f 2003.
JOF, CARbf-f6—,--M—AY-07R
In accordance with Miami Code Sec. 2v,36, since the Mayor did not Inchoate approval of
thi-, logislation by signing it In the designatedta
ATTEST: 'p. ce provided, said legislation no:)
becomes effective with the elapse often (10) d from tho qatp: 6 0 M m- I s s I c 4n1.:Ac r
regarding same, without the May exerels g veto.
Ih'ALTER J
C 1'1'y C T
Walter Foe GM
APPRO ED TO "FbRM AND
VT. EL-Lb—
;7F
Y ATTORNEY
W55-11 :
55-112: LB
E, age 3 o F 3 01- 845
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PROPOSED REVOCABLE LICENSE AGREEMENT
ISSUED BY THE
CITY OF MIAMI
TO
RACEWORKS, LLC
for the use of City -owned property
located in and adjacent to Bayfront Park, Miami, Florida.
Attached please find a copy of the Raceworks, LLC. License
Agreement for posting on the Internet. This draft of the Agreement
incorporates the terms approved, in principle, by the City
Commission at its last meeting. It is scheduled to be discussed at a
public meeting before the City Commission at a Special Meeting
called for August 9, 2001, at which time the City Commission will
make a final decision regarding an agreement.
01— 84
PROPOSED REVOCABLE LICENSE AGREEMENT
This revocable license agreement ("Agreement") is entered this day of
(but is effective as of ), by and between the City of Miami, a municipal
corporation of the State of Florida ("City"), Bayfront Park Management Trust ("Trust"), a
limited agency and instrumentality of the City of Miami, and Raceworks, LLC, it foreign
corporation organized and existing under the laws of the State of Delaware and licensed to
practice in the State of Florida ("Licensee").
RECITALS
WI IEREAS, the staging of the original "Miami Grand Prix," for many years in the City,
provided favorable nationwide and worldwide publicity and advertising for the City, attracted
thousands of individuals as participants and spectators to the race, many of whom traveled to the
City from other locales, said thus caused a significant beneficial impact on the economy of the
City; and
WFIEREAS, subiect to certain terms and conditions herein, in Bayfront Park, Miami,
Florida ("tile Park"); and in the public roadways that are adjacent thereto, the Licensee plans,
on an annual basis to promote and stage Racc Events (as hereinafter defined) in a manner
similar to the original "Mi nii Grand Prix," and
WHEREAS, Licensee has received a commitment for a long-term sanction agreement
with the American Le Mans Series to stage a Race Event annually in downtown Miami and in
the Park, subject to the execution of this Agreement by the City and the Trust; and
WHEREAS, the City is the owner or lessee of portions of The Park and, pursuant to
Section 38-101, City of Miami Code, the Park is managed by Bayfront Park Management Trust
("Trust"), and
WHEREAS, pursuant to Resolution No. the City Commission has authorized
the City Manager to enter into this Agreement; and
WHEREAS, pursuant to Resolution No. 01-027, the Trust has authorized its Executive
Director to enter into this Agreement; and
WHEREAS, Licensee is negotiating other agreements from other rights-of-way holders
to obtain long-term commitments to utilize their properties in order to secure the rights to the
proposed Race Course (as hereinafter defined) for the Race Gvents; and
WHEREAS, Licensee has developed a mitigation plan and has developed traffic flow and
logistical plans to minimize the disruption to Downtown businesses and hotels.
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YL[ERFAS, subject to applicable laws and the limitations set forth herein, the City and
the 'frust maintain Public Property and each possess the respective auttiority_to permit and
license the use of Public Property fbr periods of time and for the purnoscs set forth herein; and
NOW THEREFORE, in consideration of the rnimial covenants set forth herein, the
panics hereby ag;rce as follows:
1. Recitals,
The foregoing recitals are hereby incorporated and made a part ofthis Agreement.
2. Definitions.
a) "City Manager- is the City Manager for the City of i\-liami.
b) "City Ticket Fee" is the cumulative amount of fees paid to the City pursuant to
Paragraph 5 oi'this Agreement.
c) "City's Use Fee" is the Use Fee that Licensee pays to the City.
d) "Event Weekend" is the Thursday, hriday, Saturday and Sunday of Race Events
and Support Events.
C) "Lxecutive Director" is the Executive Director of the Bayfront Park Management
'frust.
I) "Hazardous Materials" are diesel, pro ancox-aceqy.leng, paints, lubricant
solvents, used oil, and other hazardous substances, -toxic substances, pollutants, contaminants or
hazardous waste materials.
g) "Initial Improvements" are the improvements to be made upon the portion of
Public Property which comprises the Race Course for the initial Race Event.
h) "Instrutllent" is an irrevocable letter of credit or other form of security instrument
acceptable to and approved in writing; by the City Manager
i) "Public l'roperrty" is real and personal property located within the Race Perimeter
that is owned or ]cased by the City or managed by the 'frust.
j) "Race Course" is the specific route through the Public Property upon which the
Race Events shall be conducted. A diagram of the Race Course is depicted in Exhibit A
incorporated hereto and made a part hereof.
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k) "Race Event" is the day(s) that a motor vehicle race sanctioned by a nationally or
internationally recognized racing organization is conducted and includes the days for practices
and qualifications fora race.
I) "Race Perimeter" is the area of Public Property within which the Raceworks
Events shall take place and which is temporarily used by (lie Licensee to promote a Race ['went,
which includes the Public Property immediately adjacent to, the Public Property comprising of,
and the Public Property that is contained within the Race Course, as depicted in Exhibit A.
in) "Raceworks Events" include; collectively Race Events, Support Events or
endeavors resulting from the license granted hereunder conducted during; an Event Weekend.
n) "Services" are the services rendered by the City's Police, Hire, and Solid Waste
Departments during Race Events or Support Events.
0) "Subsequent Improvements" are the modifications, improvements and/or
maintenance of the Race Course that may be requested by Licensee after the initial Race went
occurs.
P) "Support Events" are secondary racing series and other entertainment activities
which include having a "racing; village", catering compound, hospitality suites, VIP Club,
merchandising facilities and such other related activities permitted under this Agreement that are
conducted with a Race Event.
q) "T'rust's 'Picket Fee" is the cumulative amount of fees raid to the `frust pursuant
to Paragraph 4 of this Agreement.
I-) "Trust Use Pee" is the Use Fee that licensee nays to the Trust.
s) "Use Fee" is the fee that Licensee pays to the City or the Trust, its the case may
be, for the use of its facilitieS and property.
t) "Use Period" is the period of time allotted for the set-up, presentation and
dismantling of a Race Event. Unless otherwise agreed in writing by the City and the Trust, the
set-up period shall commence no earlier than folly -five (45) days prior to the first date of the
Race Event, and dismantling shall begin immediately upon the conclusion of the Race Event and
shall conclude within thirty (30) days thereafter. The City and Trust may extend the Use Period
for a Race Event, in writing, should Licensee require a longer period for set-up and dismantling
of' the Sallie.
3. Term
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The initial term of this Agreement shall be fifteen (15) years, commencing upon the
effective date of this Agreement. The Licensee shall have the option of extending the term of
this Agreement for a period of ten (10) years. if Licensee elects the option to extend the term of.
this Agreement, Licensee shall give the City and Trust written notice of its intention to exercise
the option a minimum of sixty (60) days prior to the expiration of the Agreement.
4. Trust's Use f`ee
Licensee will pay to the 'frust the "frust Use Fee of 550,000.00 which shall be due no
later than thirty (30) days atter each Race lvent. The Trust's Use Fee shall increase annually in
accordance with the Consumer Price Index, as published by the U.S. [department of Labor,
however in no event shall the increase exceed four percent (4%) of the Trust's Use Fee for the
last Race L:vent of the previous year in which a Race Event occurred. The 'frust Use lee is
inclusive of the fees for the use of the Park, its amenities and facilities for each such Race Event
and includes the janitorial services, electrical and water services that are normally available in
the Park. In the event that the licensee requires electrical, water and janitorial set -vices that
exceed those that are normally available in the Park; then Licensee shall be responsible for
paying; the Trust for providing or causing said services to be provided by independent
companies.
Licensee agrees to pay to the Trust the 'Crust's Ticket Fee for any and all tickets sold by
Licensee. The Trust's Ticket Fee shall he payable as follows,
Year
Trust's Ticket Fee
1-5
S1.00
6-10
$1.25
11-15
$1.50
During any extension of this
Trust's Ticket zee
Agreentent
1-5
$1.75
6-10
$2.00
Each printed ticket shall be itemized to show the admission price, applicable taxes, any
service charge from outside ticket agencies and the Trust's Ticket Fee. Licensee agrees to record
the Ticket Fee as a separate item. in the statement of accounts for the Race Event. Licensee shall
be responsible for the collection of the Picket Fee, which shall be held by Licensee in trust for
the Trust. Licensee shall pay Ticket Fee to the Trust, within sixty (60) days after the conclusion
of a Race Event. Licensee shall maintain all books and records pertaining to the Race Event and
the revenue therefrom and shall make such books rind records available for City and Trust's
inspection and auditing as provided herein.
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The Trust shall not require Licensee to ray any additional surcharges, or other charges
for the use of the Park or its facilities, equipment or services unless it is mutually agreed upon by
the panties in writing.
5. Citv's Use Fee.
Licensee will pay to the City the City Use Fee of 550,000.00 which shall be due no later
than thirty (30) days after each Race Event. The City's Use Fee shall increase annually in
accordance with the Consumer Price Index, as published by the U.S. Department of Labor,
however in no event shall the increase exceed four percent (4%)) of the City's Use Fee for the last
Race Event of the previous year in which a Race Event occurred.
Licensee agrees to pay to the City the City's 'Picket Fee for any and all tickets sold by Licensee.
The City's Ticket Fee shall be payable as follows;
Year
1-5
6-10
11-15
During any extension of this
Agreement
1-5
6-10
City's Ticket Fee
$1.00
$1.25
$1.50
City's Ticket Fee
$1.75
$2.00
Each printed ticket shall be itemized to show the admission price, applicable taxes, any
service charge from outside ticket agencies and the City's Ticket Fee. Licensee a&9-oes to
record the City's Ticket Fee as a separate item in the statement of accounts for the Race Event.
Licensee shall be responsible for the collection of the City's Ticket Fee, which shall be held by
Licensee in trust for the City. Licensee shall pay City's '.ticket Fee to the City, within sixty (60)
days after the conclusion of a Race Event. Licensee shall maintain all books and records
pertaining to the Race Event and the revenue therefrom and shall make such books and records
available for City and Trust's inspection and auditing as provided herein.
The City will not require Licensee to pay any additional surcharges, or other charges for
the use of the Public Property, its facilities, equipment or services unless it is mutually agreed
upon by the parties in writing.
