HomeMy WebLinkAboutR-96-0463a
J-96-536
6/27/96
96- AM
RESOLUTION NO.
A RESOLUTION, WITH ATTACHMENT, APPROVING THE
EXECUTION OF AN ASSURANCE AGREEMENT, IN
SUBSTANTIALLY THE ATTACHED FORM, SUBJECT TO THE
MODIFICATIONS HEREIN PROVIDED, WITH METROPOLITAN
DADE COUNTY, MIAMI HEAT LIMITED PARTNERSHIP AND
BASKETBALL PROPERTIES, LTD., IN CONNECTION WITH THE
DEVELOPMENT OF AN ARENA IN THE MARITIME PARK
PROJECT, TO BE DEVELOPED ON CITY -OWNED PROPERTY;
AUTHORIZING THE CITY MANAGER TO EXECUTE THE SAME
UPON FULFILLMENT OF CERTAIN CONDITIONS.
WHEREAS, the City Commission has on this date approved the execution of an
Interlocal and Lease Agreement (the "Interlocal") between the City and Metropolitan Dade
County ("County") for the development of a Maritime Park Project on the City -owned
waterfront properties known as the FEC Property and the Bicentennial Park Property (the
"Project"); and
WHEREAS, the Project provides, upon satisfaction of certain conditions, for the
development of a professional sports franchise facility on the FEC Property (the "Arena");
and
WHEREAS, upon satisfaction of the conditions for the development of the Arena,
the County, Miami Heat Limited Partnership ("Team") and Basketball Properties, Ltd.
("Manager") will enter into a Development Agreement, a Management Agreement and a
License Agreement (collectively,
development, management
the "Related Agreements"), to provide for the
and operation of the
ATTACHMENT (5)
CONTAINED
CITY COMMISSION
MEETING OF
J U N 2 7 1996
Resolution No.
96- 463
Arena and the commitment of the Team to play its Home Games in the Arena for a term of
at least thirty (30) years; and
1
WHEREAS, the City is not a party to the Related Agreements; and
WHEREAS, upon execution of the Related Agreements, the parties to the Related
Agreements and the City desire to enter into an Assurance Agreement, substantially in the
form attached hereto (the "Assurance Agreement") in order to provide to the County and
the City various direct covenants of the Team and the Manager and to the Team and the
Manager, various direct covenants of the County and the City, contained in the Related
Agreements and the Interlocal;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF
MIAMI, FLORIDA:
Section 1. The recitals and findings contained in the Preamble to this Resolution
are hereby adopted by reference thereto and incorporated herein as if fully set forth in this
Section.
Section 2. The City Commission hereby approves the attached Assurance
Agreement among the City, the County, the Team and the Manager in connection with the
development of the Arena component of the Maritime Park Project, subject to the
following modifications:
a. Section 5.2.2 shall be amended to reflect that any cost involved in
satisfying any mitigation requirements imposed by DCA, the South
Florida Regional Planning Council or any other governmental entity in
connection with an amendment to the Downtown DRI, if required, shall
be paid by the City and the County 50%-50%.
b. Section 11.1 shall be amended to (i) require a minimum of 30 City of
Miami police officers for exterior security for Heat Home Games. The
96- 463
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cost of said security shall be paid by the Arena Manager and the City
shall reimburse to the Arena Manager 50% of said cost, (ii) the cost of
developing the Traffic Mitigation Plan and the Site Security Plan shall
be borne equally by the City and the County, provided, however, that in
no event shall the City's share exceed $100,000.
C. Section 14.1 and 14.1.2 shall be amended so that the obligations of
the City under each such section will be predicated on both the Arena
Manager and the Team not being in default.
Section 3. The City Commission hereby authorizes the City Manager to execute an
agreement, in substantially the form attached hereto, and as modified in accordance with
Section 2 above, subject to final review by the City Attorney and after fulfillment of the
following conditions:
a. Full execution of the Interlocal Agreement between the City and the
County.
b. Full execution of the Related Agreements.
Section 4. This Resolution shall be become effective immediately upon its
kSSED AND ADOPTED this 27th day of June, 1
ATTEST:
� J
mli1+ LLp�
WALTE OEMAN, CITY CLERK
3-
WIFPEW GORT, VICE -MAYOR
I
96- 463
PREPARED AND APPROVED BY:
j{ fhr,
VI f W
OLGA AMIREZ-SEI S
ASSIVrANT CITY ATTORNEY
APPROVED AS TO FORM AND CORRECTNESS:
-4-
96- A63
METROPOLITAN DADE COUNTY,
CITY OF MIAMI,
MIAMI HEAT LIMITED PARTNERSHIP,
and
BASKETBALL PROPERTIES, LTD.
A-63
TABLE OF CONTENTS
ASSURANCE AGREEMENT
Page
BACKGROUND . . . . . . . . . . . . . . . . . . . . . .
i
. 1
AGREEMENT . . . . . . . . . . . . . . . . . . . . . . .
. 2
1. Definitions . . . . . . . . . . . . . . . . . . . . .
. 2
2. Representations and Warranties . . . . . . . . . . . .
. 2
2.1 The Governmental Entities . . . . . . . . . .
. 2
2.1.1 Power . . . . . . . . . . . . . . . . .
. 3
2.1.2 Absence of Conflicts . . . . . . . . . .
. 3
2.1.3 No Violation of Laws . . . . . . . . . .
. 3
2.1.4 Litigation . . . . . . . . . . . . . . .
. 4
2.2 The Team and the Manager . . . . . . . . . . . .
. 5
2.2.1 Organization . . . . . . . . . . . .
. 5
2.2.2 Authorization -and Absence of Conflicts .
. 5
2.2.3 Litigation . . . . . . . . . . . .
. 6
2 .2 .4 No Payments . . . . . . . . . . . . . .
. '$
2.2.5 No Violation of Laws . . . . . . . .
. 6
1 2.2.6 The NBA . . . . . . . .' . . . . . . ' .
7
3. Term
. . . . . . . . . . . . . . . . . . . . . . . .
7
3.1
Commencement Date and Expiration Date . . . . . .
7
3.2
Abatement . . . . . . . . . . . . . . . . . . . .
10
3.3
Abatement of Home Games . . . . . . . . . . . . .
11
4. Team
Covenants . . . . . . . . . . . . . . . . . . . . .
11
4.1
Home Games . . . . . . . . . . . . . . . . . . . .
11
4.1.3 Breach of Home Games Covenant . . . . . .
13
4.2
Guaranteed Payments and Team Guaranty . . . . . .
14
4.3
The NBA . . . . . . . . . . . . . . . . . . . . .
15
4.4
Notice . . . . . . . . . . . . . . . . . . . . . .
16
5. The
Site, Land Use, Access and Related Matters . . .
17
5.1
Site Investigation and Title . . . . . . . . . .
17
5.1.1 Title . . . . . . . . . . . . . . . .
17
5.1.2 Existing Site Documents . . . . . . . .
17
5.1.3 City Approvals . . . . . . . . . . . . . .
17
5.2
Land Use . . . . . . . . . . . . . . . . . .
17
5.2.1 Regulatory, Land Use, and Zoning
Requirements and Limitations . . . . . . .
17
5.2.2 Downtown DRI . . . . . . . . . . . . . . .
18
5.3
Access to Entire Site . . . . . . . . . . . . . .
20
5.4
Utilities Availability . . . . . . . . . . . . .
21
5.5
Environmental, Geo-technical and Construction . .
_21
Termination of Guaranteed Payments and Team Guaranty . . 21
i
96- 463 47
MIT, .
7.
8.
Q
Challenges Affecting Economic Benefits . . . . . . . 22
Development and Construction of the Facility . . . . . . 23
Management and Operation of the Arena . . . . . . . . . 23
9.1 County and City Use . . . . . . . . . . . . 24
9.2 Announcements . . . . . . . . . . . . . . . . . . 26
10. Advertising, Concessions and Naming Rights . . . . . . . 27
10.1 Advertising and Concessions . . . . . . . . . . . 27
10.2 Exterior Advertising . . . . . . . . . . . . . . . 28
10.3 Naming Rights . . . . . . . . . . . . . . . . . . 28
11. Security, Traffic Control, Signage and Mass Transit 29
11.1 Security and Traffic Control . . . . . . . . . . . 29
11.2 Signage . . . . . . . . . . . . . . . . . . . . 31
12.
Parking . . . . . . . . . . . . . . . . . . . . .
32
12.1 Event Parking . . . . . . . . . . . . . . . . . .
32
12.1.1 Parking Garage . . . . . . . . . . . . . .
32
12.1.2 Port of Miami . . . . . . . . . . . . . .
33
12.2 Daily Parking . . . . . . . . . . . . . . . . . .
34
13.
Insurance . . . . . . . . . . . . . . . . . . . . .
34
14.
Non -Disturbance and Attornment and Non -Interference
34
14.1 Non -Disturbance and Attornment . . . . . . . . . .
34
14.2 No Interference . . . . . . . . . . . . . . . . .
37
15.
City Deposit to Reserve Account . . . . . . . . . . . . .
37
16.
Assignment and Transfer . . . . . . . . . . . . . . . .
38
16.1 Definition of "Transfer" . . . . . . . . . . . . .
38
16.2 Prohibition Against Assignment of Agreement by the
Manager . . . . . . . . . . . . . . . . . . . . .
38
16.3 Prohibitions Against Transfers of Interest in the
Manager . . . . . . . . . . . . . . . . . . . . .
40
16.4 Control . . . . . . . . . . . . . . . . . . .
43
16.5 No Release . . . . . . . . . . . .
44
16.6 Prohibition Against Assignment of Agreement or
Transfer of the. Arena by the Governmental
Entities . . . . . . . . . . . . . . . . . . . . .
44
17.
Extension of License at the Existing Arena . . . . . . .
45
18.
Mutual Covenants . . . . . . . . . . . . . . . . . . . .
46
18.1 Additional Documents and Approval . . . . . . .
46
18.2 Financing . . . . . . . . . . . . . . . . . . . .
47
18.3 Good Faith . . . . . . . . . . . . . . . . . . . .
47
18.4 No Termination . . . . . . . . . . . . . . . . . .
47
18..5 Cooperation . . . . . . . . . . . . . . . .
48
18.6 Notice of Matters . . . . . . . . . . . . I. . . .
49
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96- 463
18.7 Compliance with Laws - County . . . . . . . . . . 49
18.8 Compliance with Laws - City . . . . . . . . . . . 50
18.9 Compliance with Laws - Manager . . . . . . . . . . 51
18.10 Survival of Covenants and Warranties . . . . . . . 51
19.
Defaults, Remedies and Termination . . . . . . . . . . .
52
19.1
Termination of the Team License and the Other
I
Related Agreements . . . . . . . . . . . . . . . .
52
19.2
Termination by the Team and the Manager . . . . .
53
19.3
Termination by the County . . . . . . . . . . . .
53
'
19.4
Termination of this Agreement by the Team or the
County . . . . . . . . . . . . . . . . . . . . . .
55
19.4.1 Termination of the Development Agreement
55
19.5
Rights After Termination of Agreement . . . . . .
55
19.6
Events of Default . . . . . . . . . . . . . . . .
56
i
19.7
Specific Performance . . . . . . . . . . . . . .
57
19.8
Institution of Litigation Permitted by Section
20 . . . . . . . . . . . . . .
58
19.9
Rights and Remedies are Cumulative . . . . . . . .
59
!
19.10
Costs, Expenses and Fees . . . . . . . . . . . . .
59
19.11
Acceptance of Legal Process . . . . . . . . . . .
60
I
19.11.1 Service on the County. . . . . . . . . .
60
19.11.2 Service on the City
6,0
19.11.3 Service on the Team . . . . . . . . . . .
60
19.11.4 Service on the Manager . . . . . . ... . .
61
19.12
County and City . . . . . . . . . . . . . . . . .
61
20.
I
Mediation . . . . . . . . . . . . . . . . . . . . . . .
61
21.
Liability Limitation . . . . . . . . . . . . . . . . . .
64
21.1
The Governmental Entities . . . . . . . . . . . .
64
21.2
The Team and the Manager . . . . . . . . . . . . .
65
j 22.
Miscellaneous . . . . . . . . . . . . . . . . . . . . .
66
22.1
Notices
66
j
22.2
Entire Agreement . . . . . . . . . . . . . . . . .
68
22.3
Amendment . . . . . . . . . . . . . . . . . . .