6. Grant of 'Temporary Use of Public Property
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icor the term of this Agreement or an extension thereof, the City and the Trust grant
Licensee the right to use its Public Property to stage a maximum of two Race Events a year on
the Race Course and within the Race Perimeter.
Subject to existing zoning and other governmental restrictions, City and the 'frust,
respectively brant to Licensee it license to conduct the Raceworks Events on the Public Property
during the times agreed upon herein. During a Raceworks Event, the Licensee may limit public,
vehicular and pedestrian access to the Race Perimeter in a manner agreed upon by the City
Manager and the Executive Director.
This Agreement solely authorizes Licensee to the temporary use of Public. Property for
the limited purposes set forth herein and for no other purpose. The parties hereby agree that the
provisions of this Agreement do not constitute a lease. The rights of Licensee hereunder are not
those of a tenant, but are a mere personal privilege to do certain acts of a temporary character on
Public Property and to use Public Property, subject to the terms of this Agreement. The City and
the Trust retain dominion, possession and control of the Public Property. Therefore, no lease
interest in the Public Property is conferred upon Licensee under the provisions hereof. Licensee
does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in
the Public Property by virtue of this Agreement or its Use of Public Property hereunder.
Additionally, Licensee does not and shall not claim at any time any interest or estate of any kind
or extent whatsoever in the Public Property by virtue of any expenditure of fiinds by the Licensee
for improvements, construction, repairs, partitions, or alterations to the Public Property which
may be authorized by the City or the Trust. The grant of rights hereunder does not affect the
private property rights, where applicable, of any other property rights or private rights holder to
any of the property underlying the Race Perimeter, which does not constitute the Public Property.
In order to stage the Race Events, the Licensee agrees to make separate arrangements with any
entities having a legal interest in non -Public Property located within the confines of the planned
Race Perimeter, including, but not limited to, the public rights -of -ways not owned by the City or
managed by the Trust, and Licensee further agrees to provide pedestrian access along all public
sidewalks adjoining private businesses included within the boundaries of the Race Course and
the Race Perimeter.
7. Permitted Use
Subject to the conditions stated herein and any applicable laws, Licensee may limit
access to the Race Perimeter under Licensee's paid ticketing and credential system, create
viewing and pit areas, charge admission fees to persons attending the Race Event, provide food
and beverages (including beer, wine and liquor), sell merchandise and other concessions,
broadcast through any and all forms of media and sponsor other Support Events
In addition to, but concurrently with the Race Event, Licensee will also sponsor Support
Events within the Race Perimeter which could feature secondary racing series and other
entertainment activities, subject to approval by the City Manager and the l xecutive Director,
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Subject to any legal requirements, authorizations and permits, to the extent that the City
and Trust possess such rights, the City and the Trust grant a license to Licensee to conduct Race
Events and Support Events during the limited mutually agreed upon time periods provided
herein. Support Events may consist of the following: fireworks displays, musical and other
concerts and festivities, boat shows, amusement rides, animal shows, fashion shows and talent
contests, high performance ride and drive activities, air shows, high performance motorized boat
races adjacent to the Park, temporarily limit access to and/or close down City streels and
buildings to traffic or pedestrian access, limit access to the watettivays adjacent to Baylront Park,
rent mooring space in the waterways adjacent to Bayfi"ont Park, display giant televisions, laser
shows, television transmission requirements, above ground temporary or other type of voice,
data, telephone cabling, conduct night racing and set up flood lights and other equipment to do
so, sell corporate hospitality and VIP Club tickets, to set up temporary catering facilities for the
preparation and sale of food, to sell advertising rights, space and signage upon and throughout
the Race Course, Race Perimeter, Park and Race Perimeter fencing, including on barriers, debris
Fencing, pedestrian bridges, and other forms of advertisement on scoreboards and giant television
screens, signs and banners, to temporarily limit access to and/or re -direct or close traffic. The
Licensee shall submit a schedule of proposed Support Events at least thirty (30) days prior to a
Use Period, and the City Manager and the Executive Director shall have the discretion to oppose
any Support Event that either may consider not in the best interest of the City or the 'Trust,
respectively.
Subject to all applicable laws, the City and Trust hereby grant Licensee a license to
conduct Race Events and Support Event in a safe and lawful manner as scheduled, to establish
and maintain the Race Course on a temporary basis, to enable the temporary set up and tear
down of the Race Course, the right to erect pedestrian bridges and hospitality facilities, establish
the Race Course and Race Perimeter and otherwise to enable the Raceworks Events to be
promoted, effectuated, staged, operated, managed, performed, and conducted in a lawful, safe
and professional manner consistent with the requirements of the racing series, the sanctioning
organizations, industry standards.
8. Concessions Aareements
Subject to all applicable laws, and pursuant to the terms of this Agreement, and to the
extent that the City has the ability to control or permit, the Licensee may exclusively operate
concessions and enter into concession agreements to operate all concessions and merchandising
of articles associated with Race Events within the Race Perimeter during Event Weekends.
Concessions include, but are not limited to, merchandise, souvenirs, catering, food service, and
beverages (including beer, wine and liquor) and all other commercially related activities,
including media, marketing, and sponsorship for Raceworks Events. Licensee shall indemnify
hold and save harmless, and defend the City and the Trust, their directors, officers, employees
and volunteers from and against any and all claims demands, liens, judgments, liability, losses or
DRAFT- I 1' rl)RAI'I• T, DkIAI.,l'• 1)1,:11-"I'• DRAFT- DR.A[- I
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damages, including but riot limited to cost, expenses and attorney's fees arising out of or
attributable to the concession agreements that Licensee enters into for concessions.
9. Name of Race Event
Licensee has the right to create the name of the Race Event and shall notify the City and
'frust in writing of the Race Event name. Licensee agrees to utilize the name "Miami" in the
Race Event's name, and to feature the "City of Miami" and "Bayfront Park" and "Bayfront Park
Management Trust" in any and all promotional materials for the Race Events. in the event that
Licensee ceases to conduct Race Events within the coniines of the legal boundaries of tyre City,
Licensee's agrees not to use "Miami" and "Bayfront Park" in the name of subsequent race
events.
10. Media
The City and the Trust further understand and agree that the Licensee will have the
exclusive privilege to own, sell, license, sub -license, assign, convey and transfer every manner
and method of transmission, whether by satellite master antenna television systems, fiber optic,
direct broadcast satellite, transmission to TYRO receiving dishes, video dial tone system, open
video system, cable, microwave, multipoint distribution services, multi -channel MDS, radio and
by the internet, whether in a form which is existing or subsequently invented, and by means of
any similar or, dissimilar electronic, analog; or digital means now known or hereafter invented, as
well as by the World Wide Web of the Internet, including computer on-line media, real time
telemetry rights, tine and scoring information, simulcast video streaming rights, and telephonic
transmission and any other internet technology whether existing now or in the future, relating to
the Race Events and the Support Events that are contemplated within this Agreement. In
addition, so long as the Race Events are conducted in the City and within the Park, Licensee
agrees to utilize the names "City of Miami," "Bayfront Park Management Trust," respectively,
and their logos (whether in present form or as subsequently created or modified) in said media
for purposes of promoting, merchandising, and marketing the Race Events and Support Events in
any form, subject to the approval of the City and the Trust,
It. Scheduline of Race Events
The initial Race Lvent, featuring the American Le Mans Series, shall be held April 5 -7,
2002.
Licensee will conduct a maximum of two Race Events annually during an Event
Weekend. Licensee will conduct one Race 13vcnt in either the Spring or Fall. Race Events may
be scheduled during; the Surnnier or Winter, however such an alternate time must be mutually
agreed upon by the parties and is sub Jct to the terms and conditions set forth herein. The parties
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shall attempt, whenever reasonably possible, to select the same time period to schedule Race
Events annually. however, in no event shall there be more than two Race Events per year.
The City and the Trust shall, using their best efforts, attempt to accommodate the dates
an(l scheduling requirements in which Licensee proposes to conduct Race Events, Licensee shall
have a preference in scheduling dates for the Race Events given the scheduling limitations put
upon Licensee by the sanctioning organizations and by television broadcast requirements.
Licensee shall use its best efforts to schedule the lace Event(s) at approximately the same time
of the year.
Licensee shall give the City and the Trust nine (9) months written notice of the proposed
dates for any Race l vcnt. "rhe City Manager and the Executive Director shall have ten (10)
business days to approve or disapprove the proposed dates. The City and Tn►st's approval shall
not be unreasonably withheld.
In deciding whether to approve or disapprove a proposed date for a Race Event, the City,
through its City Manager, and the Trust shall give weight to a) the scheduling requirements of
the pertinent racing series and/or sanctioning organization; b) the television broadcast
requirements; and c) whether there are other events scheduled in the Park. The City and Trust
each acknowledges that the Licensee is constrained by the racing series sanctioning
organizations and television broadcast rights agreements, and the City and the Trust shall take
reasonable steps to accommodate the Licensee's proposed race dates.
12. Initial Improvements to the Race Course
Licensee has designed the Race Course which requires Initial Improvements . Based
upon modifications to Public Property that is depicted as Exhibit 13, attached hereto and
incorporated as part of this Agreement, subject to obtaining approvals from the applicable
government entities, the City will make the necessary Initial Improvements to the Public
Property that will comprise the Race Course. Licensee shall be financially responsible for the
costs of the Initial Improvements contemplated herein. Payment For the costs of the Initial
Improvements shall be made in accordance with Paragraph 13 below, entitled "Payments for the
Costs of Initial Improvements".
Sonle of the Initial improvements require approval by the Artily Corps of Engineers,
State of Florida Department of Transportation, Miami -Dade County, the Water and Sewer
Authority, other federal, state and local government agencies, and any other entity which has the
right to permit or provide approval for access to Public Property and the City makes no
representation to the Licensee concerning such approval. Using its best efforts and as soon as
reasonably possible, the City and the Trust, respectively, shall take the steps necessary to obtain
the requisite approval and/or pernlltS to make Said Initial Improvements. The City Manager shall
review and approve the proposed contracts for such expenses and services on an expedited basis.
The City will mance Initial Improvements on a timely basis so as to facilitate the timely
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promotion and staging of the initial Race went that is scheduled April 5-7, 2002, subject to the
force mRieure provisions contained herein.
In the event that additional design and construction is required, the parties will cooperate
in good faith to complete such design and constriction, respectively, on an expedited basis so as
to facilitate the initial .Race Event to be conducted as scheduled.
13. Payment of the Costs of the initial Imm-ovements
Licensee shall prepay the City or provide to the City an Instrunnent securing the costs of
the Initial Improvements, which shall be constructed by the City in phases ("Phases") to be
determined by the City Manager in his/her sole discretion. Prior to the City making Initial
improvements, the City shall provide Licensee with an invoice determining the amount of the
costs for the initial .Phase to be constructed. A minimum of thirty (30) clays prior to the City
commencing construction of the said Phase, Licensee shall either: 1) present an Instrument to the
City Manager to secure the costs of said Phase or 2) prepay the costs of said Phase. The City
shall not be obligated to commence constriction of any Improvements, until it receives and
approves tine Instrument or receives pre -payment for the cost of each Phase.
In the event that. Licensee elects to provide an instrument. to secure the costs of a Phase
and does not prepay the costs of such Phase, Licensee shall provide such Instrument a minimum
of thirty (30) days prior to the first date that the City will commence construction of said Phase.
The City shall have the right to draw upon or exercise its rights under the Instrument
immediately upon completion of construction of any Phase. For subsequent Phases, the City
shall invoice Licensee for the costs of the next Phase in the same manner as with the initial
Phase. Licensee shall provide an instrument to the City Manager a minimum of thirty (30) days
prior to the first date that the City will commence construction of tine each Phase subsequent to
the initial Phase, until all Phases have been completed. In the event of a default by the Licensee,
the City shall have the immediate right to draw upon or exercise its rights under the instrument.
In the event that Licensee docs not elect to provide an Instrument to secure the costs of a
Phase, Licensee shall pay the City for all costs associated with a Phase a minitnuim of thirty (30)
days prior to first date that the City commences construction of the initial Phase. For subsequent
Phases, Licensee shall pay all costs to the City a minimum of thirty (30) days prior to the date
when the City will commence construction of the next Phase, until all Phases have been
completed,
If Licensee fails to provide an Instrument or thils to prepay the costs for a Phase, as the
case may be, as required hereunder, then Licensee will be in default and the City will cease
making further Initial Improvements. The City will not begin a new Phase until all payments
and late payments due hereunder have been received by the City. The City shall not be obligated
to complete a Phase while Licensee is in default of this Agreement.
I
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X11i`" 8,15
In the event that third parties arc licensed to conduct Race Events on the Race Course,
the City shall reimburse Licensee $75,000 per Race Event for the costs that Licensee has paid
for the Improvements from the City's proceeds from such Race Event.
1.4. Subseouent Improvements to the Race Course
After the initial Race Event, if Licensee is required to make or undertake Subsequent
Improvements the Race Course to comply with the requirements of racing series or sanction
organizations or fir any other reason, Licensee shall notify the City Manager and the Trust a
minimum of ten (10) months prior to the Race Event. Licensee shall submit the proposed
alternate Race Course design to the City Manager at least six (G) months prior to the Race Event
for the City Manager's approval. Such approval shall not be unreasonably withheld.
Should Subsequent Improvenlents to the Race Course be required, the parties will
cooperate in good faith to: (i) adjust to any development constraints in the City; (ii)
acconllnodc to the special needs of the Race Events; (iii) cooperate with each other in good faith
to develop all alternatiVe,. COSt effCCt1VC NICC COUrse design modification which continues to
satisfy the requirements of the Race I -vents and Support Events as scheduled; and (iv) which
continues to enable Licensee to stage the Race Events in a first class planner similar to the
presentation of the. original "Miami Grand Prix" in Downtown Miami. In any year in which
Licensee requests Subsequent Improvements and the City approves of the Subsequent
Improvements, the Licensee shall be financially responsible for the cost of such improvements.
Payments for the casts of Subsequent improvements shall be made in accordance with Paragraph
15, entitled "Payments for the Costs of Subsequent Improvements." The City shall not make
additional modifications to the Race Course if Licensee is in default of this Agreement, or any
extension thereof.
15. Payment of the Costs of Subseuuent Improvements
Licensee shall prepay the City or provide to the City an Instrument securing the costs of
the Subsequent Improvements, which shall be constructed by the City in phases ("Phases") to be
determined by the City Manager in his/her sole discretion. Prior to the City making Subsequent
Improvements, the City shall provide Licensee with an invoice determining the amount of the
costs for the initial Phase to be constructed. A rninilllurn of thirty (30) days prior to the City
commencing construction of the said Phase, Licensee shall either: 1) present an Instrument to the
City Manager to secure the costs of said Phase or 2) prepay the costs of said Phase. The City
shall not be obligated to commence construction of any improvements, until it receives and
approves the Instrument or receives pre -payment for the cost of each Phase.
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In the event that Licensee elects to provide an Instrument to secure the costs of it Phase
and does not prepay the costs of such Phase, Licensee shall provide such Instrument a minimum
of thirty (30) days prior to the first date that the City will commence construction of said Phase.
The City shall have the right to draw upon or exercise its rights under the Instrument
immediately upon completion of construction of any Phase. For subsequent Phases, the City
shall invoice Licensee for the costs of the next Phase in the same manner as with the initial
Phase. Licensee shall provide an Instrument to the City Manager a minimum of thirty (30) days
prior to the first date that the City will c0111111C11CC construction of the each Phase subsequentto
the initial Phase, until all Phases have been completed. In the event of a default by the Licensee,
the City shall have tile. immediate right to draw upon or exercise its rights under the Instrument.
In the event that Licensee does not elect to provide an Instrument to secure the costs of a
Phase, Licensee shall pay the City for all costs associated with a Phase a minimum of thirty (30)
days prior to first date that the City commences construction of the initial Phase. For subsequent
Phases, Licensee shall pay all costs to the City a minimum of thirty (30) days prior to the date
when the City will commence construction of the next Phase, until all Phases have been
completed.
If Licensee fails to provide an Instrument or fails to prepay the costs for a Phase, as the
case may be, then Licensee will he in default and the City will cease making further Subsequent
improvements. The City will not begin a new Phasc until all payments and late payments due
hereunder have been received by the City. The City shall not be obligated to complete a Phase
while Licensee is in default of this Agreement.
In the event that third parties are licensed to conduct Race Events on t11e IUCe Course,
the City shall reimburse Licensee $75,000 per Race Event for the costs that Licensee has paid
for the Improvements.
16. Modifications to the Race Perimeter
Licensee shall not make any modifications or improvements to the Public Property
without prior approval from the City and the Trust:.
17. Storage
` 11C City will use its best efforts to locate and provide property for the: storage of the Race
Course safety systems, equipment and barricades. In tile event that the City is able to locate a
storage facility for Licensee to store the Race Course safety systems, equipment and barricades,
the City shall issue to Licensee a thirty (30) day revocable permit for storage of said equipment.
This in-kind service has a present approximate value of $50,000. The value shall increase
annually in accordance with the Consumer Price Index, published by the U.S. Department of
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Labor, however the annual increase shall not exceed four percent (4%). The Licensee shall,
however, be solely responsible for any transportation or other costs associated with such storage.
'rhe City and the Trust shall use their best efforts to provide Licensee at no charge with
appropriate City or Trust facilities near the Race Course to assist Licensee in the construction of
the Race Course and Race Perimeter, and the set up and tear down activities.. However, all costs
associated with all such activities shalt be the sole responsibility of the Licensee.
Licensee shall bear the risk of loss for the use of such storage and agrees to indemnify,
hold and save harmless, and defend the City and the Trust, their directors, officers, employees
and volunteers from and against any and all claims, demands, liens, judgments, liability, losses
or damages, including but not limited to cost, expenses and attorney's fees that occur as a result
of the Licensee's use of the storage facility.
18. Licenses. Authorizations and Permits
The City shall obtain licenses, authorizations and permits from the applicable county,
state and federal agencies for the improvements, modifications and maintenance that it shall
perform on the Public Property that comprises the Race Course, Licensee shall pay for such
coSIS.
Licensee shall obtain, or cause to be obtained, and maintain in fill] force and effect
throughout the term of this Agreement or any extension thereof, at its sole expense, all other
licenses, authorizations and permits that are necessary for licensee to conduct the Raceworks
Events. In the event that it is necessary for the City or the Trust to be. a co -applicant or co-
sponsor of Licensee's applications for these licenses, authorizations and permits, then the City
and Trust agree to be co-sponsors and co -applicants for any licenses, authorizations and permits
necessary to stage Raceworks Events. however, Licensee shall be responsible for paying the
cost of said applications and obtaining said licenses, authorizations and permits.
To the extent not prohibited by law, the City agrees to waive the fees for any licenses,
authorizations and permits that Licensee is required to obtain From the City. Prior to issuance of
a permit for a Race Event, Licensee shall provide tile City Manager with sufficient information,
as determined by the City Manager, to demonstrate that Licensee is, and that the Race Event
shall he, in compliance with all of the provisions of Section 549.04, Florida Statutes (2000), as
amended, which is hereby incorporated by reference. The City shall not issue a permit for a
Race Event if either the Licensee or the (lace Event is not incompliance with this Section.
Licensee shall, at its sole cost and expense, apply for all necessary national and international
sanctions to allow each Race Event to be qualified as a professional motorsports sanctioned
automobile race. A copy of the written confirmation of such sanctions from the sanction
organizations shall be forwarded by Licensee to the City Manager and Executive Director of the
Trust upon receipt by Licensee, but in any event no later than ninety (90) clays before the
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scheduled date of any Race Invent. In the event such confirmation is not received the Licensee
shall be in default hereunder.
19. City Police, Fire and Sanitation Services
Licensee shall be responsible for payment of the police, tire rescue and sanitation
services ("Services") that are required for each Raceworks Event. Six (6) months prior to a
Raceworks Event, Licensee will meet with the City Manager or designee to discuss the level of
Services that are necessary for a Raceworks Event, The City Manager or designee will contact
the City's Police, Fire and Solid Waste Departments to ascertain the level of Services that are
necessary prior to, during and after a Raceworks Event. Thereafter, the City Manager or
designee shall advise Licensee of the cost of the Services, including an estimate of the number of
police, Fire and sanitation personnel required, the estimated hours of work and applicable rates of
pay. A minimum of seven (7) days prior to the Use Period, Licensee shall provide the City with
an Instrument to secure the costs of the Services. The instrument shall also secure to the added
costs of removal of the barricades, If Licensee fails to do so, then Licensee shall be in default. If
Licensee does not cure this default by delivering an instrument to the City within twenty-one
(2 1) days from the date of its default, the City shall have the right to immediately terminate this
Agreement. The City should not have any duty to provide any services while the Licensee is in
default hereinafter.