68
22.4
Binding Effect . . . . . . . . . . . . . . . . . .
68
22.5
Waiver . . . . . . . . . . . . . . . . . . . . . .
68
22.6
Captions . . . . . . . . . . . . . . . . . . . . .
69
22.7
Construction . . . . . . . . . . . . . . . . .
69
22.8
Section and Exhibit References . . . . . . . . . .
69
22.9
Severability . . . . . . . . . . . . . . . . . .
69
22.10
Absence of Third Party Beneficiaries . . . . . . .
69
22.11
Business Day . . . . . . . . . . . . . . . . . . .
70
22.12
Other Documents . . . . . . . . . . . . . . . . .
70
22.13
Governing Law . . . . . . . . . . . . . . . . . .
70
22.14
Counterparts . . . . . . . . . . . . . . . . . . .
71
22.15
Time of Essence . . . . . . . . . . . . . . . . .
71
22.16
Relationship of Parties . . . . . . . . . . . . .
71
22.17
Savings . . . . . . . . . . . . . . . . . . .
• 72
22.18
[Intentionally Omitted] . . . . . . . . . . . . .
72
III
96- 463
22.19
Force Majeure . . . . . . . . . . . . . . . .
. . 72
22.20
Nondiscrimination . . . . . . , . . . . .
, . 74
-
j 22.21
Nondiscrimination Clause . . . . . . . . .
. . 74
22.22
Trade Secrets . . . . . . . . . . . . . . . .
. . 75
22.22.1 The Manager . . . . . . . . . .
. . 75
22.22.2 The Team . . . . . . . . . . . . . . .
. . 77
22.22.3 Exceptions . . . . . . . . . . . . . .
. . 78
22.23
No Duplicative Causes of Action . . . . . . .
. . 79
22.24
No Liability for Exercise of Police Power . .
. . 79
22.25
No Non -Compete . . . . . . . . . . . . . . . .
. . 80
22.26
Legal Opinion . . . . . . . . . . . . . . . .
. . 80
Exhibit 1 -
Assurance Agreement Definitions
Exhibit 4.2
- Form of Team Guaranty
Exhibit 14.1.3
- Form of Non Disturbance
I
i
and Attornment Agreement
iv
5C
96-- 463
MARITIME PARK ARENA
ASSURANCE AGREEMENT
ASSURANCE AGREEMENT dated as of 1 1996 among
Metropolitan Dade County, a political subdivision of the State of
Florida; the City of Miami, a municipal corporation of the State of
Florida; Miami Heat Limited Partnership, a Florida limited
partnership (the "Team"); and Basketball Properties, Ltd., a
Florida limited partnership and Affiliate of the Team ("Manager").
BACKGROUND
A. Simultaneously with the execution of this Agreement, the
County is entering into a Development Agreement and a Management
Agreement with the Manager to provide for the development and
management and operation of an Arena and the development of a
Parking Garage on the Site in the City being leased by the County
from the City pursuant to the Interlocal Agreement. The Arena,
Parking Garage and Site are collectively referred to as the
"Facility".
B. Also simultaneously with the execution of this
Agreement, the Team is entering into a License Agreement with the
County and the Manager providing for the Team to play its Home
Games in the Arena for a term of at least 30 years (the "Team
License").
C. Acting in their governmental capacities, the County and
the City have determined, respectively, that the construction and
operation of the Arena and the Parking Garage, the retention of the
Team in downtown Miami and the performance of this Agreement are in
1
51
96)- 463
the vital and best interests of the County and City and the health,
safety and welfare of their residents, and in accord with the
public purposes and provisions of applicable federal, state and
local laws and requirements. Among other things, such construction
and operation will support the development of the County and City,
their convention and entertainment industries and the local
economy, preserve downtown Miami as the home of a major
professional sports franchise, encourage the growth of cultural and
entertainment opportunities, and be an integral part of the
revitalization and resurgence of downtown Miami and a prominent
symbol of the vibrancy of Miami.,
D. This Agreement is executed in conjunction with the
Development Agreement, the Management Agreement and the Team
License to provide (a) directly to the County and the City
(individually a "Governmental Entity" and collectively the
"Governmental Entities") various direct covenants of the Team and
the Manager; and (b) directly to the Team and the Manager various
direct covenants of the Governmental Entities.
AGREEMENT
The parties agree as follows:
1. Definitions. As used in this Agreement, capitalized
terms have the respective meanings set forth in Exhibit 1, unless
otherwise provided in this Agreement.
2. Representations and Warranties.
2.1 The Governmental Entities. Each of the
Governmental Entities severally represents and warrants to the Team
N
1 52
96- 463
w
i
and the Manager that as of the date of this Agreement with respect
to itself only:
2.1.1 Power. It has full power and authority to
enter into this Agreement and those of the Related Agreements, if
any, to which it is a party. The consummation of the transactions
provided for in this Agreement and (in the case of the County) the
Related Agreements have been duly authorized by all necessary
governmental action by the Governmental Entity (other than the
various government approvals, licenses and permits which are
required for the development, construction, use and operation of
the Facility). The representative of the Governmental Entity
executing this Agreement and each of the Related Agreements, if
any, on behalf of the Governmental Entity is the Person duly
authorized to execute this Agreement and each other Related
Agreement being executed on behalf of the Governmental Entity, if
any, and has so executed this Agreement and those Agreements.
I 2.1.2 Absence of Conflicts Except as previously
disclosed to the Team and the Manager in writing, the execution,
delivery and performance of this Agreement and the Related
Agreements to which it is a party, if any, do not conflict with any
other agreements, instruments, judgments or decrees to which the
Governmental Entity is a party.
2.1.3 No Violation of Laws. Neither the
execution, delivery nor performance of this Agreement or any of the
Related Agreements to which it is a party, if any, violates its
charter documents, or its codes or any law, ordinance or resolution
3
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53
of such respective Governmental Entity. To its knowledge, it has
not received any notice as of the date of this Agreement asserting
any noncompliance in any material respect by it with applicable
statutes, laws, ordinances, rules and regulations of the United
States, the State of Florida, the County, the City, or of any other
state or municipality or agency with respect to the Site and the
transactions contemplated in and by this Agreement and (in the case
of the County) the Related Agreements. To its knowledge, it is not
in default with respect to any judgment, order, injunction or
decree of any court, administrative agency, or other governmental
authority which is in any respect material to the transactions
contemplated in and by this Agreement or (in the case of the
County) the Related Agreements. Any ordinance or requirement of
the City prohibiting the serving of beer, wine or other alcoholic
beverages to patrons of the Arena or on the Site other than
ordinances or requirements of general applicability which the City
may presently have shall be repealed by the City by the later of
the time set forth for such repeal in the Interlocal Agreement or
one year from the date of this Agreement.
2.1.4 Litigation. Except as otherwise disclosed
to the Team and the Manager in writing, to its knowledge, no suit
is pending which has been served upon the County Attorney or the
City Attorney (as applicable) or of which such Attorney has
knowledge before or by any court or governmental body seeking to
restrain or prohibit, or seeking damages or other relief in
connection with, the execution and delivery of this Agreement or
4
54
96- 463
(in the case of the County) the Related Agreements or the
consummation of the transactions contemplated in and by this
Agreement or (in the case of the County) or the Related Agreements
or which might materially and adversely affect the use and
1 operation of the Facility as contemplated in and by this Agreement
or (in the case of the County) the Related Agreements.
2.2 The Team and the Manacrer. The Team and the Manager
jointly and severally represent and warrant to the Governmental
Entities:
2.2.1 Organization. Each of them is a limited
partnership, duly organized and validly existing under the laws of
the State of Florida and has all requisite partnership power and
authority to enter into this Agreement and those of the Related
Agreements to which it is a party. Each of their respective
general partners is a corporation duly organized and validly
existing under the laws of the State of Florida, has all necessary
power to be the general partner of its respective limited
partnership and is in good standing under the laws of the State of
Florida.
2.2.2 Authorization and Absence of Conflicts. The
execution, delivery and performance by the Manager and the Team of
this Agreement and each of the Related Agreements to which the Team
or the Manager is a party have been duly authorized by all
necessary partnership action and all necessary corporate actions by
their respective general partners and will not violate their
respective Agreements or Certificates of Limited Partnership, the
5
96- 463
55
••111.,�
articles of incorporation or by laws of each of their general
partners (to the Manager's and Teams knowledge), the NBA
{ Constitution or Bylaws or any written rule, regulation or policy of
+ the NBA, or result in the breach of or constitute a default under
any loan or credit agreement, or any other agreement or instrument
to which either of them is a party including, without limitation,
the Team's Franchise Agreement and other agreements or by which
either of them or their respective assets may be bound or affected.
All consents and approvals of any Person which may be required in
connection with the execution of this Agreement by it have been
obtained.
2.2.3 Litigation. Except as otherwise disclosed
to the Governmental Entities in writing, to their knowledge, no
j
suit is pending against or affects either the Team or the Manager
which could have a material adverse affect upon its performance of
their obligations under this Agreement or any Related Agreement or
j either of their financial conditions or businesses.
i
2.2.4 No Payments. Neither the Team nor the
Manager has paid or given, nor will either of them pay or give, any
third person any money or other consideration for obtaining this
Agreement, other than normal costs of conducting business and costs
of professional services -such as the services of architects,
engineers and attorneys.
2.2.5 No Violation of Laws. Neither the Team nor
the Manager has received any notice as of the date of this
Agreement asserting any noncompliance in any material respect by
56
6
96- 463
Oil
the Manager or Team with applicable statutes, laws, ordinances,
rules and regulations of the United States, the State of Florida,
the County, the City or of any other state or municipality or
agency having jurisdiction over and with respect to the
transactions contemplated in and by this Agreement and the Related
Agreements. Neither the Team nor the Manager is in default with
respect to any judgment, order, injunction or decree of any court,
administrative agency, or other governmental authority which is in
any respect material to the transactions contemplated in and by
this Agreement or the Related Agreements.
2.2.6 The NBA. The NBA franchise held by the
Team is in good standing. No defaults or events of default exist
under the Team's Franchise Agreement with the NBA and no 'events or
conditions exist, which with notice or the passage of time, or
both, would constitute a default or event of default under the
Team's Franchise Agreement.
3. Term.
3.1 Commencement Date and Expiration Date. The term of
this Agreement shall begin upon its execution. Notwithstanding and
prevailing over any other provision in this Agreement or in any
Related Agreement, the term of this Agreement may be.suspended or
extended only pursuant to this Section 3, and may be terminated
prior to the Expiration Date only pursuant to Section 19. The
Expiration Date shall be on the June 30 which is the later of (a)
30 years after the June 30 which immediately follows the License
Commencement Date, or (b) the first June 30 following the scheduled
7
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57
the Manager or Team with applicable statutes, laws, ordinances,
rules and regulations of the United States, the State of Florida,
the County, the City or of any other state or municipality or
agency having jurisdiction over and with respect to the
transactions contemplated in and by this Agreement and the Related
Agreements. Neither the Team nor the Manager is in default with
respect to any judgment, order, injunction or decree of any court,
administrative agency, or other governmental authority which is in
any respect material to the transactions contemplated in and by
this Agreement or the Related Agreements.
2.2.6 The NBA. The NBA franchise held by the
Team is in good standing. No defaults or events of default exist
under the Team's Franchise Agreement with the NBA and no 'events or
conditions exist, which with notice or the passage of time, or
both, would constitute a default or event of default under the
Team's Franchise Agreement.
3. Term.
3.1 Commencement Date and Expiration Date. The term of
this Agreement shall begin upon its execution. Notwithstanding and
prevailing over any other provision in this Agreement or in any
Related Agreement, the term of this Agreement may be.suspended or
extended only pursuant to this Section 3, and may be terminated
prior to the Expiration Date only pursuant to Section 19. The
Expiration Date shall be on the June 30 which is the later of (a)
30 years after the June 30 which immediately follows the License
Commencement Date, or (b) the first June 30 following the scheduled
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57
final maturity date, in accordance with their terms (assuming no
prepayment, call or early redemption) of the indebtedness as to
which the Guaranteed Debt Service Payments are to be made pursuant
to Section 5.1.2 of the Management Agreement; provided, however, in
no event shall such date be
later than
35 years after
the June 30
which immediately follows
the License
Commencement
Date. The
Manager shall have two successive options to extend the term of
this Agreement on terms to be agreed upon by the County and the
Manager (and approved by the Board of County Commissioners of the
County ("Board") for the lesser of five years or one-half of the
number of full years less than 40 contained in the original term of
Z
this Agreement (if such number of years is an odd number, the first
option period will be rounded up to a full year and the second
period rounded down to a full year). In the event the Manager
desires to exercise an extension option, it shall give the County
written notice of such fact no less than two years prior to the end
of the then term and the County and the Manager shall use good
faith efforts to agree on the terms for the extended period. If
such agreement is not reached within 12 months prior to the end of
the then term or the Board does not approve such terms within the
one year time period, the option shall be null and void. No
exercise of an option shall. be effective if at the time of exercise
the Team or the Manager is in default of a material term under this
or any of the Related Agreements or the Team Guaranty. Within ten
days after the License Commencement Date, the parties shall confirm
in writing the License Commencement Date and the Expiration Date,
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which confirmation shall be attached to and become a part of this
Agreement. The Expiration Date shall be extended for a period
equal to the aggregate length of all Abatement Periods during which
the Arena cannot be operated by the Manager (i.e., as used in this
Agreement, such phrase means during such times as scheduled Home
Games could not be played as intended under the License Agreement
and/or other Events could not be held in the inner bowl of the
Arena) commencing after the License Commencement Date, but only to
the nearest full year so that the Expiration Date always occurs on
a June 30, provided, however, to the extent that the length of an
Abatement Period is (a) based upon a strike or lock -out of NBA
players, or (b) caused by the negligence or wilful misconduct of
( the Manager or the Team or their agents, independent contractors or
employees, such Abatement Period shall not be counted in
determining whether and the extent to which the Expiration Date is
to be extended. (Thus, as an example, there will be no extension
of the Expiration Date until such time as the aggregate length of
I
all Abatement Periods during which the Arena could not be operated
by the Manager, is at least 183 days; and the next extension of the
Expiration Date will not occur until the aggregate length of all
Abatement Periods is at least 548 days.) In no event, however,
shall the Expiration Date be extended beyond the term of the
Interlocal Agreement. For purposes of this Agreement, an Abatement
Period includes any period after the License Commencement Date
during which the obligations of the parties set forth in this
Agreement or any of the Related Agreements (other than the
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Guaranteed Obligations) are suspended. within 15 days after the
conclusion of any Abatement Period the parties shall confirm in
writing the date of commencement and the date of conclusion of such
Abatement Period and the change, if any, in the Expiration Date due
to such Abatement Period. Each confirmation required by the
preceding sentence shall be attached to and become a part of this
Agreement. The Related Agreements all contain similar provisions
as to Abatement Periods and the Expiration Date or License
Expiration Date. In the event of any disagreement between the
parties to this Agreement or any of the Related Agreements as to
the existence or the length of an Abatement Period and/or a change
in the Expiration Date, the parties shall take all actions
necessary to ensure that such matters are treated consistently
under all of such agreements.
3.2 Abatement. I£ the cause or the effect of an
Abatement Period prevents the playing of Home Games in the Arena,
then during the pendency of such Abatement Period, the Team shall
not be required to play the Home Games in the Arena. During any
Abatement Period, the Manager's obligations to pay or perform the
Guaranteed Obligations and the Team's obligation to pay or perform
under the Team Guaranty set forth in Section 4.2 shall continue
unabated; i.e., such payments, performance and guaranty shall be
absolute and unconditional and made without offset, to be
terminated only as provided in Section 6. To the extent any other
obligation of any party is rendered impossible by the cause of an
Abatement Period, such obligation shall abate. Within 15 days
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after the commencement of any Abatement Period, the party claiming
the right to abate any obligation under this Agreement due to the
.cause of such Abatement Period shall notify the other parties of
such claim and upon such notification may commence abating such
obligation. To the extent that a party giving such notice is also
a party to any of the Related Agreements, it shall simultaneously
make such claim under such Agreements and, even if not a party,
shall give notice of such claim to all (other) parties to such
Agreements. If the party receiving such notice under this
Agreement (or under a Related Agreement) disputes such claim, such
Idispute shall be a dispute under this Agreement and shall be
I
submitted to Mediation within ten days after receipt of such
notice.
i 3.3 Abatement of Home Games. If as a result of an
Abatement Period the Arena is unusable for playing Home Games and
i
the Team plays Home Games at a location other than the Arena, the
Team shall (a) use good faith efforts to play such Home Games at
another location in the City or the County, and (b) resume the
playing of Home Games in the Arena within one week following the
earlier to occur of expiration of the Abatement Period or the date
the Arena becomes usable for playing Home Games.
4. Team Covenants.
4.1 Home Games. The Team acknowledges and agrees that
the County and the City will be irreparably harmed by the transfer,
move or relocation of the Team to a location other than the Arena
at any time from or after the License Commencement Date and
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continuing during the term of this Agreement and that the covenants
of the Team in this Section 4.1 are a material inducement for the
Governmental Entities entering into this Agreement and the Related
Agreements to which they are a party. Accordingly the Team hereby
acknowledges and agrees as follows:
4.1.1 The City and the County do not have
adequate remedies at law for a breach of this Section 4.1.
4.1.2 From the License Commencement Date and
continuing during the term of this Agreement, the Team shall play
its Home Games only at the Arena and shall not play any of its Home
Games at any other location, except to the extent the Arena is
unusable for playing Home Games during an Abatement Period as
permitted by Sections 16, 17 and 23.19 of the Team License and
Sections 3 and 22.19 of this Agreement. From the date of this
Agreement and continuing during the term of this Agreement, the
Team's NBA Franchise shall not be transferred, moved or relocated
to any location other than Miami, Florida. Without limiting the
obligations of the Team under the preceding sentences, but subject
to the provisions of the Sections referred to in the second
preceding sentence, the Team shall be deemed to have failed to
.observe or perform the provisions of this Section 4.1 if any of the
following shall occur during the term of this Agreement:
4.1.2.1- It plays or takes steps to play
any of its Home Games after the License Commencement Date during
the term of this Agreement at any location other than the Arena.
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96- 463
4.1.2.2 It enters into any contract which
purports to obligate it to play any of its Home Games after the
License Commencement Date during the term of this Agreement at any
location other than the Arena.
4.1.2.3 It notifies the NBA of its intent
to play any of its Home Games after the License Commencement Date
during the term of this Agreement at any location other than the
Arena or requests NBA permission to play any of its Home Games
after the License Commencement Date during the term of this
Agreement at any location other than the Arena.
4.1.2.4 It enters into a contract or
agreement to transfer, move or otherwise relocate the Team's NBA
franchise to a location other than the Arena without the prior
written consent of the County.
4.1.2.5 It makes formal application to
the NBA for approval to transfer, move or otherwise relocate the
Teams NBA franchise to a location other than the Arena without the
prior written consent of the County.
4.1.2.6 It takes any action that
constitutes an anticipatory breach of this Section 4.1.
4.1.2.7 The Team's NBA franchise is
transferred, moved or otherwise relocated to any location other
than the Arena.
4.1.3 Breach of Home Games Covenant. In the
event of a breach by the Team of the provisions of this Section
4.1, the County shall be entitled to seek and obtain and the Team
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shall consent to, the entry of a temporary restraining order,
together with preliminary and permanent injunctive relief, from any
Court of competent jurisdiction to enjoin any such breach. The
Team hereby waives any requirement that the County post a bond or
other security in connection with obtaining such injunctive relief.
Notwithstanding anything to the contrary contained in this Section,
the Team shall have the right to take any or all of the otherwise
prohibited actions in this Section (a) if the Manager's obligation
to make Guaranteed Payments and the Team Guaranty are terminated as
provided in Section 6, or (b) if such actions are limited to
finding a site for the playing of Home Games during an Abatement
Period where the Arena is unusable or after the term of the Team
License. The obligations of the Team contained in this Section
shall be independent of all other covenants and conditions of this
Agreement and the Related Agreements and shall be absolute and
unconditional.
4.2 Guaranteed Payments and Team Guaranty. In Section
5.1 of the Management Agreement, subject to Section 5.7 of the
Management Agreement, among other things the Manager agreed that if
there is not sufficient Arena Revenue to pay all Operating Expenses
when due or to make a Guaranteed Debt Service Payment or Capital
Replacement Reserve Payment, the Manager will make such payments
from its separate funds and/or the monies to be provided by the
Team pursuant to this Agreement. In addition, pursuant to Sections
4.2.7 and 4.2.8 of the Management Agreement, the Manager agreed to
14
64 96- 463
perform repairs, maintenance and replacements to the Arena, whether
or not Arena Revenue was sufficient to pay the costs of such
repairs, maintenance and replacements, all as more particularly
described in such Sections. The Management Agreement provides that
all of such funds which are so provided will be treated as
Manager's Loans which will be repaid as provided in Section 5.2 of
the Management Agreement. By execution of this Agreement, the Team
guarantees payment and performance of the Guaranteed Obligations
(which term also includes the obligations of the Manager under
Section 4.13.2 of the Management Agreement), and agrees to timely
advance the funds necessary to make the Guaranteed Payments on a
timely basis as required by the Management Agreement and
simultaneously with the execution of this Agreement, the Team shall
deliver its guaranty of the Guaranteed Obligations to the County in
the form of Exhibit 4.2 (the "Team Guaranty"). Funds provided by
the Team pursuant to the Team Guaranty shall be provided in such
form as shall be determined by the Team, in its sole discretion;
provided, however, that the obligation to make the Guaranteed
Payments and to perform the Guaranteed Obligations shall in all
cases be direct obligations of the Team to the County
(notwithstanding the characterization of such payments, as between
the Team and the Manager, as Manager's Loans).
4.3 The NBA. The Team shall, throughout the term of
this Agreement, maintain its NBA franchise in good standing at all
times and shall perform all of its obligations under its Franchise
Agreement with the NBA. Within 120 days of the execution of this
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96- 4163-65
Agreement the Team shall obtain all NBA approvals that may be
required in connection with the Team's performance of its
obligations provided for in, and as contemplated by, this
Agreement, and shall provide the County with evidence reasonably
satisfactory to the County that all required approvals have been
obtained. In the event of a breach of its obligation contained in
this Section, the Team shall have 14 days to cure such breach after
written notice of breach is received from the County.
4.4 Notice. In addition to the obligations of the Team
under Section 4.1, the Team shall give no less than 30 days prior
written notice to the County regarding any move, transfer or other
relocation of the Team's NBA franchise to a location other than the
Arena or any sale, transfer, assignment or conveyance or other
transaction that would involve the transfer, move or relocation of
the Team to a location other than the Arena, if any such action,
without the consent of the County, would be in breach of the
provisions of this Agreement.
4.5 Suites. Throughout the term of this Agreement the
Manager, the County and the City shall each be entitled to the use
of one Suite at no charge and in connection with any Manager Event,
the County and the City shall also be entitled to complimentary
tickets in the Suite for all Events; provided, however, no tickets
shall be provided for Events not open to the public (any Event
(other than Community Events) for which tickets are not offered for
sale or otherwise to the general public). The Manager shall place
a sign in the Arena for each of the County and the City.
16
96- A63
W
5. The Site Land Use Access and Related Matters.
5.1 Site Investigation and Title.
5.1.1 Title. In the event there is a Title
Defect with respect to all or a portion of the Entire Site, the
City shall cure such Title Defect(s) so that the representation
with regard to title contained in the Interlocal Agreement will be
true and correct, and the County shall use good faith efforts to
assist the City in this regard.
5.1.2 Existing Site Documents. The City shall
deliver to the Manager all Existing Site Documents in its
possession or control within ten days of the execution of this
Agreement.
5.1.3 City Approvals. .By execution of this
Agreement, the City, in its capacity as owner of the Entire Site,
hereby consents to the Related Agreements to the extent such
d d th Interlocal A reement
consent is require un er e g
5.2 Land Use.
5.2.1 Regulatory Land Use, and Zoning
Requirements and Limitations. The City shall prepare, or cause to
be prepared in coordination with the Project Architect and shall
deliver to the Manager within thirty days after. Manager has
retained the Project Architect, a written analysis, for the use and
benefit of the Manager, of the land use and zoning restrictions
imposed by the County and the City that impact or affect the
design, development or construction of the Arena and the Parking
Garage, including without limitation, an Arena specific analysis
17
96- 463
67
prepared in consultation with the Project Architect of the
applicable building and zoning codes.