The City shall use its best efforts to limit the cost of the Services for the Initial Race
Event to an amount not to exceed $300,000. After the Initial Racc [:vent, the City and the
Licensee will meet to evaluate the cost of Services Fbr the initial Race Event in order to
determine whether Services will exceed $300,000 in the future. However, in any event, the
Licensee shall be responsible fbr payment of the cost of the Services rendered,
If during a Raceworks Event, the City, in its sole discretion, determines that security for
the Raceworks Events is insufficient to ensure the safety and welfare of the public, then the City
or 'frust may summon such additional personnel as is deemed necessary. Licensee shalt be
responsible for payment of such additional personnel at the applicable rate, which shall be the
rate normally charged fir such Personnel, depending on factors such as whether the personnel is
off-duty or working overtime. In the event that uff-duty police officers are summoned, then the
compensation shall be rased on the greater of Ebur (4) hours or the actual time devoted to the
Race Event, including "administrative" time, such as time devoted to booking prisoners, etc.
No later than two (2) months prior to the commencement of the Use Period, Licensee
shall provide two (2) copies of a diagram/tloor plan of the proposed Raceworks Events layout to
the Office of Fire Department Plans 1_;xaminer, 444 S.W. 2`11 Avenue, 10th Floor, Miami, FL
33130. Similarly, not later than ten (10) days prior to the commencement of the Use Period,
Licensee shall obtain and deliver to the F_.xecutive Director an Assembly Permit, and such other
pennits as may be required by the City relative to a Raceworks Event, hire department
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01.- 84-5
•
•
manpower requirements for the Evcnt shall be as stipulated by the hire Marshall and approved
by the City Manager.
Licensee shall ensure compliance with all necessary police, fire, and sanitation union
requirements (if applicable) in connection with the personnel and set -vices engaged for
presentation of a Raceworks Event. The City shall use its best efforts to inform Licensee of the
terms of any police, fire, sanitation union agreement, written or oral, affecting all relevant
personnel or services used in connection with any Raceworks Event.
20. 'Traffic Plans for Mace Events
Licensee agrees in good faith to work with the City, the 'frust and the .Downtown
Development. Authority well in advance of any Race Event to devise a plan of traffic and
pedestrian control which minimizes unjustified interference with business and individual activity
in and about the Race Perimeter. It is not anticipated that any street closures will be required for
more than it total of three (3) days during any Race Event and such closures shall be over an
Event Weekend.
21. Set UP and Tear Down of the Race Perimeter Durinu the Use Period
Licensee shall have access to the Public Property during the Use Period f'or the set up and
dismantling of the Race Perimeter. During the Use Period, subjeer to the City's and the Trust's
reasonable approval and subject applicable laws and any agreements of the City or the Trust,
respectively, with other governmental or private entities, Licensee may temporarily move or
remove light posts, statues, benches or other items located on Public Property, may construct a
temporary Race Perimeter, including but not limited to, placing barriers, blockades, temporary
cable (electrical and other), safety equipment safety devices, spectator control line fencing, fence
covering material, portable toilets, signage, tents and hospitality facilities, cranes, forklifts,
vehicles, fire protection equipment and apparatus, temporary fuel dispensing, nnedical equipment
and apparatus, park and display participant vehicles, set up bleachers, seats, temporary wiring,
banners, structures, spectator control line and components thereof within the Race Perimeter and
any such other structures to ensure the safety, security, and necessary facilities to properly
conduct a Raceworks ]:vent. immediately after the Race Event, Licensee must relocate and/or
return any items moved to their original location. The set up and tear down activities shall be
effectuated so as to minimize any negative impact upon the routine activities of the City or the
Park. Licensee may request additional time to effectuate the set up and dismantling of the Race
Perimeter and approval of such request to the City or Trust shall not be unreasonably withheld.
The parties shall cooperate in good faith to plan the set tip and the real- down activities of the
Raceworks Event in such a manner as to minimize, where reasonably practical, the disruption to
local businesses adjacent to tine Race Course, yet in a manner consistent with Licensee's
reasonable ability to stage a Raceworks F'vents as planned and scheduled without undue expense
or burden to Licensee.
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Licensee shall give the City and the Trust a proposed schedule ("Schedule") showing the
dates for installation and removal of grandstands, bleachers, safety devices, and any other
apparatus or equipment to be utilized in connection with a Raceworks Event at least ninety (90)
clays prior to the Race Event. The City Manager and the Executive Director shall have fifteen
(15) business days to approve or disapprove the Schedule. Such approval shall not be
unreasonably withheld, if no response is given in such fifteen (15) day period, the Schedule
shall be deemed to have been approved by the City Manager and the Executive Director. If the
Schedule is disapproved, the Licensee shall submit a revised Schedule tor approval by the City
Manager and the Executive Director within tell (10) days of receipt of the City Manager's or
ExeCUtiVe Director's disapproval of the original Schedule.
After the conclusion of the staging of each Race Event, Licensee shall reasonably
promptly remove all grandstands, bleachers, barricades, safety devices and any other safbty
equipment and apparatus. The City may remove any temporary devices not removed on a timely
basis, or the Trust and the City, respectively, shall be reimbursed for the charges fur such
removal by drawing upon or exercising its rights under the instrument that Licensee provided for
the Services and barricade removal. The charges will he the amount of such removal costs the
City.
Licensee shall setup for the Raceworks Events in the Park rio more than seven (7) days
prior to the Race Events and tear down two (2) days after the Race Events,
22. Licensee's Operations of Race Events
(a) licensee agrees to furnish, at its own cost and expense, all personal property and
equipment necessary fir die successful and professional operation of the Raceworks lvcnts.
(b) Neither the City nor the Trust shall be responsible for any goods, merchandise or
equipment stored on the City's or Trust's properly, or be responsible for damage to Licensee's
property resulting from a power failure, hurricane, tornado, flood, fire, explosion, and or any
Other causes.
(c) Licensee shall ensure that its employees shall at all times be neatly dressed attired in
clean uniforms and wear all identification badge.
(d) Licensee shrill provide adequate personnel to provide quality service at all times.
Licensee shall be notified of any employees of f_icensee that are not deemed to be performing in
the best interest of the City and/or the 'frust.
(c) Licensee shall designate a management representative ("Management
Representative") who shall be present at the Raceworks Events. The Managenient
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Representative shall be given the fill] authority by the Licensee to make on-site decisions on
behalf of or for the Licensee, but not of the City or the Trust. The Management Representative
Shall ensure strict compliance with all terms and conditions contained in this Agreement. The
Management Representative shall serve as a liaison between the City, the Trust and the Licensee.
Said Management Representative shall remain on call on a twenty-four (24) hour basis during a
Raceworks Event should he/she need to be contacted by the City or the Trust. hl addition, the
City and Trust shall be provided with a telephone number and beeper where said individual can
be reached at all times twenty-four (24) hours a day, seven days a week. It is expected that the
Management Representative shall respond to any request and/or Concerns by the City or Trust
within a maximum of twenty-four hours, or immediately on the day of a Raceworks Event. The
City and the Trust shall designate a representative who will be similarly available to the
Licensee.
(f) Licensee shall provide sufficient personnel to professionally and safely conduct the
promotion related activities to stage the Raceworks Events.
(g) Licensee agrees to display, in plain view, any reasonable rules established by this
Agreement and established by the City and the Trust in relation to the Raceworks Events and the
operations of the Raceworks Events. No such rule shall be inconsistent with the terms of this
Agreement.
(h) Except when otherwise ntlitually agreed upon by the parties, Licensee agrees to store
all equipment awayf.rom the Public Property.
(i) The City shall be entitled, on a complimentary basis, to one hospitality suite for forty
(40) persons and forty (40) complimentary tickets for said suite for each Raceworks Event, The
City shall be solely responsible for all food and beverage charges ('or said suite. The Trust shall
be entitled to receive fifty (50) complimentary preferred seating tickets to any Raceworks Event.
(j) Licensee shall have the right to establish and charge rates, provided, however, that
Licensee shall not charge different rates to different persons admitted to the Race Perimeter. All
charges shall be posted in clearly readable signs that are posted in accordance with all applicable
laws.
(k.) Any release that Licensee. obtains from a spectator or participant in a Raceworks
Event shall also release the City and the Trust fi-om liability. Licensee shall print language on
the Raceworks Event tickets which release the City and the 'frust from any liability for personal
injury and property damage relating to the Raceworks F.,vents.
23. !tisk of Loss
Licensee agrees that neither the City nor the Trust shall be liable for any loss, injury or
damage to any personal property or equipment brought into the Race Perimeter by Licensee or
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01— 845
anyone whomsoever during the Use Period. All personal property placed or moved into the Race
Perimeter shall be at the risk of Licensee or the owner thereof. Licensee further agrees that it
shall be responsible to provide security whenever personal property either owned or used by the
Licensee, its employees, agents or subcontractors is placed in the Race Course site, including
property necessary for set-up and dismantling the Race Perimeter, regardless o1' whether or not
the Race Perimeter is open to the general public.
24. Si ana ue
Licensee, or its authorized agent, shall post signage in the City, Park, and outside of the
City limits in conformity with existing laws, ordinances, codes and regulations of any applicable
government agency. The location of signage in Bayfront Park shall be subject to the reasonable
approval of the Executive Director. Neither the City nor the Trust shall implement any
ordinances, niles and regulations which will limit Licensee's right to display and/or locate
temporary signage on the Race Course or within the Race Perimeter.
25. FinancialOblir•ations
Each parfiy shall only be entitled to the financial assistance, compensation or
remuneration specifically set forth herein, and no party shall be entitled to or shall charge any
other party any fees, assessments, surcharges, or taxes or any other thing of value other than as
specifically provided herein.
26. No Claim to Assets or Rieltts of Licensee
By entering into this Agreement, none of the parties are granted any assets, rights, titles
or interest to the other's assets, rights, title or interests, except as otherwise set forth in this
Agreement.
27. Bayside Marketplace and Concorde Cruises
The license granted herein is subject to the existing rights and agreements between the
Trust and Concorde Cruises, ins, and the City and Bayside Marketplace Limited Partnership, the
latter is attached hereto and made part hereof as Exhibit "C".
28. Non -Interference and First Might of Refusal
Neither the City nor the 'frust shall permit the staging of any Race Event within forty-five
(45) days before or thirty (30) days alter a Race Even(. Subject to the conditions herein and any
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- 8411
applicable laws, Licensee shall have the first right of relusal to stage any Race Event on the Race
Course (in its present or future form) subject to further good faith negotiations with the City and
the Trust.
29. Licensee's Records and Financial Statement
No later than sixty (60) days prior to the Use Period, Licensee shall submit to the City a
report of proiected expenses, revenues, equity and bank financing to demonstrate whether the
Licensee has the financial wherewithal to stage Race Event(s) which will be prepared by a
certified public accountant. hl the event the City Manager, in his sole discretion, determined that
the Licensee is not financially capable of staging the Raceworks Event, the City Manager may
terminate this Agreement after ten (10) days notice to the Licensee.