5.2.2 Downtown DRI. Immediately after the
execution of this Agreement, the City, in consultation with the
Manager and the County, and in accordance with the Development
Agreement shall commence and diligently pursue a determination by
the State of Florida Department of Community Affairs (the "DCA")
that the construction of the Arena, the Parking Garage, the
Maritime Park Complex and the Port Expansion will not constitute a
substantial deviation from the terms and conditions imposed by the
existing development order for•the Downtown Miami Area Wide DRI
recorded in Official Record Book 13752 at Page 1122 of the Public
Records of Dade County, Florida, as revised by Resolution Number
87-1149 recorded in Official Record Book 13752 at page 1154 of the
Public Records of Dade County, Florida and as amended by
stipulation recorded in Official Record Book 13752 at Page 1107 of
the Public Records of Dade County, Florida (the "Downtown DRI11) .
In the event that the City is unable to obtain from the DCA a
letter confirming that the development of the Arena, the Parking
Garage and the Port Expansion will not constitute a substantial
deviation from the Downtown DRI, within 60 days from the date of
this Agreement, the City, in consultation with the Manager and with
the County's assistance, shall negotiate a Pre Development
Agreement (the "Pre -Development DRI Agreement") which will allow
for the commencement of construction of the Arena and the Parking
Garage, pending the City reaching an agreement with the DCA for an
18
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96- 463
amendment to the Downtown DRI to allow for the construction of the
Arena and the Parking Garage and the Port Expansion. Any and all
tests and/or studies which the DCA, the South Florida Regional
Planning Council, or any other governmental authority may require
in connection with determining whether the Arena, the Parking
Garage and the Port Expansion constitute a substantial deviation
from the Downtown DRI, including without limitation, any and all
tests required in connection with obtaining an amendment to the
Downtown DRI, if required shall be paid by the City and by the
County. To the extent that an amendment to the Downtown DRI is
required, the City shall (to the extent the City has the power and
authority to do so) satisfy or cooperate with and assist the Counter
in satisfying any and all mitigation requirements imposed by DCA,
the South Florida Regional Planning Council, or any other'
governmental entity in connection with the amendment p^ovided,
however, the respective obligations of the City and the County,
with respect to any such mitigation requirements shall be limited
to the cost of improvements to their respective existing streets
within their existing rights -of -way, and the costs of their
respective signal changes, intersection improvements, driveway
improvements and carbon monoxide monitoring and shall not include
any other improvements that may be required such as ramps on
expressways or new roadways unless the City and the County are able
to obtain full funding for such improvements from the appropriate
State and Federal agencies (which the County and City agree to use
their good faith efforts to apply for and diligently pursue). The
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96- 463
costs incurred by the City and the County in connection with
performing tests and studies that DCA, the South Florida Regional
Planning Council, or any other governmental entity may require or
costs and expenses incurred in connection with satisfying any and
all mitigation requirements imposed by DCA, the South Florida
Regional Planning Council, or any other governmental entity,
subject to the limitation described above, shall be paid by the
City and/or the County as appropriate.
5 . 2 .3 Special Use Permit. The City shall use its
good faith efforts to issue, on an expedited basis, the Special Use
i
Permit referred to in Section 2.6.5 of the Development Agreement.
5.3 Access to Entire Site. The City hereby authorizes
the Manager and its consultants to enter upon the Site in order for
i
them to be able to perform various tests and studies of the Site,
as contemplated by the Development Agreement. In connection with
any such entry, testing and studies, the Team and the Manager
hereby jointly and severally agree to indemnify, protect, defend
and hold harmless, the City, its elected officials and its agents,
employees and/or contractors ("Indemnified Parties") from and
against any and all liabilities, losses, costs, damages, claims,
proceedings, actions and/or expenses (including reasonable
attorneys' fees, suffered or incurred by any of the Indemnified
Parties which in any way arise out of such entry, testing and or
studies. As a further condition to any such entry, the Team and/or
the Manager shall provide the County and the City with the
insurance certificates and other documentation required under
Section 14 of the Development Agreement evidencing that the
required liability insurance for the benefit of the Governmental
Entities is in place thereunder and is in effect. The Manager
shall also restore any damage to the Site caused as a result of
such entry, testing and/or studies.
5.4 Utilities Availability. The County and the City
shall use good faith efforts to attempt to promptly obtain, in the
form customarily issued, capacity letters confirming that there is
sufficient water, electric, sewer and gas capacity available at the
property line of the Site to serve the Facility or the County shall
pay for bringing such utilities to the property line; provided,
however, all costs arising from extensions of the utilities inside
the property line and their connection to the Facility shall be
Arena Costs.
5.5 Environmental. Geo-technical and Construction. To
the best of the knowledge of each Governmental Entity, except as
disclosed in the Phase I Environmental Assessment dated
September 13, 1994 (the "Assessment"), a true copy of which has
been furnished to the Manager, no condition at, on or under the
Site violates or may violate any Environmental Laws. The sole
remedy for breach of this representation would be the duty to
remediate as set forth in the Development Agreement.
6. Termination of Guaranteed Payments and Team Guarantv.
Notwithstanding anything to the contrary contained in this
Agreement, the obligations of the Manager to make the Guaranteed
Payments and perform the Guaranteed. Maintenance and the obligations
21
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96- 463
of the Team to perform all of its obligations under the Team
Guaranty shall terminate on the first to occur of:
6.1 Basketball Properties, Ltd. or its permitted
successor as the Manager under the Management Agreement is removed
by the County as the Manager (a) in breach of this Agreement or the
Management Agreement, or (b) in accordance with the terms of
'Section 16.7 of the Management Agreement without giving the Team
I
the option of being substituted in the place of Basketball
Properties, Ltd. or its successor.
6.2 The County terminates the Management Agreement or
the Team License in breach of the Management Agreement or the Team
License. •
6.3 The County or the City condemns the Arena for the
purpose of ousting the Team or the Manager and not for a valid
governmental purpose.
7. Challenges Affecting Economic Benefits. If any Person
(including any Governmental Entity) other than the Team, the
Manager or any of their Affiliates challenges this Agreement or any
Related -Agreement, and if due to such challenge (a) any provision
of this Agreement or any Related Agreement is held by a court of
competent jurisdiction to be invalid, unenforceable, ultra vires or
in violation of any law, and the omission of such agreement or
portion of such agreement materially diminishes the tangible and
quantifiable monetary economic benefits of the Team or the Manager,
and (b) the tangible and quantifiable monetary economic benefits
which the Team, the Manager or their Affiliates lose are conferred
22
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96- 463
upon or are received by the County, then the County shall pay those
benefits over to the Manager or the Team as applicable, to the
extent permitted by applicable law. This Section shall not apply
to Impositions and the County shall have no obligation to pay to
the Team or the Manager any Impositions received by the County.
8. Development and Construction of the Facility. The Manager
shall develop and construct the Facility in accordance with the
terms of the Development Agreement. The City shall use its best
efforts to:
8.1 During design, make available one senior
experienced plan reviewer to be available as needed during the
design and construction process to assist in identifying
requirements of the applicable building codes and processing the
construction documents.
8.2 During construction, make available a designated
senior inspector to be available when required.
9. Management and Operation of the Arena. The Manager shall
manage and operate the Arena in accordance with the terms of the
Management Agreement and in compliance with Applicable Law. As an
Operating Expense under the Management Agreement, the Manager shall
obtain all governmental licenses and permits required for its
management and operation of the Arena. The Manager shall comply
with all federal, state and local laws, statutes, ordinances and
regulations relating to the payment of Taxes and Impositions, file
tax returns and pay all Taxes, Impositions and charges when due.
23
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73
9.1 County and City Use. Except as provided to the
contrary in the Management Agreement, the County and the City shall
have the right to use the Arena for Community Events during each
Schedule Year and partial Schedule Year during the term, commencing
with the. Operations Start Date on any day the Arena is not
scheduled or reserved for a Manager Event. Except as otherwise
provided below, the County and the City may not book Community
Events more than 45 days before their scheduled dates. Subject to
cancellation for Manager Events booked up to 45 days prior to their
scheduled dates, Community Events may be booked with more notice to
the extent practicable. Notwithstanding, the foregoing, not more
z
than four Community Events to be held during the period from July
1 through September 30 in each calendar year may be booked up to
one year before their scheduled dates without being subject to
cancellation. Community Events may not be scheduled on dates
already booked by the Manager. All Community Events must be booked
with the Manager. Except as otherwise provided in this Agreement,
all revenue received in connection with Community Events from
parking (to the extent attributable to the 2,300 spaces in the
Parking Garage from which the Manager is entitled to revenue) , Soft
Concessions and permitted Advertising shall be included in Arena
Revenue. All other revenue derived from Community Events shall not
be included in Arena Revenue and shall be the sole property of the
County, the City or other sponsor of such event. The Manager shall
not charge rental or a license, use or other fee for a Community
Event. The Manager shall be reimbursed for incremental direct out-
24
96- 463
{
of -pocket operating expenses (i.e., expenses including, without
limitation, additional utilities, insurance and security,
operations and maintenance personnel costs, that would not be
incurred but for the Community Event ("Community Event Operating
Expenses") ) attributable to the use of the Arena for each Community
Event as specified in the License between the Manager and the
Community Event Sponsor, offset by the Arena Revenue earned from
the Community Event. The License to be entered into between the
Manager and the Community Event Sponsor shall be consistent with
the terms of this Section. In the event that the County or the
City and the Manager are unable to agree upon the amount which may
be owed relating to the use of the Arena for Community Events, such
dispute shall be submitted to Mediation. Payments by the County or
the City to the Manager for Community Event Operating Expenses owed
pursuant to the License for such Event which are not made in
advance of a Community Event shall be made within 30 days after the
Tatter of the date the Manager notifies the County or the City of
the nature and amount of such expenses or, if successfully
mediated, the date that Mediation determines the amount due. In
order to minimize the possibility that the Manager is not fully
reimbursed for the Community Event Operating Expenses for Community
Events by the Community Event Sponsor, the Manager shall have the
right to impose appropriate and reasonable terms and conditions on
the use of the Arena for Community Events to ensure appropriate
provision for expense reimbursement which shall be set forth in the
License for such Event provided such terms are not inconsistent
25
96 - A63 "
with this Section 9.1. In the event the Arena Revenue from a
L Community Event received by the Manager exceeds the Operating
Expenses attributable to that Community Event, the Manager shall
pay to the County the percentage of such excess which equals the
percentage of Arena Revenue from the Community Event derived from
the Parking Garage which is received by the Manager.
9.2 Announcements. Subject to the terms of any
applicable License between the Manager and an Event Sponsor, which
agreement may, for any Manager Event other than a Home Game,
prohibit the use of the Communication System on behalf of the
County and/or the City, the County, together with the City, shall
have the right, for an appropriate purpose, at least once during
each Manager Event to have the Manager, at no cost to the County or
the City, use the Communication System for disseminating public
service community announcements and announcements concerning future
Community Events at such reasonable times as are designated by the
Manager. The Manager, at the request of the County and/or the
City, shall use its good faith efforts to obtain authorization from
Event Sponsors for the Manager's use of the Communication System as
many times and at such times as may be reasonable and practicable
during Manager Events. During Community Events, the County and the
City shall have the right at their option to have the Manager use
the Communication System on their behalf for any purpose. Subject
to the terms of any applicable use agreement between the Manager
and a Community Event Sponsor, which agreement may prohibit the
Manager's use of the Communication System, the Manager shall have
26
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96- 463
the right to use the Communication System at least once during each
Community Event solely for disseminating announcements concerning
future Manager Events at such times as are permitted by the
Community Event Sponsor, and the County or the City, as applicable,
at the request of the Manager, shall use its good faith efforts to
permit the Manager's use of the Communication System as many times
as may be reasonable and practicable during Community Events.
i
10. Advertisinc7, Concessions and Naming Rights. All written
contracts executed by the Manager with respect to the Arena shall
be subject to the provisions of Sections 4.1.2-4.1.6 of the
Management Agreement.