30. Compliance with Municipal Motor Vehicle .Racing Act
The staging of the Race Events and temporary collstrllCti011 Of tile Race Course which is
performed under this Agreement shall be in accordance with all applicable laws and regulations
applying thereto, including all of the provisions of the Municipal Motor Vehicle Racing Act as
set forth in Section 549.09, Florida Statues (2000).
31. Promotion by City stud Trust
The City and the 'frust, respectively, through their normal operations, will cooperate in
good faith with Licensee to promote Race Events through the City's departments or offices.
32. Ouality of Events
Licensee agrees that its operation and promotion of the Race Events shall provide a
quality of service commensurate with and equal to a professional motorsports event of
comparable nature.
33. Taxes
Other than the canes contemplated herein, during the term of this Agreement and any
extensions thereof, the City and the Trust shall not levy, within the Race Perimeter, any special
assessments, charges, taxes, penalties, or fees directly or indirectly against Licensee, its
operations, sales, tangible or intangible property, revenues, profits, or any vendors, sponsors,
racing series, sanctioning organization contracting with Licensee or any customers in relation to
ownership, management, promotions, operation or staging of the Race Events. Throughout the
term of this Agreement and any extension thereof, Licensee shall pay all taxes, assessments and
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other governmental charges that may be levied upon its promotions and operations under this
Agreement.
34. Compliance With Laws
Licensee and/or its authorized agents agree to comply with applicable laws, codes
ordinances and regulations enacted or promulgated by federal, state, county, and City
government including the provisions of the Charter and Code of the City. Licensee and/or its
authorized agents shall also comply with reasonable directives of the City Manager.
35. Additional Expenses
Under no circunrstances will the City be liable for any costs or expenses incurred by
Licensee under this Agreement or as a result of the Race Events, Support Events or related
activities beyond those that are specifically set forth in this Agreement.
36. No Discrimination in Hirinu.
In the performance of this Agreement or any extension thereof, Licensee and/or its
authorized agents shall not discriminate against any employee or applicant for employment
because of sex, age, race, color, religion, ancestry or national origin. License and/or and its
authorized agents will take affirmative action to insure that minority applicants are employed and
that employees are fairly treated during employment without regard to their sex, age, race, color,
religion, ancestry, or national origin. Such action shall include, but not be limited to, the
following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising,
layoff or termination, rates of pay or other forms of compensation.
37. Indemnitication.
Licensee shall indemnify, hold and save harmless, and defend the City and the Trust,
their directors, officers, employees and volunteers from and against: any and all claims, demands,
liens, judgments, liability, losses or damages, including but not litttitcd to cost, expenses and
attorney's fees caused by the actual or claimed negligence (active or passive) or omission of
Licensee, its agents, employees, contractors, or concessionaires, or either of them, either as a sole
or contributory cause, for loss of, use of, injury to or destruction of any property arid/or bodily or
personal or other injuries, including death, at any time resulting therefrom, sustained by any
person or persons, including officers and employees of the City or the Trust, or in any manner
attributable to any and all actions, representations, or performance of the provisions of this
Agreement.
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Licensee shall further indemnify, hold and save harmless, and defend the City and the
Trust, their directors, officers and employees, from and against any and all claims, liens, liability,
losses or damages, including but not limited to cost, expenses and attorneys' fees arising out of
the City's statutory obligations pertaining to defective; conditions in the Mace Course and
appurtenances thereto, including obligations under the Florida Statutes relating to dangerous
condition of public property. :Notwithstanding the foregoing, it is specifically understood and
agreed that Licensee shall not indemnify nor agree to hold free and harmless and defend the City
or the "Crust, its officers and employees, or any of than of and from and .against any and all
claims, demands, liens, judgments, or otherwise, for death of or injury to any person or damage
to any property whatsoever that may happen or occur as the sole result of any act or activity of
the City or the Trust or any person acting for the City or the `frust or under their separate control
or direction in failing to perforin any act or duty imposed upon the City or the Trust by the terms
of this Agreement, or as the sole result of any act or non -action by the City permitted or required
pursuant to the terms of this Agreement. As between the parties to this Agreement, such liability
shall be solely borne by the City and/or the 'frust.
In the event that the City or Trust is a defendant in or party to litigation as a result of
negotiating; or entering into this Agreement or any extension thereof, Licensee shall indemnify,
hold and save harmless the City and the 'Trust, their directors, officers, employees and volunteers
from and against any and all claims, demands, liens, judgments, liability, losses or damages,
including but not limited to cost, expense~ and attorney's fees. The City Attorney's office shall
be responsible for the vigorous defense of any litigation resulting from such judgments, liability,
losses or damages.
Licensee also agrees not to sue the City or the Trust, their directors, officers, employees
and volunteers in the event that a third party sues the City, the Trust, their directors, officers,
employees and volunteers, fin- injunctive relief preventing performance of this Agreement and
such injunctive release is granted.
38. Insurance
Licensee shall obtain and keep in force at all times during the term of this Agreement, a
policy of public liability and property damage insurance, in a forn acceptable to the City's (tisk
Administrator, protecting the City and the Trust, and their officers and employees, against any
and all liability due to the death, injury, loss or damage to persons or property arising out of, or
in any way incident to Licensee's operations of the Race Events. 'rho policies described herein
shall be provided to the City prior to the City commencing the initial improvements
contemplated herein.
Licensee agrees to provide a liability policy in comprehensive form, including pollution
liability coverage, in a forst acceptable to the City's Risk Administrator, in the amount of not
less than $20 million dollars combined single limits for bodily injury and property damage.
Additionally, the Licensee must provide products and completed operations coverage in an
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01`• 84:)
0
amount of not less than S20 million dollars and must make the City and the Trust a named
insured under the policy(s) and name AT&T, or any other subsequent sponsor of the Park as an
additional insured.
39. Risk Review
A copy of the insurance policies evidencing such insurance coverage shall be filed with
the City's Risk Management Division no less than thirty (30) days prior to any Use Period, and
such policies shall provide that such insurance coverage will not be cancelled or modified
without at least thirty (30) days prior written notice to City and the `]'rust. At least thirty (30)
days prior to the expiration of any such policy, it renewal policy showing that such insurance
coverage has been renewed shall be filed with the City's Risk Management Division, attention to
the Risk Administrator, 444 S.W. 2`11 Avenue, Ninth Floor, Miami, Florida 33130.
City reserves the right to periodically review the sufficiency of the insurance policy, as
required by this Licensee and to request licensee to change the insurance coverage to be
provided in any policy of insurance as provided for herein. Licensee shall, upon receipt of such
request, increase the limits of such insurance to any amount reasonably satisfactory to City. Any
such additional amount of coverage shall be comnlerisurate with other events of this nature and
shall in no event exceed $25 million in coverage or cause Licensee more than tell percent of
additional insurance premium charges in any two-year period.
40. Audits
During the terns of this Agreement, and any extension thereof, Licensee shall deliver to
the City and Trust a certified statement, executed by Licensee's Chief Financial Officer, stating
the number of all paid admissions for all of the Raceworks Events, accompanied by any such
other documents as may be necessary to support the Chief Executive Officer's certification, such
as a ticket manifest, sales journals relating to ticket sales, complete box office statements of all
tickets sold any other appropriate records as may be reasonably required by good accounting
practices for records of tickets sold for all Raceworks Events. If Licensee uses a third party to
sell tickets for Raceworks 1;vents, Licensee shall provide any and all documentation regarding all
Raceworks tickets sales along with the certified statement. In the event that the City Manager or
designee determines, in his/her sole discretion, that there is a discrepancy in the amount remitted
by the Licensee for the City and Trust's fees, then the City shall have the right at all reasonable
times, upon reasonable notice and during normal business hours, to examine any and all of
Licensee's books and records as may be required by good accounting practices to determine and
verify all of the ticket sales for Raceworks Events. All books and records shall be maintained and
kept by the Licensee within the corporate limits of Miami -Dade, County. The City Manager
Shall have the discretion to require the installations of any reasonable additional accounting
methods as lie may deem reasonably necessary so long as such installations are consistent with
professional accounting standards as applied in the industry.
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0 •
The City or the Trust, at their sole expense, may, at reasonable times and for a period of
up to three (3) years following the expiration of the term of this Agreement or any extension,
earlier termination thereof, audit, or cause to be audited, those books and records of Licensee.
Licensee agrees to maintain all such books and records at its principal place of business. As
between the City and the 'frust, only one party may audit Licensee in a given year.
411. Inspections
City shall have the right, at all reasonable times and upon reasonable notice, to make
whatever inspections City deems reasonably necessary to determine if .Licensee is complying
with the terms and conditions of this Agreement and any applicable laws. Licensee agrees to
provide City with reasonable access to its operations for such inspection purposes.
42. Public Records
Licensee understands that the public shall have access, at all reasonable times, to City
contracts, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access
by the City and the public to all documents subject to disclosure tinder applicable law.
43. Nondiscrimination
Licensee represents and warrants to the City that Licensee does not and will not engage
in discriminatory practices and that there shall be no discrimination in connection with
Licensee's use of the Race Course or presentation of the Race Events or Support lsvents on
account of'raee, color, sex, religion, age, handicap, marital status or national origin,
44. Aftirmative Action
Licensee shall have an Affirmative ActionlEqual Employment opportunity policy and
shall institute a plan for its achievement which will require that action be taken to provide equal
opportunity in hiring; and promoting for women, minorities, the disabled and veterans. Such plan
will include a set of positive measures which will be taken to insure nondiscrimination in the
work place as it relates to hiring, firing, training and promotion, In lieu of such a policy/pian,
Licensee shall submit a Statement of Assurance indicating that its operation is in compliance
with all relevant civil rights laws and regulations.
45. Conflict of interest
24
DRI*\I I- 1)1\,"\I I -1)( .1f'I.. DRAI I, IMIA1, I- IWAI. F- I> AI'I- I)RAI F.
01. 845
Licensee is aware of the conflict of interest laws of the. City of Miami (Miami City Code
Chapter 2, Article V), Dade County, Florida (Dade County Code, Section 2-11.1 et. seq.) and of
the State of Florida as set forth in the Florida Statutes, and agrees that it will fully comply in all
respects with the terms of said laws and any future amendments thereto.
Licensee further covenants that no person or.entity under its employ, presently exercising
any functions or responsibilities in connection with this Agreement, has any personal financial
interests, direct or indirect, with the City or the Trust. Licensee further covenants that, in the
performance of this Agreement, no person or entity having such conflicting interest shall be
utilized in respect to services provided hereunder. Any such conflict of interest(s) on the part of
Licensee, its employees or associated persons, or entities must be disclosed in writing to the City.
46. late Payments
. Should Licensee fail to make any payment to the City or the 'frust as provided in this
Agreement, a late payment charge of one percent (I %) of the amount due the City or the Trust
will be assessed monthly against the Licensee commencing on the due date of such payment,
until such amount is paid. In the event that licensee shall fail to pay any of its Financial
obligations to the City or Trust within five (5) months after being past due, then Licensee shall
be deemed in default of this Agreement.
47. Failure to Staue Events
During this Agreement, or any extension thereof, if Licensee fails to stage at least one (1)
Race Event annually Licensee shall be in default, unless such failure is as a result of 1) an act of
the City or the Trust which prevents and makes impossible for the Licensee to perform its
obligation to conduct it Race Event, 2) the Licensee's failure to obtain permission from Bayside
Marketplace Limited Partnership or other right-of-way holder for use of the property that they
own or possess and which is essential to stage, establish, maintain and/or operate the Race
Course and Race Perimeter for a Race Event, or 3) conditions of force majeure, as that term is
hereinafter defined, which prevents the Licensee from performing its obligations hereunder. It is
expressly understood that Licensee is not obligated to stage two Race Events annually during the
term of the Agreement, or any extension thereof, and its failure to stage more than one Race
Event shall not in any sense be deemed a default or breach of this Agreement. In the event that
the Licensee has not scheduled a second Race Event for a given year and another entity contacts
the City and the Trust and wants to conduct its own Race [:vent, Licensee shall have the first
right of refusal to stage a second Race Event prior to the City and/or Trust agreement to permit a
third party to stake a Race Event.
In the event that the Licensee fails to conduct it Race Event within any two (2) year
period, the City an(] the 'frust have the right to terminate this Agreement by giving Licensee
written notice thereof. If thereafter, Licensee fails to cure said default by staging a Race Event
25
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01— 84�ll
0 0
within nine (9) months of the notice, the Agreement shall be deemed terminated. This provision
shall not apply if the reason for the failure to stage a Race Event is not the Licensee's fault, but is
due to 1) an act of the City or the 'Crust which prevents and makes impossible for the Licensee to
perform its obligation to conduct a Race Event, 2) the Licensee's failure to obtain permission
from Bayside Marketplace Limited Partnership or other right-of-way holder for use of the
property that. they own or possess and which is essential to stage, establish, maintain and/or
operate the Race Course and Race Perimeter for a Race Event, or 3) conditions of force ntlieure
as that term is hereinafter defined, which prevent the Licensee from performing its obligations
hereunder.
48. Assienment
Licensee shall not sell, assign this Agreement; or any part thereof, or transfer more than
50% of its ownership interest to any other party without first obtaining the written consent of the
City and the Tnrst. The approval or consent of the City and the "frust shall not be unreasonably
withheld. Such assignment shall be in writing and shall require the assignee to assume all of
Licensee's obligations under this Agreement. Any assignment of this Agreement contrary to the
foregoing provision, whether voluntary or involuntary, shall be void and shall confer no right
upon such assignee, shall constitute a default under this Agreement, and shall result in an
immediate forfeiture of the rights of Licensee hereunder.
Sale means any transaction or series of related transactions pursuant to which any person
or entity (other than Peter J. Yanowitch or his affiliates) (i) acquires from the holders thereof a
majority of the outstanding equity interests of Raceworks Lf.0 or (ii) the sale of all or
substantially all the assets of Raceworks, including any assignment of this Agreement.
49. Licensee's Release from Agreement
In the event that licensee desires to relocate, discontinue or move the Race Invents from
the Downtown Miami site at Bayfront Park, then Licensee shall pay the City a fee ("RDM Fee")
in an amount equal to:
the aggregate costs to the City and/or the Trust of the in-
kind services(e.g. the value of the storage of Licensee's
equipment) the costs of the Improvements and
modifications to the Race Course, if any, made by the City
and the Trust during the term of this Agreement, or any
extension thereof, any other cost to the City or the Trust for
Raceworks Events, that the Licensee has not paid or
reimbursed the City for (collectively "the City Costs")
26
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1-- 844
plus
Plus
• 1 •
seven and one-half percent (7 % %) interest of the City Costs
any outstanding Fees, payments or amounts thatare due and owing to the
City or the Trust.
As an example and for illustrative purposes only, if the City Costs equal $1,000,000 at
the time the Licensee is released from this Agreement and the Licensee has Failed to pay 530,000
for Subsequent Improvements then the City shall receive
($1,000,000) 4- (7!/2% x $1,000,000) -t- $30,000= S 1,175,000.
After payment by Licensee of the .RDM Fee, the City and Trust shall release and hold harmless
Licensee from any and all claims that the City and 'frust have under this Agreement. If Licensee
PAs to pay the total amount, then .Licensee .shall be deemed in material breach of this
Agreement.
In the event that Licensee desires to relocate, discontinue or move the Race Events irom
the City limits, Licensee agrees not to use the name "Miami" or any other reference to the City
or the Trust in the name of Licensee's subsequent race events.
50. Notices
All notices or other communications which shall or may be given pursuant to this
Agreement shall he in writing and shall he delivered by hand, telecopy, or registered mail
addressed to the other party at the address indicated herein. Such notice shall be deemed given
on the day on which hand delivered; faxed or, if by mail, on the fifth day after being posted or
the date of actual receipt, whichever is earlier.
If to City of Miami; City Manager
City of Miami
444 SW 2'" 1 Avenue
10"' Floor
Miami, Florida 33233-0708
If to the Trust: l'sxecutive Director
Bayfront Management `frust
301 North Biscayne Boulevard
Miami, Florida 33132
With a copy to
City Attorney
27
DPAl ] • ORAI- I' •Dl,'.AV- DR: -%l` - DI"' AF - I:)R, V] — DRAl,"I - DRAY I'• Dl*"AT 1
01-- 8rt
•
City of Miami
444 SW 2"`► Avenue
Suite 945
Miami, Florida 33233-0708
If to Licensee: Mr. Peter J. Yanowitch
President
ltacevt-orks, LLC
800 Brickcll Avenue
Suite 550
Miami, Florida 33131
51. Waiver
Any waiver by either party or any breach by either party of any one or more of the
covenants, conditions or provisions of this Agreement shall not be construed to be a waiver of
any subsequent or other breach of the same or any covenant, condition or provision of this
Agreement, nor shall any failure on the part of the City or Trusl to require or exact full and
complete compliance by Licensee with any of the covenants, conditions or provisions of this
Agreement be construed as in any manner changing the terns hereof to prevent the City or "frust
from enforcing in full the provisions hereto, nor shall the terns of this Agreement be changed or
altered in any manner whatsoever other than by written agreement of the City and Trust and
Licensee.
52. Force Maieure avid linnossibility
The parties shall be excused from performance of any obligation hereunder when such
performance has been delayed, hindered and prevented by any cause or causes beyond the parties
reasonable control, including impossibility of performance, which shall include but not be
limited to, any act of government or governmental agency, labor disputes, riots, civil commotion
or insurrection, war or war -like operations, invasion, rebellion, military or usurped power,
sabotage, the acts of'superior governmental authorities, fires or other casualties, natural disasters,
hurricanes, or acts of God or sudden failure of subsurface structures. Should force majeure cause
the Race Events or cause the use of the Race Course or Race Perimeter to be suspended and it
prevents or makes it impossible for the Licensee from conducting or promoting at least one race
during any given year, then the term of this Agreement shall be extended for a one year period
for each year lost as a result of force mfkjeure or such impossibility. However, if the force
majeure or impossible circumstance is permanent and incapable of being cured, then either parry
may terminate this Agreement by giving; the other party thirty (30) days written notice of such
termination,
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0.1.r 84 a
•
53. Failure to Obtain National or International Sanctioned Event.
Five business flays before the Use Period, Licensee shall present to the City Manager and
the Trust proof of that it has an agreement with a national or international sanctioning
organization.
In the event that the Licensee is unable to obtain agreements fi•oin a national or
international sanctioning organization for a Race Event or there is the cancellation of such
agreement with a national or international sanctioning organization, then Licensee shall be in
default. The default is cured upon Licensee demonstrating that it has obtained an agreement with
a national or international sanctioning organization.
During the time of default, in the City Manager's sole discretion and Nvith the City
Manager's written approval, the Licensee may stage in unsanctioned race event. The Citv
Manager may, at his sole discretion, impose additional conditions upon Licensee to mitigate the
effect of having an unsanctioned race event. However, the staging of an uiisanctioned race event.
is not a cure for the default. In no event shall Licensee stage a combination of more than two (2)
sanctioned Race Events or unsanctioned race events per year.
54. Default and Termination
Except as otherwise specifically provided hereunder, if at any time during the term of this
Agreement, or any extension thereof, should any party be in default of any term, provision or
covenant of this Agreement, and shall fail to take affirmative steps to remedy such dclhult within
thirty (30) days after written notice from the other party, then, if such default is not cured within
nine (9) months, the non -defaulting party may, at its option, terminate this Agreement by giving
the defaulting party written notice of its election to terminate this Agreement at least fifteen (15)
days prior to said date of termination,
55. Permanent Improvements
Upon the expiration or termination of this Agreement or any extension thereof, the
improvements, devices and facilities constructed by Licensee, which are permanently affixed to
public property or which shall create a hazardous condition by their removal, shall, at the City's
election, become the property of the City or, where applicable, the 'frust, without compensation
therefore.
Sb. Restoration of Public Property
29
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01— 845
• 0
At the end of each Use Period and upon the termination of this Agreement or any
extension thereof, licensee shall restore Public Property, personal property and fixtures of the.
City or the Trust to the same condition in which the Public Property was before the Licensee
used tiro Public Property, except for normal wear and tear or any destruction of the Public
Property as a result of force majeure so that Public Property is suitable for its normal use.
Attached hereto as Exhibit 1), is Licensee's Mitigation Plan, which is hereby incorporated as part
of the Agreement. This obligation of the Licensee does not apply to restoring the condition of
Public Property to the condition that it was in prior to the construction of the Improvements
delineated in Paragraph 12 and it does not apply to the condition that the Public Property was in
prior to the maintenance of the Race Course that is delineated in Paragraph 13. With exception
of the foregoing, Licensee shall repair any damaged caused to Public Property, personal property
or fixtures of the City and Trust as a result of a Raceworks F,vent and shall restore Public
Property to the same condition that is was in before the respective Raceworks Event occurred.
!n the event of termination of this Agreement or any extension thereof, or upon the
expiration of the term of this Agreement, or any extension thereof, Licensee shall promptly,
remove all personal property, fixtures and equipment from the Public Property. In the event
Licensee fails to remove its personal property, equipment and fixtures from the Public Property
within a sixty (60) day period, said property shall be deemed abandoned and thereupon shall
become the sole personal property of the City and Trust. The City and Trust, their sole
discretion and without liability, shall remove the same and the Licensee shall reimbtu•se the City
and Trust for all reasonable expenses associated with such removal and disposal.