10.1 Advertising and Concessions. From and after the
execution of this Agreement (such activities may already have begun
in anticipation of the execution of this Agreement, but shall be
Arena Costs), the Manager shall have the duty and sole right and
authority (except as otherwise provided in this Section) to
negotiate, execute and perform all contracts concerning
(a) Advertising, (b) market research, (c) the sale, promotion,
marketing and use of all names, trademarks, trade names, logos and
similar intellectual property rights relating to the Arena, and
(d) the operation of concessions for the sale of food, beverages,
souvenirs, novelties or programs at the Arena and the Parking
Garage. and on the Site, any one or more of which the Manager may
license, sell or otherwise transfer. All contracts negotiated and
executed by the Manager pursuant to this Section shall contain
Exculpatory Language. The Manage.r is also authorized to grant
27
96- 463 77
licensees the right to market Temporary Advertising in connection
with and during Events conducted by such licensees ("Licensee
Advertising"). Notwithstanding anything to the contrary which may
be contained in this Agreement, other than with respect to the
Arena and the Parking Garage as to which the Manager's rights are
exclusive, the Manager's rights under this Agreement and the
Related Agreements with respect to Advertising and the
distribution, dispensing and sale of Hard and Soft Concessions
shall not extend to any portion of the Site, if any, on which the
contemplated retail complex is constructed or developed or the Port
expansion and/or the terminals are or may be located.
10.2 Exterior Advertising. To the extent permitted by
applicable law, the County and the City shall use good faith
efforts to assure the Manager that any exterior advertising placed
within the boundaries of the Entire Site will not be restricted,
except by safety and code related regulations.
10.3 Naming Rights. The Manager shall have the
exclusive right to sell, license or otherwise grant the naming
rights to the Arena, subject to NBA regulations and subject to
obtaining the Board's approval of the name (except for the names
preapproved below), on such commercially viable terms and
conditions as the Manager shall determine. The County reserves the
right to disapprove and thus prohibit any name for the Arena that
the Board deems in bad taste or offensive to the County's image, or
in the reasonable opinion of the County Manager or the Board is a
source of embarrassment to the Dade County community.
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96- 463
Notwithstanding the foregoing, the name of any Fortune 1000 company
as of the date of this Agreement and the name of any bank, cruise
line or airline (or its parent company) presently doing business in
Dade County (with the exception of any company that does business
with Cuba in violation of United States law or County policy and
any tobacco or alcoholic beverage company) shall be deemed a County
approved name for purposes of this Section.
11. Security, Traffic Control. Signage and Mass Transit
11.1 Security and Traffic Control. The City shall be
responsible for providing all security outside of the Arena and on
the Site (other than the interior of the Arena, which shall be the
responsibility of the Team, and the interior of the Parking Garage,
which shall be the responsibility of the County or other operator
of the Parking Garage) which may be necessary as determined by a
Traffic Mitigation Plan and a Site Security Plan which shall be
jointly developed and approved by the County, the City and the
Manager (provided that the amount of exterior security to be
provided by the City pursuant to this Section shall further be
subject to the approval of, and any changes determined to be
necessary by, the City's Police Department, but the minimum level
of staffing shall be no less than 15 and no more than 30) to
control all Arena related. traffic on and off the Site and to
protect Arena patrons. The Traffic Mitigation Plan and the Site
Security Plan shall obligate the Manager to employ off -duty Miami
Police Department officers for security for the interior of the
Arena, at the Manager's cost, with the number of officers set forth
29
96- 463 .79
s�
in the Plan, but not to exceed ten (or such greater number as is
required by the City Code for the particular Event). The City and
County shall also work jointly with the State of Florida to
mitigate all traffic related issues so that ingress and egress of
traffic to and from Events do not exceed the capacity, at peak
times, of the roadways and other transportation modes leading to
and from the Site; provided, however, that the City's and County's
obligations with respect to traffic mitigation shall be limited as
provided below. The Traffic Mitigation Plan and the Site Security
j Plan shall also include, without limitation, providing City police
traffic patrols, security patrols, off -site signage and other means
of assuring patrons of the Arena with convenient and safe access,
subject to the limitations below. The costs of developing the
Traffic Mitigation Plan and the Site Security Plan shall be
allocated between the County and the City in accordance with the
Interlocal Agreement or as otherwise agreed between them and the
cost of implementing the Traffic Mitigation Plan and the Site
Security Plan shall be allocated among the County, the City and the
Manager as set forth in this Section and the Plans and shall not be
Arena Costs. In the event the Traffic Mitigation Plan and the Site
Security Plan fail to accomplish their objectives, such failure
shall not constitute a breach of the obligations contained in this
Section. Notwithstanding the foregoing, (a) the obligations
contained in this Section are subject to applicable law; and (b)
the City'`s and County's obligations with respect to improvements
required pursuant to the Traffic Mitigation Plan and as a result of
1
the mitigation measures imposed on the Facility in connection with
the, Downtown DRI, shall be limited to the costs of improvements to
existing City and County Streets within their rights -of -way as
required by the development order to be issued by the City
Commission relating to the Downtown DRI application filed by the
City relating to the development of the Site. The costs described
j in clause (b) will be further limited to the costs of signal
changes, intersection improvements and driveways. As to any other
i
j required improvements that may be required such as ramps or
i
expressways or new roadways, the City and the County shall use good
faith efforts to apply for funding for those improvements, from the
appropriate State and Federal agencies and without any obligation
to construct the same.
11.2 Sicrnacre. To the extent permitted by applicable
law, the County and the City shall include the full Arena Name and
i
logo on all directional signs controlled by each of them,
- ( respectively, that direct people to the Arena so as to make the
Arena easy to locate and reach by a first-time visitor (and to the
extent not permitted by law to include the full Arena Name and
Togo, shall include other appropriate markings as to clearly
identify the location of the Arena). Such signage shall be as
extensive and comprehensive as all present and presently announced
County and City (i.e., the Downtown Miami Comprehensive
Environmental Graphics/Signage Design and Implementation Program)
signage for the Existing Arena. The County and the City shall pay
the respective costs for such signage; provided, however, in the
31
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event the Arena Name and/or logo of the Arena is changed after the
Arena Name is initially chosen as provided in Section 10.3 and the
Arena Name and logo are included on the signs as provided in this
Section, the Manager shall pay the cost of changing such signs to
include the new Arena Name and/or logo, as applicable. This
Section shall not apply to any directional signs controlled by the
State of Florida or the federal government.
12. ParkinQ.
12.1 Event Parking.
12.1.1 Parking Garage. The County shall provide
the Manager, at no charge (other than the Manager's obligation to
pay its pro-rata share of Parking Garage Expenses as provided in
the Management Agreement), with 2,500 parking spaces (no more than
250 of which will be striped for compact cars) in the Parking
Garage on each day of an Event at the Arena during the period
commencing two and one-half hours before the scheduled start of the
Event and ending two and one-half hours after the Event. Such
spaces shall be used by the Manager for parking by Suite Licensees,
the holders of Premium Seating accounts, Team and Arena sponsors,
Team and Arena employees, and others as determined by the Manager.
The Manager shall have the right to determine in its sole
discretion, subject to agreement with its licensees, whether (and
the amount) to charge some or all persons who use such spaces
during such times (or to provide such parking without charge as an
amenity). The Manager shall have the right to issue parking
vouchers and/or tickets for parking in such spaces at such times
and the County shall honor all such vouchers and/or tickets. To
the extent the Manager determines to charge for such parking, at
each Event the County shall collect such charges without cost to
the Manager (other than the Manager's obligation to pay its pro-
rata share of Parking Garage Operating Expenses as provided in the
Management Agreement) and promptly remit the funds collected to the
Manager less the Manager's pro-rata share of the Parking Garage
Operating Expenses. All revenue generated from such spaces
received by.the Manager from the use of such spaces shall be Arena
Revenue. To the extent required by the lender of the debt for the
Parking Garage, the Manager shall make the Arena Revenue (less the
applicable Operating Costs) from the Parking Garage available as a
z
secondary pledge for the debt for the Parking Garage and shall
I
execute such documentation as may be necessary or requested by the
lender for the Parking Garage to evidence the secondary pledge.
i 12.1.2 Port of Miami. As part of its traffic
mitigation plan, for all Events the County shall make available for
persons attending the Events (a) 2,000 parking spaces at the Port
of Miami in well -lit and patrolled parking lots on an as needed
basis, and (b) frequent complimentary shuttle service to and from
the Arena during the period commencing two hours before the
scheduled start of the Event and ending two and one-half hours
after the Event. in connection with its marketing of Suites,
Premium Seating and/or Personal Seat Licenses, the Manager shall
use good faith efforts to market, on terms specified by the County,
the 2,000 parking spaces at the Port; provided, however, such
33
96- 463 83
i
obligation shall be after and subordinate to the marketing and sale
of the parking spaces provided for in Section 12.1-1. The County
may charge for and retain all revenue from such parking.
12.2 Daily Parkincr. Beginning no later than the
Operations Start Date, the County shall provide the Manager at all
times, at no charge, with not less than 200 reserved parking spaces
(no more than 25% of which will be striped for compact cars) in the
Parking Garage for use by the Manager, Team personnel, ticket
buyers and Team and Arena visitors. Such spaces shall be located
as provided in the Parking Garage Construction Documents provided
for in the Development Agreement and shall count as part of the
2,500 spaces required to be provided pursuant to Section 12.1.i:
To the extent construction of the Parking Garage makes the 200
parking spaces available earlier than the operations Start Date,
the obligations set forth in this Section shall commence on the
date they become available.
13. Insurance. Section 9 of the Management Agreement and
Section 15 of the Team License are incorporated into this Agreement
as though fully set forth in this Agreement.
14. Non -Disturbance and-Attornment and Non -Interference.
14.1 Non -Disturbance and Attornment.
14.1.1 Non -Disturbance of the Manager. The City
agrees that during the term of this Agreement and the Related
Agreements, so long as the Manager is not in default under any of
such agreements beyond any applicable grace periods, the Manager's
rights with respect to the Arena, the Parking Garage and the Site
shall not be disturbed and the Manager's rights and privileges
under this Agreement and the Related Agreements shall not be
diminished or interfered with by the City upon the termination or
cancellation of the Interlocal Agreement, and the City shall not
I
.join the Manager as a party defendant in any proceeding to
terminate or cancel the Interlocal Agreement.
14.1.2 Non -Disturbance of the Team. The City
agrees that during the term of this Agreement and the Team License,
I so long as the Team is not in default under either of such
Agreements beyond any applicable grace periods, the Team's rights
with respect to the Arena and the Parking Garage shall not be
disturbed and the Team, s rights and privileges under this Agreement
and the Team License shall not be diminished or interfered with by
the City upon any termination or cancellation of the Interlocal
i
Agreement, and the City shall not join the Team as a party
defendant in any proceeding to terminate or cancel the Interlocal
. Agreement.
14.1.3 Attornment. Upon the proper termination or
cancellation of the Interlocal Agreement in accordance with its
terms, the Team and the Manager agree to attorn to and accept the
rights of the City as if the City was the County under the Related
Agreements and all other documents executed by the Team and the
County in connection with the Related Agreements. Upon the proper
termination or cancellation of the Interlocal Agreement in
accordance with its terms the County acknowledges that it will have
no further rights under the Related Documents and that same shall
35
/16�q-
85
be deemed to be transferred to the City. The Team, the Manager,
the County and the City agree to enter into a Non -Disturbance and
Attornment Agreement in the form of Exhibit 14.1.3 upon the
execution of this Agreement.
14.1.4 Status of Interlocal Agreement. The City
and the County hereby certify to the Manager that (a) there are no
defaults on the part of either the City or the County under the
Interlocal Agreement, (b) the Interlocal Agreement is a complete
j, statement of the agreement of the City and the County with respect
to the development and use of the Entire Site, (c) the Interlocal
Agreement is in full force and effect, and (d) all conditions to
the effectiveness or continuing effectiveness of the Interlocal
Agreement required to be satisfied as of the date hereof have been
satisfied, other than the City's obligation to repeal the ordinance
affecting a portion of the Entire Site banning alcoholic beverages,
which is a condition subsequent to the Interlocal Agreement.
14.1.5 Notice to Manager. The City shall send
to the Manager a copy of all notices sent by the City to the
County, or received by the City from the County pertaining to a
default under the Interlocal Agreement.
14.1.6 Right to Cure. The Manager shall have
the right, but not the obligation, to cure any 'default by the
County under the Interlocal Agreement, and the City shall accept
such performance by or at the instance of the Manager as if the
same had been made by the County. The City shall notify the
Manager of any default by the County which would entitle the City
36
96- 463
to cancel the Interlocal Agreement. Notwithstanding any provision
of the Interlocal Agreement, no notice of cancellation or
termination of the Interlocal Agreement shall be effective unless
the Manager has received the notice as provided above and has
failed within 30 days of the date of such notice to cure such
default, or if such default cannot be cured within 30 days, has
failed to commence and diligently prosecute the cure of the
County's default which gave rise to such right of cancellation or
termination.