57. Compliance with Environmental Laws
Licensee represents and warrants that during the term of this Agreement, or any extension
thereof, it will not use or employ the Public Property, or any other City owned property, to
handle, transport, store or dispose of any Hazardous Materials and that it will not conduct any
activity on Public Property or City owned property in violation of any applicable environmental
laws,
Notwithstanding the foregoing, Licensee may handle, transport, store or dispose of
Hazardous Materials as necessary for Licensee's Race Events on Public Property as long as such
handling, transportation, storage and disposal is performed in strict compliance with all
app
licable laws and regulations. Licensee hereby indemnifies and holds harmless the City and
the Trust and their_ resnective officers. employees and agents. from and against all actions and
liabilities relating; to the Licensee's handling, transportation, storage and disposal of Hazardous
Materials on or about the Public Property or City owncd.prnl7crt
58. Invalidity.
30
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o1w 845
•
In the event: that any non -material provision of this Agreement shall be held to be invalid
fir any reason, such invalidity shall not affect the remaining portions of this Agreement and the
sante shall remain in full force and effect.
59. 'Gime of Essence.
It is expressly agreed by the parties hereto that time is of the essence with respect to this
Agreement. if the final day of any period falls on a weekend or legal holiday, then the final day
of said period or the date of performance shall be extended to the next business day thereafter.
60. No Interuretution Auainst Draftsmen
The parties agree that no provision of this Agreement shall be construed against any
particular party and each party shall be deemed to have drafted this Agreement.
61. Further Acts
In addition to the acts and deeds recited herein and contemplated to be performed,
executed and/or delivered by the parties, the parties each agree to perform, execute and/or deliver
or cause to be performed, executed and/or delivered any and all such further acts, deeds and
assurances as may be necessary to consummate the transactions contemplated hereby.
62. Litip-ation
Any dispute herein shall be resolved in the courts of Dade County, Florida. The parties
shall attempt to mediate any dispute without litigation. I lowever, this is not intended to establish
mediation as a condition precedent before pursuing specific performance, equitable or injunctive
relief.
63. Successors and Assigns
This Agreement shall be binding upon the parties, and their successors and assigns as
permitted herein.
64. Third Party Benetleiary
This Agreement is solely for the benefit of the parties hereto and no third party shall be
entitled to claim or enforce any rights hereunder.
31
I)RA1. I'+ f)R "IN 1: 1 -DR 11. 01"A '11 I?RA1 'In IWI "%].Ia DRAFT- DRAFT. I)RAl.]
0J. 84.5
•
65. No Partnership
Nothing contained herein shall make, or be construed to make any party a principal,
agent, partner or.joint venturer of the other.
66. Amendments
No alterations, amendments or modifications hereof shall be valid unless executed by an
instrument in writing by the parties with the same formality as this Agreement. Neither this
Agreement, nor any term hereof, can be changed, modified, or abandoned, in whole or in part,
except by instrument in writing, and no subsequent oral agreement shall have any validity
whatsoever.
67. Miscellaneous
Title and paragraph headings are for convenient reference anis are not a part of this
Agreement.
68. Entire Aereement
This Agreement and represents the entire understanding between the parties hereto as to
the subject matter hereof, and supersedes all prior written oral negotiations, representations,
warranties, statements or agreements between the parties hereto as to the same. There are no
promises, terms and conditions, or obligations other than those contained herein, and no party
has relied upon the statements or promises of the representatives of any party hereto.
69. Authority.
Each of the parties hereto acknowledges it is duly authorized to enter into this Agreement
and that the signatories below are duly authorized to execute this Agreement in their• respective
behalf.
70. Approval By Emereency Financial Oversieht Board
The State of Florida has appointed an Emergency Financial Oversight Board ("Oversight
Board") which is empowered to review and approve all pending City of :Miami contracts. As a
result, contracts shall not be binding on the City until such time as they have been approved by
32
-1)I.;\I' I'- OR,\I•] e DR *I'- DR:\FT- DR.\I` I a l:?RAVF- DR,AI 1
the Oversight Board. Execution of this contract by the City Manager shall constitute evidence of
its approval by the Oversight Board.
71. Aimroval By the U.S. Department of the Army, Army Corps of Engineers
The United States of America owns it portion of the Park and has leased that portion to
the City under a lease agreement dated August 16, 1990 ("U.S.A. Lease"). This Agreement is
subject to the conditions of the U.S.A. Lease and shall not be binding until the City receives
written approval of this Agreement from the U.S. Department of the Army, Army Corps of
1-rigineers. In the event that the U.S, Department of the Army, Army Corps of Engineers does
not grant its approval of this Agreement. The panties will endeavor to locate another site for the
Race Course and Race Perimeter. However, if the parties are not able to agree upon the location
and terms of the agreement, then this Agreement: shall be terminated upon thirty (30) days notice
to the other parties.
33
I)I:r11 "I. Dlz,!\I' I'-UI;A1' 1'•'1)1,1-\F - IWIA1, 1', 1)RA 1d DRI.M.1^ DIt:`�I"1'µ 1A."Al 1
01— 845
S T E E L 1 Steel Hertor & Davis i.i.r
!00 South Biscayne Boalevard
1-1 17. 1, TO R Miami, Florida 33131-3398
305-577.70000 n U 1 S~ 305.577.7001 Fax
August 9, 2001 v` �ttiw.steeihector.com
MUD UOs Lopez
305 571 7070
/lopez5tsf� 111rctar.cot it
Via Hand -Delivery Privileged - For Settlement Purposes Only
Alejandro Vilarello, Esq.
r,
City Attorney's Office
City of Miami �' x• ,r1
444 S.W. 2nd Avenue, Suite 945
Miami, FL 33130 0�
Re: Settlement Proposal
Homestead -Miami Speedway, LLC vs. City of Miami'`t_C
Case No. 01-17514 CA 24 }.
Dear Mr•. Vilarello: �
As you are aware, we represent the Homestead -Miami Speedway LLC ("Speedway") in
opposition to the proposed agreement with Raceworks LLC. On July 27, 2001, the Speedway
filed a complaint for Declaratory Judgement and .Injunctive Relief alleging that the City of
Miami ("City") has failed to abide by Florida Law and the Code of the City of Miami. That suit
is pending before Circuit Court Judge Michael Genden, and the City's Answer.' is due on August
23, 2001.
While we are sympathetic to the City, and understand the Commission's only motivation
is to do what it believes is best for its citizens, we must reaffirm our concerns surrounding this
proposed Agreement. Attached for your convenience is a summary of the issues and objections
we see in the latest version of the Agreement. (See attached Exhibit "A"). During previous
Commission meetings we have articulated our belief that the City and Raceworks have already
violated or are about to violate several provisions of State and City law, including inter aria:
• Florida Statute 286,011 - Public meetings and records. Tile City, by and through its
elected and/or appointed officials, has engaged in private discussions and negotiations
with Raceworks regarding the proposed agreement to hold a street race in downtown
Miami. Such private discussions were not open to the public, scheduled meetings were
cancelled, and documents were withheld in violation of the requirements of Florida law.
• Section 2-33 o%the City o/'Miami Code, The City is required by its own laws to furnish a
copy of each proposed Resolution and Agreement to designated parties five (5) days prior
Submitted Into the putdic
record In cortin eelion with
€i 4 tem on
Walter F ocman
Miami West N1111 Bedell 1111a11aSSea Napless Key West London Caracas Sao Pau1n alio ae Jaueru sallc"iQleli(
Alejandro Vilarello, Esq.
City Attorney's Office
City of Miami
August 9, 21001
Page 2
to the Commission meeting. With regard to the latest version of the Raceworks
agreement, the City failed to do so and thereby violated City law.
!Florida Statute 549.08 - ilItinicipal Motor Vehicle Racing Act. The City has not made the
required determinations as enumerated in the Act including but not limited to, whether
Raceworks has adequate insurance to pay any damages incurred because of loss or injury
to any person or property, could provide adequate security and necessary facilities during
racing events, has demonstrated the ability to protect the life, safety and welfare of the
citizens of the City, and whether Raceworks has the experience to conduct such races..
Sections 29-A and 29-8 oJ'rhe City of Miami Charter. The City Charter prohibits any
disposition of an interest in real estate owned by the City unless the City has either
advertised for and received at least three (3) competitive bids or submitted the final
agreement to the electorate for approval by referendum. The City has engaged in
negotiations with Raceworks without following either the competitive bidding procedures
or the referendum requirements. Therefore any such agreement is in violation of the
Charter and consequently null and void as a matter of law.
Section 3(iii)(d) of the City of Miami Charter and the Bayside Lease Agreement.
The Bayside lease agreement in its current form contains several provisions
prohibiting certain uses of the surrounding public lands. The use contemplated by
the Raceworks agreement, to wit, altering the landscape in order to construct a
race course through Bayfront Park, along with the erection of bleachers, fences,
and assorted barriers, would clearly violate these provisions. Therefore, before
any such activity can take place, the Bayside lease must be amended.
In order to amend the lease, however, the City Charter details four requirements which
must be met. These conditions have not been met and the Charter specifies that "any...
modification of an existing such lease or management agreement ... shall not be valid
unless it has first been approved by a majority of the voters of the city." Consequently,
amending the Bayside Lease without a referendum would violate the City of Miami's
Charter.
Based upon the above objections and the other matters set forth in our Complaint
(including any amendments thereto), we believe that a court of law will find that the Agreement
and/or procedures used in implementing the Agreement violate applicable Florida Law.
®ubmltted Into the public
MOM In connect,*�n���Ith
.�_ on .�=.,._ �!__
Walter Foeman
J 1 City gJ
STEEL I1ECTOP & 1 MVIS 1.1.1'
Alejandro Vilarello, Esq.
City Attorney's Office
City of Miami
August 9, 2001
Page 3
In order to resolve this matter, we hereby offer to settle this dispute and dismiss our
lawsuit if the City agrees by no later than the end of the Special Commission Meeting on
August 9, 2001 to submit the Agreement to the electorate for approval be referendum on
November 6, 2001. We agree that we will abide by the results of the public referendum. If,
however, the City docs not allow the decision by the voters pursuant to this settlement
offer, please be advised that we will have no other alternative than to prosecute this case
and pursue all legal and equitable remedies available to us.
As always, thank you for your professionalism and prompt attention to this matter.
Attachments
cc: Walter Foeman, City Clerk
ti"fl_EI_ HFC -TOR & I)AVIS LIX
Submitted into the public
record .9 connection 211h
itwn on -,$ Z
Waller F"M
MY Me
01— 845
"EXHIBIT A"
SUMMARY OF ISSUES CONCERNING
PROPOSED RACEWORKS AGREEMENT
The City Commission seems determined to approve a street race in Miami. The
Commission is to be commended for attempting to make the proposed Agreement better.
for the City and its citizens than the Agreement originally submitted, Despite the
Commissioners' comments and instructions on the public record, the Agreement remains
unbalanced and one-sided in favor of the race promoter. The points listed below should
be addressed in order for the Agreement to be consistent with the Commissioners' stated
intent, and to remove the undue financial risks to the City that remain.