14.2 No Interference. Any proprietary event within one-
half mile of the Arena or the attendance at which could -block or
make difficult access, ingress or egress to and from the Arena or
Parking Garage, conducted by any Governmental Entity or at the
direction of a Governmental Entity or any event for which a
Governmental Entity issues a license or permit shall be conducted
in such a manner so that (a) there shall be at least one point of
access to and from the Arena and the Parking Garage to be used for
commercial purposes for the Manager and the Manager's employees,
vendors, suppliers and licensees; and (b) during the period
commencing four hours immediately before any Manager Event and
terminating four hours immediately after such Manager Event there
shall be public access to and from the Arena and the Parking
Garage.
15. City Deposit to Reserve Account_. Upon the City's receipt
of each annual payment of rent from the County pursuant to the
Interlocal Agreement, the City shall deposit $3,000,000 from such
37
96- A-63 87
rental payment into a reserve account established by the County for
the Arena Bonds. The City shall make deposits from such rental
payments until the City has deposited a total of $9,000,00 into
such reserve account. In the event the Development Agreement is
L
terminated prior to the issuance of the Arena Bonds, the County
shall be entitled to retain all of the principal deposited by the
City into such reserve account, and 500-. of the interest earned on
such principal amount shall be paid to the City and 500 of such
interest shall be paid to the County. In the event the Development
i
Agreement is not terminated prior to the issuance of the Arena
Bonds and any funds remain in such reserve account after the
redemption or retirement of all of the Arena Bonds, then the County
shall be entitled to retain all of the principal deposited by the
City which remains in such account after such redemption or
retirement, and 500 of the interest earned on such principal shall
be paid to the City and 5011 of such interest shall be paid to the
County.
16. Assignment and Transfer.
16.1 Definition of "Transfer". As used in this
Section 16, the verb "transfer," in whatever form, number or tense,
shall mean, as the case may be, to directly or indirectly assign,
sell, convey, transfer, pledge, encumber or in any manner use as
collateral, or otherwise to dispose of voluntarily or
involuntarily.
16.2 Prohibition Against Assignment of Agreement by the
Manager. The Manager shall not transfer, or attempt to transfer,
38
88 96- 463
this Agreement or any Related Agreement, or any right contained in
this Agreement or any Related Agreement prior to the Operations
Start Date or to a Conflicted Person and any such transfer or
attempted transfer shall be void ab initio. In all other cases, the
Manager shall not transfer or attempt to transfer this Agreement or
any Related Agreement or any rights contained in this Agreement
without the prior written approval of the County. Any such
approval shall only be given by the County if such transfer is
deemed by the County to be in the best interests of the County to
carry out the purposes of this Agreement and the Related
Agreements, and if the proposed transferee has, in the opinion of
the County, the financial capability and overall competence to
operate the Arena in accordance with the Management Agreement and
is otherwise approved by the County; provided, however, subject to'
satisfaction of the condition contained in the next sentence, the
County shall approve a transfer of this Agreement and the Related
I
Agreements to any Person or Affiliate of such Person who
simultaneously with such transfer acquires directly or indirectly,
in a transaction approved by the NBA, the controlling interest in
the Team or the NBA franchise owned by the Team and as a condition
to the County's approval, the Manager shall provide the County with
evidence satisfactory to the County that the proposed transfer has
been.approved by the NBA. Approval by the County of any transfer
shall be conditioned upon such transferee executing and delivering
to the County its agreement, in form and substance satisfactory to
the County, to assume the rights and obligations transferred to the
39
96- 463
PW
transferee and to keep and perform all provisions of this Agreement
and the Related Agreements to the extent the transferee would be a
party to such instruments. Any transfer or attempted transfer of
this Agreement or the Related Agreements or rights under this
1 Agreement not in full compliance with this Section 16 shall be
void. Notwithstanding any consent which may be given by the
County, should a person approved by the County as provided in this
Section become a Conflicted Person, the County shall have the right
i
to terminate this Agreement on 180 days' notice if the conflict is
not removed within such time period.
16.3 Prohibitions Acgainst Transfers of Interest in the
Manager. "
I 16.3.1 The Manager shall not permit any Investor
in the General Partner of the Manager to transfer any portion of
such Investor's Interest in the General Partner, without the
express prior written consent of the County, other than the
following permitted transfers:
16.3.1.1 A transfer by an Investor of all
or a portion of the Investor's Interest in the General Partner of
the Manager to an existing Investor, a member of the Immediate
Family of an Investor or an Affiliate of any such Persons.
16.3.1.2 A transfer of an Investor's
Interest in the General Partner occasioned by the bankruptcy,
death, or divorce of such Investor.
16.3 .1.3 A transfer of all or a portion of
an Investor's Interest in the General Partner if the effect of the
transfer will not result in a change in Control of the General
Partner or the Manager.
16.3.1.4 A transfer of an Investor's
Interest in the Manager made in connection with an NBA -approved
transfer of such Investor's interest in the Team, provided that the
transferee of such Interest in the Manager is the transferee
approved by the NBA for the transfer of such interest in.the Team
or an Affiliate of such transferee and the County shall have been
provided with evidence satisfactory to the County that the transfer
of the interest has been approved by the NBA.
16.3.1.5• Any redemption of an Investor's
i y
Interest in the Manager.
16.3.1.6 Any involuntary transfer pursuant
to the terms of, or in the exercise of rights under, any collateral
assignment, pledge, security interest, lien or encumbrance,
provided that any transferee of an Interest in the Manager pursuant
to this Section 16.3.1.6 may not transfer any portion of such
interest in the Manager without the prior written approval of the
County.
41
96- 463
91
16.3.1.7 Any involuntary transfer by
operation of law.
16.3.2 The County shall act in good faith in
exercising its rights pursuant to Sections 16.2 and 16.3.1 to
approve any transfer.
16.3.3 Prior to the execution of this Agreement
the Manager has identified and disclosed to the County the
Manager's General Partner s) and limited partner (s)I and prior to
any proposed transfer after the execution of this Agreement, shall
identify and disclose the identities of every other Person who
would pursuant to such proposed transfer become an Investor in the
General Partner and the nature and the extent of the Interest in
the General Partner to be acquired by such Person. The Manager
shall submit to the County instruments and legal documents
I necessary to disclose such identities and the nature and the extent
of such Interests.
16.3.4 The Manager shall indemnify and hold the
County and the City and their elected and appointed officials,
officers, employees, agents, consultants and independent
contractors harmless (irrespective of the termination of this
Agreement) for, from and against any and all liabilities, suits,
obligations, fines, damages, penalties, claims, costs, charges and
expenses (including reasonable attorneys, fees and costs) asserted
by or for any party claiming a right, interest or ownership in this
Agreement or any Related Agreement through or with the Manager and
42
96- 463
its partners arising out of or in connection with relationships
entered into by the Manager or its partners with such other party.
16.4 Control. The Team and the Manager hereby certify
that as of the date of this Agreement, a Person who is a member of
the Immediate Family of Micky Arison (an "Arison Family Member")
controls the Team and the Manager. As used in this Section, the
term "control" means the exclusive power, without the consent or
approval of any other Person who is not a member of the Arison
Family, to direct and make any and all decisions with respect to
J the management, operation and/or ownership of anothe
r Person.
Notwithstanding anything to the contrary in this Agreement or in
any other Related Agreement, without the prior written consent of
the County, (a) no Person may transfer, in one' or more
transactions, any direct or indirect ownership interests in the
Manager or the Team or the General Partner or in the general
partner of the Team, if as a result of such transfer or transfers,
control of the Team or the Manager no longer resides in one or more
Arison Family Members; and (b) neither the partnership agreements
of either the Team or the Manager, or the articles, bylaws, or
other governing documents of the General Partner, or the general
partner of the Team shall be modified or amended in any manner
which would result in control of the Manager or Team no longer
residing in an Arison Family Member, although nothing contained in
this Agreement shall be deemed to prohibit any transfers of direct
or indirect ownership interests in the Manager or the Team by an
Arison Family Member if the transfers are to any Person or
43
93
9&'- A63
-approved transfer Affiliate of a Person in connection with an NBA
of the Team and the County is provided with evidence satisfactory
to the County that the transfer has been approved by the NBA, prior
to such transfer.
16.5 No Release. No transfer of this Agreement, the
1 Related Agreements, or any interest in such agreements or any
director indirect ownership interests in the Manager or the Team
shall be deemed to release the Team and/or the Manager from any of
their respective obligations under this Agreement, any Related
Agreements to which they are a party or the Team Guaranty or the
Development Agreement Guaranty.
16.6 Prohibition Against Assignment of Agreement or
Transfer of the Arena by the Governmental Entities. The County and
the City shall not transfer or attempt to transfer this Agreement,
1 any rights contained in this Agreement or any Related Agreement,
the Arena, or any rights in the Arena, and any such transfer or
attempted transfer shall be void; provided, that this Section shall
not act as a prohibition against (a) any formal transfer to a
` financial institution, trustee or fiduciary in furtherance of any
debt financing or refinancing by the County or the City, or the
engagement of a third -party manager of the Parking Garage so long
as such transfer and/or. engagement does not increase the
Impositions with respect to the Arena, the Manager, the Team or any
of their Affiliates; (b) any transfer or assignment by the County
of the right to manage the Parking Garage, subject to the rights of
the Manager and the Team with respect to the Parking Garage as set
44
96- 463
forth in this Agreement and the Related Agreements, to the Off
Street Parking Authority or other qualified operator; (c) any
transfer of the Arena, the Parking Garage, this Agreement or any
rights and/or obligations under this Agreement required by
operation of law or by any term or provision of the Interlocal
Agreement; or (d) any transfer or assignment by the County to
(i) the City, or (ii) with the consent of the Manager, which shall
not be unreasonably withheld, conditioned or delayed, any other
governmental entity or authority.
17. Extension of License at the Existing Arena. If the Arena
being constructed pursuant to the Development Agreement will not be
available to the Team commencing with the beginning of the 1998-95
Basketball Season, to the extent that the terms by which the Team
agrees to continued use of the Existing Arena do not provide the
1
same economic terms as those for the Team's current use of the
I Existing Arena (except that the fee paid by the Team for the use of
the Existing Arena may increase by up to ten percent), the County
shall reimburse the Team for all verifiable increased costs which
the Team may incur (except for such increase, not to exceed ten
percent, in the use fee) and/or for all revenue the Team may lose
by virtue of the Team's continued use of the Existing Arena for the
1998-99 Basketball Season on terms which are less favorable to the
Team than the terms of the Team's current License for the 1997-98
Basketball Season at the Existing Arena. Such terms include,
without limitation, rent, advertising, suites, concessions and
I
staffing and security costs. Notwithstanding the above, the
45
96- 463 95
County's obligation pursuant to this Section shall not exceed $6
million. If the Team shall demand payment from the County under
this Section 17, then the Team shall deliver to the County a
statement prepared by an independent certified public accountant
setting forth the calculation of the amounts owed to the Team under
this Section 17 and containing reasonable back-up information
! (including, without limitation, copies of the Team's licenses at
the Existing. Arena for the 1997-98 Basketball Season and the
1998-99 Basketball Season). Notwithstanding anything else
contained in, and prevailing over any other provision of this
Agreement or the Related Agreements, other than Sections'9.11.1.1
and 9.11.1.2 of the Development Agreement, the County shall have no
!�! obligation to the Team or the Manager for increased costs or
i
diminished revenue associated with the Team's prolonged stay in the
Existing Arena through the 1999-2000 Basketball Season or beyond.
18. Mutual Covenants.
18.1 Additional Documents and Approval. The parties,
whenever and as often as each shall be reasonably requested to do
so by another party, shall execute or cause to be executed any
further documents, take any further actions as may be reasonably
necessary or expedient in order to consummate the transactions
provided for in, and to carry out the purpose and intent of, this
Agreement (in the case of the County) each of the Related
Agreements. The parties further acknowledge, however, that any
material changes or amendments to this Agreement or any Related
46
96- 463
Agreement may need to be approved by the Board and the Commission
to the extent required by applicable law.
18.2 Financing. The parties recognize that the
additional parties with which one or more of them may be dealing in
connection with the implementation of the finance plan for the
Arena and the Parking Garage as set forth in the Development
Agreement and/or for the Manager to finance the Manager
Contribution and/or for the County to finance the Parking Garage
may require material changes to this Agreement and the Related
Agreements. The City shall make such changes to this Agreement and
the other parties shall make such changes to this Agreement and to
the Related Agreements as may reasonably be necessary to
accommodatethe implementation of the finance plan and the
Manager's financing as well as the financing of the Parking Garage;
provided, however, no party shall be required to fundamentally
change the reasonably anticipated economic effects on such party of
this Agreement and the Related Agreements. The parties further
acknowledge, however, that to the extent required by applicable law
any material changes or amendment to this Agreement or any Related
Agreement must be approved by the Board and the City Commission of
the City (the "Commission").
18.3 Good Faith. In exercising its rights and fulfilling
its obligations under this Agreement and each of the Related
Agreements, each of the parties shall act in good faith.
18.4 No Termination. No party shall terminate this
Agreement on the ground of an ultra vires act or for any illegality
II.
or on the basis of any challenge to the enforceability of this
Agreement, except as otherwise permitted in this Agreement or in
the Related Agreements. Subject to the preceding sentence, no such
I challenge may be asserted by any party except by the institution of
a declaratory action in which all parties to this Agreement are
parties.
18.5 Cooperation. The parties shall individually
contest any challenge in which the Facility, the design,
construction, financing, leasing or operation of the Facility or
i
this Agreement or any of the Related Agreements is placed in issue
or questioned by any party or entity whatsoever, including all
appellate proceedings, the purpose of such litigation being to
estop, hinder or delay the acquisition of the Site or the
negotiation, execution or implementation of this Agreement or any
i
of the Related Agreements or other agreements involving any of the
County, the Team and the Manager ("Challenge"), whether asserted by
a taxpayer or any Person. The parties shall strive in good faith
to agree jointly upon counsel to defend any such Challenge. Any
legal fees, costs and other expenses of the Team and the Manager in
connection with any such Challenge shall be the responsibility of
the Team and the Manager, respectively. Any legal fees, costs and
other expenses of a Governmental Entity in connection with any such
Challenge shall be the responsibility of the Governmental Entity.
Furthermore, the parties shall take all ministerial actions and
proceedings reasonably necessary or appropriate to remedy any
apparent invalidity, lack or defect in authorization, or
illegality, or to cure any other defect, which has been asserted or
threatened to the extent, with respect to the County, any such
action does not otherwise require consent of the Board and/or, with
respect to the City, the Commission. Notwithstanding anything to
the contrary contained in this Section, the obligations of the City
under this Section are limited to Challenges related to the City's
,obligations under this Agreement.
18.6 Notice of Matters. Should any party receive
knowledge about any matter which may constitute a breach of any of
its warranties or covenants set forth in Section 2 which arises
after the date of this Agreement, it shall promptly notify the
other parties of the same in writing.
18.7 Compliance with Laws - County. During the term of
this Agreement, the County shall comply with all applicable laws,
ordinances, rules and regulations relating solely to its ownership
- I of the Arena and its ownership, management, operation and use of
the Parking Garage, but not with respect to the use, operation,
development, occupancy and/or construction of the Arena (which
shall be the responsibility of the Manager, except as specifically
provided below). The County in its capacity as owner of the Arena
shall execute such documents and file such documents and reports as
may be necessary to enable the Manager to obtain and maintain, at
the cost of the Manager (as part of Operating Expenses), all
necessary permits and licenses that are required of an owner of the
Arena. The County shall be responsible at all times for causing
the Parking Garage to be in compliance with all applicable laws,
49
96- 463 19
ordinances, rules and regulations, all at the County's sole cost
and expense. The County shall obtain and maintain all necessary
permits and licenses that are required in connection with the
operation and use of the Parking Garage. With regard to any entry
by the County into the Arena for any purpose, the County shall
comply with all applicable laws, ordinances, rules and regulations
relating to such entry. With regard to the County' s use of its
Suite, the County shall comply with all applicable laws,
ordinances, rules and regulations (including rules and regulations
of the Manager applicable to the use of all Suites). The County
shall obtain all necessary permits and licenses required for the
conduct of Community Events and shall comply with all applicable
laws, ordinances, rules and regulations (including rules and
regulations of the Manager applicable to the conduct of Events at
the Arena) relating to Events.
18.8 Compliance with Laws - City. During the term of
this Agreement, the City shall comply with all applicable laws,
ordinances, rules and regulations relating solely to its ownership
of the Site. The City in its capacity of the owner of the Site
shall execute such documents and file such documents and reports as
shall be necessary to enable the Manager to obtain and maintain, at
the cost of the Manager, all necessary permits and licenses that
are required of an owner of the Site. With regard to any entry by
the City to the Arena for any purpose, the City shall comply with
all applicable laws, ordinances, rules and regulations relating.to
such entry. With regard to the City's use of its Suite, the City
oil]
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shall comply with all applicable laws, ordinances, rules and
regulations (including rules and regulations of the Manager
applicable to the use of all suites). The City shall obtain all
necessary permits and licenses required for the conduct of
Community Events and shall comply with all applicable laws,
ordinances, rules and regulations (including rules and regulations
of the Manager applicable to the conduct of Events at the Arena)
relating to Events.
18.9 Compliance with Laws - Manaaer. During the term of
this Agreement, the Manager, in connection with its use and the
exercise of its rights with respect to the Arena, shall comply with
all applicable laws, ordinances, rules and regulations relating to
such use and exercise and the Manager shall'be responsible at all
times for causing the Arena to be in compliance with all applicable
laws, ordinances, rules and regulations, all at the Manager's sole
cost and expense, except for the County's ownership of the Arena or
for Community Events which shall be the responsibility of the
County and/or the City. The Manager shall obtain and maintain all
necessary permits and licenses that are required in connection with
the operation and use of the Arena.
18.10 Survival of Covenants and Warranties. All
covenants, representations and warranties contained in this
Agreement shall survive the execution and delivery of this
Agreement. No action taken pursuant to or related to this
Agreement, including, without limitation, any investigation by or
on behalf of a party shall be deemed to constitute a waiver by the
f 51
I
96A63
101
party taking such action of compliance with any representation,
warranty, condition or agreement in this Agreement.
19. Defaults, -Remedies --and Termination.
19.1 Termination of the Team License and the Other
Related Acreements. Notwithstanding any other provision of this
Agreement or any provision of the Related Agreements, other than
Section 16.6.2 of the Management Agreement the provisions of
Sections 19.1-19.4 of this Agreement govern the termination of this
Agreement, the Management Agreement and the Team License, and none
of this Agreement, the Management Agreement or the Team License may
terminate under any other circumstances. Except for a termination
under Section 19.3 or under Section 16.6.2 of the Management
I
i Agreement, if this Agreement is terminated, then all of the Related
Agreements shall simultaneously be terminated and any election or
notice of termination of this Agreement shall be deemed to be an
election or notice of termination of all of the Related Agreements.
Notwithstanding anything to the contrary in this Section 19.1, the
County shall have the right pursuant to Section 19.3 (or Section
16.6.2 of the Management Agreement) to terminate the Manager's
rights under the Management Agreement and this Agreement upon the
occurrence of any event described in such Section without
terminating this Agreement or any of the obligations of the Team
under this Agreement or any Related Agreement, including, without
limitation, the Team's obligations under the Term Guaranty or the
Development Agreement Guaranty.
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19.2 Termination by the Team and the Manacrer. Provided
that the Team and the Manager are not in material default under
this Agreement and have caused no event to occur or condition to
exist which with the passage of time or the giving of notice, or
both, would constitute a material default under this Agreement,
either the Team or the Manager at its option may terminate this
Agreement and the Team License after 15 days' prior written notice
to the Governmental Entities if:
19.2.1 Basketball Properties, Ltd. or its
permitted successor as the Manager is removed by the County as the
} Manager under the Management Agreement (a) in breach of this
Agreement or the Management Agreement, or (b) in accordance with
the terms of Section 16.7 of the Management Agreement, but without
giving the Team the option of being substituted in the place of,
Basketball Properties, Ltd. or its successor as provided in Section
16.7 of the Management Agreement.
19.2.2 The County terminates the Management
Agreement or the Team License in breach of the Management Agreement
or the Team License.
19.2.3 The County or the City condemns the Arena
for the purpose of ousting the Team or the Manager and not for a
valid governmental purpose.
19.3 Termination by the County Provided that the County
is not in material default of this Agreement and has caused no
event to occur or condition to exist which with the passage of time
or the giving of notice, or both, would constitute a material
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103
default under this Agreement, the County, at its option may
terminate this Agreement and all Related Agreements (provided the
Team Guaranty and the Development Agreement Guaranty (which are not
Related Agreements) shall not be terminated as a result of such
termination) after 15 days' prior written notice to the Team and
the Manager if any of the following shall occur:
19.3.1 The Team breaches any of its obligations
under Sections 4.1-4.4 or the Team Guaranty.
19.3.2 The Team loses its NBA franchise or its
Franchise Agreement with the NBA is terminated.
19.3.3 The Manager has been removed under the
Management Agreement for failure to maintain the Arena in
accordance with the terms of the Management Agreement and the Team
has not exercised its option to assume the obligations of the
Manager under the Management Agreement; provided that in that
instance the County may only terminate the Management Agreement.
19.3.4 The Team, after having assumed the
I
I obligations of the Manager under the Management Agreement, is
I•
removed as the Manager.
19.3.5 If the Manager shall file a voluntary
petition in bankruptcy under the United States Bankruptcy Code or
an involuntary petition shall be filed with respect to the Manager
under the United States Bankruptcy Code and such petition remains
undismissed for a period of 60 days following the filing (each, a
"Bankruptcy Event") unless within 30 days following the occurrence
of such Bankruptcy Event, at the request of the County, either the
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Team or another Person acceptable to the County assumes all of the
Manager's obligations and liabilities under this Agreement from and
after the date of the assumption and cures all preexisting defaults
of the Manager under this Agreement.
19.3.6 Any transfer in violation of the terms and
provisions of Sections 16.2, 16.3 or 16.4.
19.4 Termination of this Agreement by the Team or the
County. The Team or the Manager on the one hand, or the County on
the other hand, may terminate all, but not less than all, of this
Agreement and the Related Agreements after 15 days' prior written
notice to all parties if:
19.4.1 Termination of the Development Agreement
Prior to the Operations Start Date the Development Agreement is
terminated.
19.4.2 The Management Agreement is terminated
pursuant to Sections 10 or 11 of the Management Agreement.
19.5 Rights After Termination of Agreement. If the
County or the Team or the Manager terminates this Agreement
pursuant to this Section 19, the County, the Team and the Manager
each shall have all rights and remedies available at law or equity
as have accrued as of the date of such termination, subject to the
terms of this Agreement and the Related Agreements. The Team
Guaranty insofar as it relates to Guaranteed Debt Service Payments
and to the Manager's obligations under Section 4.13.2 of the
Man a ement Agreement and the Development Agreement Guaranty shall
g s P
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96- 463 105
survive any termination of this Agreement, except For a termination
pursuant to Sections 19.2 or 19.4.1.
19.6 Events of Default. Each of the following, at the
option of the non -defaulting party (the Team or the Manager on the
one hand and the County on the other hand) , shall constitute an
Event of Default:
19.6.1 If any representation and warranty made by
the Governmental Entities or the Team or the Manager in this
Agreement shall at an time to have been incorrect
i Y prove �, 'n any
material respect as of the time made, and if the party making such
representation and warranty fails to cause such representation and
warranty to become correct within 30 days after written notice that
1
such representation and warranty was incorrect; provided, however,
that if it is not reasonably possible to cause such representation
and warranty to become correct within such 30-day period, such cure
period shall be for an unlimited period of time if within 30 days
after such written notice the curing party commences diligently and
thereafter continues to cause such representation and warranty to
become correct.
19.6.2 If the Team shall fail to observe or to
perform any of the provisions of Section 4.
19.6.3 If the County fails to observe or to
perform any of the provisions of Section 12.
19.6.4 If the Team or the Manager or any
Governmental Entity fails to observe or perform any of the other
covenants, agreements or provisions in this Agreement other than as
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referred to in Sections 19.6.1, 19.6.2 or 19.6.3 and such failure
is not cured within 30 days after written notice of such failure;
provided, however, that if it is not reasonably possible to cure
such failure within such 30-day period, such cure period shall be
for an unlimited period of time if within 30 days after such
written notice the curing party commences diligently and thereafter
continues to cure.