Members of the City Commission have voiced that the proposed event should
impose no cost on the City. However, the written Proposed Agreement does not reflect
this. In its present form, the Agreement imposes these costs and potential costs upon the
City:
• Section 33 obligates the City to find and provide City property to a private entity for
commercial purposes. Under current Florida law, this would subject the property to
ad valorem taxes. The present wording of the Agreement (Section 33) precludes
the City from passing the ad valorem taxes on to Raceworks, thus the City would
have to pay an undetermined amount of annual ad valorem taxes.
Section 17 obligates the City to provide Raceworks with free storage of Raceworks
equipment. This would tie up approximately six (6) acres of City property for 25
years, imposing a substantial opportunity cost upon the City. Even at the very low
estimate of a $50,000 present annual value (per the Agreement), this is a forfeiture
by the City in excess of $1,250,000 over the 25 year term of the Agreement.
Sections 13,14 and 15 allow Raceworks to put up an "instrument" to "secure" Ci 's
advances, subjecting City to the risk of converting the "instrument" into cash. To
remove this risk, the option of the "instrument should be eliminated, and
Raceworks should simply be required to prepay the costs. If Raceworks is unable
or unwilling to prepay, then City funds will be used, and City is at risk. If Raceworks
does not possess the financial capacity or willingness to prepay and to perform
without the advancement of City funds, City should be concerned about
Raceworks' ability to perform, and should seek proposals for this 25 year
arrangement under an RFP process.
Section 33 precludes City and Trust from imposing any additional charges to
Raceworks for the full 2§ year term of the Agreement, regardless of whether City
or Trust incur additional costs and/or additional requirements from other
pageSV41ni4ted into the public
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governmental agencies. This protects Raceworks, and exposes City and Trust to
unlimited potential costs.
• Section 38 caps Raceworks' responsibility to provide insurance coverage at $25
million for the full 25 year term of the agreement. Should this become
insufficient, City and/or Trust would have the responsibility and expense of
providing the necessary additional insurance.
The primary financial benefit created by this Agreement is the right to conduct a
commercial activity on public property in the City of Miami for a period of 25 years. The
City of Miami is the principal creator of this benefit, as the City (along with the Bayfront
Trust) creates this right by granting it. Despite being the principal creators of the major
financial benefit of this Agreement, the City and the Trust will not share in the financial gain
created by this benefit. Section 47 allows transfer (sale) of these rights by Raceworks with
no compensation to City or Trust. City and/or Trust should share in at least 50% of this
financial benefit. Foregoing this benefit could cause a greater financial forfeiture by City
and/or Trust than any other provision of this Agreement.
City and Trust are each exposed to unnecessary financial forfeiture by the "Ticket"
fees described in Sections 4 & 5. These should be "Admissions" fees rather than "Ticket"
fees and should be charged for each admission. The $1.00 charge should apply to all
persons receiving credentials and passes of any nature, notjust to "tickets". Furthermore,
if Raceworks sells multiple -day tickets (i.e. a Thursday -Friday -Saturday ticket), then there
are three days of admissions, while City and Trust would each be entitled to only one
fee, rather than the three fees to which they should be entitled. An audit by an
independent CPA firm should be required.
City and Trust are exposed to unnecessary and unlimited financial risk by
Raceworks' non -disclosure of Raceworks' principals orfinancial capacity. Atthis point, City
does not know with whom City is entering this Agreement, and does not know of the
financial capability of such party(s). City should require the following schedules as exhibits
to the Agreement:
• EXHIBIT A: A listing of all officers and directors of Raceworks, as well as all persons
or entities owning an interest of 5% or greater in Raceworks. Without this, City and
Trust do not know with whom they are dealing, nor would City and Trust know if
Raceworks has been sold or transferred. Updated schedules should be submitted
at least annually, and at any time a material (5% or more) change in ownership
occurs.
EXHIBIT B: An audited financial statement (to include itemizations of all Assets,
Liabilities, and Net Worth; as well as a Statement of Operations) certified by an
independent Certified Public Accountant, Updated audited statements should
be provided annually. This EXHIBIT B should be available for review and analysis
Page 2 of 4
Submitted Into the public
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item _ on ZRAM � I r- 8 415
Walter Foeman
City Clerk
prior to the City entering into this Agreement, rather than "sixty days prior to the use
period". The importance of this prior review is found in the following areas of this
Agreement, which call into question Raceworks' financial capacity to perform:
Sections 13, 14, and 15 allow Raceworks to put up an "instrument" to secure
City's advances, placing City at risk. Raceworks should be sufficiently
capitalized to prepay costs, requiring no advances of City funds.
Sections 4 and 5 allow Raceworks to pay City's and Trust's Use Fees 30
days after each Race Event. Raceworks should be sufficiently capitalized
to pay these Use Feesrp for to each Race Event.
Sections 4 and 5 allow Raceworks to pay the "Ticket" Fees to City and Trust
60 days after each Race Event. Raceworks can hold City's and Trust's fees
for 60 days - a 60 day interest-free loan from City and Trust to Raceworks.
Raceworks should pay these fees to City and Trust not later than 2 weeks
following each Race Event.
Without the above ownership and financial disclosures, City is unable to determine
the ability of Raceworks to perform, and thus City assumes the risk of incurring potentially
substantial costs.
In Section 18, City agrees to "waive the fees for any licenses, authorizations, and
permits that Raceworks is required to obtain from the City". Should the City forfeit this
income?
To document the intent that the City should not incur costs nor be required to put
up funds, the "WHEREAS" section of the Agreement should contain wording to this effect:
"WHEREAS, Raceworks represents and warrants to City and
Trust that Raceworks has the expertise and financial capacity
to perform Raceworks' responsibilities under this Agreement
without reliance on City or Trust for any financial assistance
whatsoever, and Raceworks will seek no financial assistance
from City or Trust in any form, including any advances of funds
of any nature -----."
In the "WHEREAS" section (page 2), the Agreement speaks to Raceworks'
commitment for a "long term sanction agreement with the American LeMans Series to
stage a Race Event annually in downtown Miami and in Bayfront Park ----." This sanction
granted from American LeMans Series to Raceworks should be obtained and attached to
this Agreement as EXHIBIT C. The term of this Agreement between City, Trust, and
Raceworks should not run beyond the term of Raceworks' sanction agreement with
American LeMans.
Page gorWtted into the public
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Waiter Fo~ 01— 15
City Cie*
Sections 12 thru 15 speak to "initial" and "subsequent improvements and
modifications to the Race Course. These sections appear tantamount to pre --approval of
changes in the course layout, thus subjecting the City's entire area to possible inclusion
in the Race Course (due to relocations) for a period of 25 years.
Finally, throughout the Agreement, City and Trust agree that their approval of
numerous items for the benefit of Raceworks "will not be unreasonably withheld" for a
period of 25 years. The City and Trust should have absolute discretion on decisions
regarding their assets. Attached is an excerpt from the City of Denver's street race
agreement with promoter DGP. Please note the underlined portion of paragraph 18, which
speaks to the City of Denver's "absolute discretion". The citizens and taxpayers of the City
of Miami deserve to be equally protected.
Submitted into the public
record i co
rd ction withX
It
Walter Foemas,
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city Clork
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Fk.IG-fl6-2001 16 19 � - - P, 62/02
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C. Any election on the par, of City to terminate this Agreement must be in
v ri dng, properly executed by City and served upon DGP. No termination of this Agreement on
account of default by DGP shall bt; or become effective by operation of law o- otherwise, unless
and wail City shall have given such notice lb DGP. "
d. At no time shall the City be deemed to be is breach or defaW, undo- this
Agreement for the material breach or default in the performance or fulfillment. of any material
t=n, covenant or condition herein, unless and until DO? shall have given to City notice in
writing, specifying such default and City shall have failed to cure the default so specified within
thirty (30) days following said written notice (or, if City is diligently pursuing a cure, such
greater tirne as is allowed by DGP in its sole discretion).
C. Noweithstanding any odiv re-rmination provisions herein, City may, in its
sole discretion, Terminate this Agreement on or before October 1, 200: in the event DGP and
City have not agreed upon the Event Weekend for 2002 and 2003 pursuer: to Aricles 13 and
6(c) and on or before November 1, 2001 in the event,DGP has; failed io satisfy any of the other
requirements of Article 6 or if my other scheduling issues related to Sanctioning Body have not
been resolved by -that We.
f. The exclusive zights to occupy Ciry Streets granted to DGP under .Article
4 of this Agreement are coterminous witb this Agreement and will not be revoked unless in
accordance with this Article.
17. WAgn„$ighl and Reme-digs Nat Wgived. in rm event shall any performance by
either party hereunder constitute or be construed to be a waiver by such pasty of any breach of
erm, covenant, or condition or Cary default which may then exist on the part of thf. other putt',
and the rendering of such performance when any such breach or default shall exist shAll not
irnpoir or prejudice any right or remedy available to the Con -breaching party with respect to such
breach o: default; and no assent, expressed or implied; to a.^y breach of any one or mute terms,
covenants, or conditions of the Agreement shall be construed as a waiver of ruly succeeding n:
other bread:.
IS, Ass__ ieMe0tart�OnVez g int Ciry is not obligated or liable unatr this
Agreement to any party other It= DGP. DGP uuderstards and agrees that it shgjt not a!sigr cr
subcontract with respect to any of it; material rights, benefits, obligations or dirties as ownrr,
organi2er and orornoW of tht Denver Grand Prix ander this Agreement except upon prior written
const and approval of the City, which consent or approve', mabe withheld in the absolute
discretion of the City; and in the event any such assignmera or subcontracting s occtu, such
action shall not be construed to cre tc any contracraal relationship between City and such assignee
or subcontractor, and DO? shall -cmair fully responsible to City according to the terms of this
Agreement. This Agreement and Lha Parties 2.*nricipatc that DGP may pe:'lotm certain of its
obligations hereunder, such as Concessions and the desior, and cons=ction of Permanent
CV
Improvements, through a duly licensed subcontractor(s).
19. TermiaAljoo By DOP. :Notwithstanding arty other to ninadQn provision herein,
DGP may, in its sole discrtion, terminate this Agreemen: in the event its agreement with As". -,t
CUYJ..iii►<:�, ����ti i:.... public
(00ord in cunnectio yv th
Item ....2k orl �� !
Walter Foemai%
City 010( TOTAL P,02
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