If an Event of Default occurs under this Agreement or any of the
Related Agreements, there shall be no right of termination of this
Agreement or any of the Related Agreements, except as may be
provided in Sections 19.2 - 19.4 and Section 16.6.2 of tht
Management Agreement.
19.7 Specific Performance. The parties acknowledge and
agree that if any Governmental Entity fails to observe or to
perform any of the provisions of this Agreement or any of the
Related Agreements, including in particular Section 12, or if the
Team or the Manager fails to observe or to perform any of the
provisions of this Agreement or any of the Related Agreements,
including in particular Section 4, the award of damages arising
from such breach would not be an adequate remedy. Therefore, the
parties acknowledge and agree that, subject to Section 20, (a) each
party shall be entitled to specific performance, any other
injunctive relief, or any other court order to enforce the
performance of the covenants and obligations undertaken under this
Agreement and the Related Agreements, including in particular
57
g�l�` 463 107
Sections 4 and 12; and (b) notwithstanding any other provision in
this Agreement or any Related Agreement, no cure period provided
for in this Agreement or any Related Agreement shall be a condition
to the right to obtain such specific performance, other injunctive
relief or any court order enforcing performance of this Section
19.7.
19.8 Institution of Litigation Permitted by Section 20.
To the extent permitted by Section 20, in addition to any other
rights or remedies, any party may institute litigation to recover
damages for an Event of Default (the prosecution of any such action
for damages shall be subject to prior compliance with Section 20 to
the extent applicable) or to obtain any other remedy (including
specific performance and any other equitable remedy) consistent
with the purposes of this Agreement; provided that specific
performance shall in no event require the Team, the general partner
of the Team, the Manager or the general partner of the Manager to
commit capital in addition to any capital already committed
(although nothing contained herein shall be deemed to affect or
impair the Team Guaranty and/or the Development Agreement Guaranty.
Litigation permitted by this Agreement shall only be instituted in
the Eleventh Judicial Circuit Court of Florida for Dade County or
the Miami Division of the. United States District Court for the
Southern District of Florida. The parties consent to the
jurisdiction of such court. Subject to Section 20, neither the
existence of any claim or cause of action of a party, against
another party, whether predicated on this Agreement or otherwise,
58
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nor the pendency of Mediation proceedings involving another party,
shall (a) constitute a defense to specific enforcement of the
obligations of such other party under this Agreement, or (b) bar
the availability of injunctive relief or any other equitable remedy
1 under this Agreement.
19.9 Rights and Remedies are Cumulative. Except with
respect to rights and remedies expressly declared to be exclusive
in this Agreement or the Related Agreements, the rights and
remedies of the parties are cumulative and the exercise by any
party of one or more of such rights or remedies shall not preclude
the exercise by it, at the same time or different times, of any
other rights or remedies for the same Event of Default or any other
I Event of Default by any other party.
19.10 Costs, Expenses and Fees. In the event of any
Challenge by a person who is not a party to this Agreement in any
litigation, arbitration or other dispute resolution proceeding
("Challenge Proceeding") the Team and the Manager shall be entitled
to advances from and to be reimbursed from Arena Construction Funds
if prior to the Operations Start Date and Arena Revenue under the
Management Agreement if after such date, for all costs and expenses
incurred by either of them in such Challenge Proceeding, including
reasonable attorneys, fees and costs, and such costs and expenses
shall be treated as either Arena Costs under the Development
Agreement or Operating Expenses under the Management Agreement, as
applicable. Any award granted to the Team and the Manager in such
Challenge Proceeding, including an award of any such costs and
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109
expenses, shall be treated as additional Arena construction funds
if received prior to the Operations Start Date and Arena Revenue if
after such date. In the event of any litigation, arbitration or
other dispute resolution proceeding in connection with this
Agreement, involving a claim against any party to this Agreement by
another party to this Agreement ("Proceeding"), the prevailing
jparty in such Proceeding shall be entitled to be reimbursed by the
other party for all costs and expenses incurred in such Proceeding,
including reasonable attorneys' fees and costs as may be fixed by
the Eleventh Judicial Circuit Court of Florida for Dade County or
the Federal District Courts, as applicable, and any award granted
to a party in such Proceeding shall be treated as the sole property
of such party.
19.11 Acceptance of Legal Process.
19.11.1 Service on the County. In the event that
any legal or equitable action is commenced by the Team or the
Manager against the County, service of process on the County shall
be made as required by law.
19.11.2 Service on the City. In the event that any
legal or equitable action is commenced by the Team or the Manager
against the City, service of process on the City shall be made as
required by law.
19.11.3 Service on the Team. In the event any
legal or equitable action is commenced by any Governmental Entity
against the Team, service of process on the Team shall be made -by
personal service upon the registered agent of the general partner
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96- 463
u:
of the Team, or in such other manner as may be provided by law, and
shall be valid whether made within or without the State of Florida.
19.11.4 Service on the Manager. In the event any
legal or equitable action is commenced by any Governmental Entity
against the Manager, service of process on the Manager shall be
made by personal service upon the registered agent of the general
partner of the Manager, or in such other manner as may be provided
by law, and shall be valid whether made within or without the State
of Florida.
19.12 County and City. Notwithstanding and prevailing
over any term in this Agreement or any of the Related Agreements,
the obligations of the County and the City under this Agreement arm
not joint and several, and the County shall:'not be liable for any
failure to perform, default, breach or Event of Default by the
1
i
City, the Manager, or the Team under this Agreement or any of the
Related Agreements, and the City shall not be liable for any
failure to perform, default, breach or Event of Default by the
County, the Manager or the Team under this Agreement or any of the
Related Agreements.
20. Mediation. In the event of any default, breach or other
_ dispute between any one or more of the Governmental Entities on the
one hand and the Team and/or the Manager on the other in connection
with this Agreement (collectively, the "Dispute,,), the parties
shall comply with the procedures set forth in Sections 20.1-20.7.
' 61
96 463
ill
20.1 Within seven Business Days after written request
(the "Request") by a party, the parties promptly shall hold an
initial meeting to attempt in good faith to negotiate a settlement
of the Dispute. No Request concerning a Dispute may be made after
the time allowed by any statute of limitations applicable to such
Dispute.
26.2 If within ten days after the Request, the parties
have not negotiated a settlement of the Dispute (as evidenced by a
written, executed settlement agreement), the parties jointly shall
appoint a mutually acceptable neutral person who is not affiliated
with either of the parties and who is experienced and knowledgeable
in the operations of arenas (the "Neutral"). If the parties are
unable to agree upon the appointment of the Neutral within 14 days
after the Request, any party may request the AAA to select the
Neutral or may require both parties to submit to any procedures of
the AAA to select the Neutral, including without limitation the
selection of the AAA as the Neutral. Alternatively, at any time,
any party may elect to opt out of the remaining Mediation
procedures of this Section 20. In such event, upon a party
exercising its discretion to opt out of said Mediation procedures
with request to a Dispute, any party may circumvent the Mediation
procedures contemplated under this Section 17 and proceed directly
to court or other appropriate forum with respect to such Dispute
20.3 In order to resolve the Dispute, the parties shall
develop a non -binding alternative dispute resolution procedure such
as mediation or facilitation (the "Mediation") with the assistance
of the Neutral. The Neutral shall make the decision as to how,
when and where the Mediation will be conducted if the parties have
been unable to agree on such matters by the earlier of seven
Business Days after the appointment of the Neutral or 21 days after
the Request.
20.4 In the event that no party has elected to opt out
of Mediation pursuant to Section 20.2, the fees and costs of the
Neutral shall be borne equally by the parties. The parties shall
participate in good faith in the Mediation to 'its conclusion. If
the parties resolve their Dispute through their own negotiations or
in the Mediation, the resolution shall be reduced to the form of a
written settlement agreement which shall be binding upon both
parties and shall preclude any litigation with respect to such
Dispute. If the parties have not resolved the Dispute through the
Mediation within 30 days after the Request, or a party opts out of
the Mediation, then either party may institute litigation in
Accordance with Section 19.8 or otherwise proceed as permitted by
law.
20.5 Except as expressly provided to the contrary in
this Section 20 or elsewhere in this Agreement, these procedures
require that the parties use these Mediation procedures as a means
of resolving their disputes prior to resorting to litigation.
Notwithstanding any other provision of this Section 20 to the
contrary, in the event a party desires to seek interim relief,
whether affirmative or prohibitive, in the form of a temporary
restraining order or preliminary injunction or other interim
113
equitable relief concerning a Dispute, including without
limitation, declaratory relief, provisional remedies, special
action relief, stay proceedings in connection with special action
relief and any similar relief of an interim nature, either before
beginning the Mediation procedures or at any point in the Mediation
procedures concerning such Dispute, such party may initiate the
appropriate litigation to obtain such relief. Nothing in this
Agreement shall be construed to suspend or terminate the obligation
of all of the parties promptly to proceed with the Mediation
procedures to completion while such litigation and any appeal from
such litigation is pending.
20.6 Payment Obligations. Notwithstanding anything to
the contrary in this Section 20, no party to this Agreement shall
be obligated to comply with the terms of this Section 20 with
respect to any Dispute which relates to the obligations of the
Manager which are being guaranteed pursuant to the Team Guaranty,
or any Payment Obligation under this Agreement or any Related
Agreements.
20.7 No Extension. Nothing contained in this Section 20
shall be deemed to extend the cure period for any default provided
for in Section 19.
21. Liability Limitation,
21.1 The Governmental Entities. Notwithstanding and
prevailing over any contrary provision or .implication in this
Agreement, no member, elected or appointed official, employee,
agent, independent contractor or consultant of any Governmental
96- 463
Entity shall be liable to the Team or the Manager, or any successor
in interest to the Team or the Manager, in the event of any default
or breach by a Governmental Entity for any amount which may become
due to the Team or the Manager or any successor in interest to the
Team or the Manager, or on any other obligation under the terms of
this Agreement, except for their criminal acts with respect to this
Agreement (i.e., acts which would constitute crimes were they
prosecuted for and convicted of such acts).
21.2 The Team and the Manacrer. Notwithstanding and
prevailing over any contrary provision or implication in this
Agreement, except for their criminal acts with respect to this
Agreement (i.e., acts which would constitute crimes were they
prosecuted for and convicted of such acts), or fraud by any such
party, the officers, directors, shareholders, employees, agents and
limited partners of the Team and the Manager and of their
respective general partners ("Team/Manager Personnel") shall not in
any way be liable under or with respect to this Agreement; no
deficiency or other monetary or personal judgment of any kind shall
be sought or entered against any of the Team/Manager Personnel with
respect to liability under or with respect to this Agreement; no
judgment with respect to liability under or with respect to this
Agreement shall give rise to any right of execution or levy against
the assets of any of the Team/Manager Personnel other than their
interest in this Agreement and in the Team and/or the Manager; and
the liability of the Team and/or the Manager under this Agreement
shall be limited to the assets of the Team and/or the Manager, as
65
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i
1p
applicable, and their respective general partners (although nothing
contained in this Section shall be deemed to limit the rights of
the County or the liability of the Team or its general partner
under the Team Guaranty or Development Agreement Guaranty or under
any other Related Agreement).
22 Miscellaneous.
22.1 Notices. All notices, demands or requests provided
for or permitted to be given pursuant to this Agreement must be in
writing and shall be delivered or sent, with the copies indicated,
by personal delivery, telefax or overnight delivery service to the
parties as follows (or at such other address as a party shall
specify by notice given pursuant to this Section):
To the County:
with a copy to:
To the.City:
with a copy to:
66
County Manager
Office of the County Attorney
City Manager
City of Miami
City Hall
3500 Pan American Drive
Miami, Florida
City Attorney
444 S.W. 2nd Avenue
Miami, FL 33128
96- 463
j with a copy to each of:
and
To the Manager:
with a copy to each of:
67
Miami Heat Limited Partnership
SunTrust International Center
One Southeast Third Avenue
Suite 2300
Miami, Florida 33131
Telefax: (305) 372-0802
Attention: Executive vice
President Business Operations
Eric Woolworth, Esq.
General Counsel
Miami Heat Limited Partnership
SunTrust International Center
One Southeast Third Avenue
Suite 2300
Miami, Florida 33131
Telefax: (305) 372-0802
Holland & Knight f
701 Brickell Avenue
Suite 3000
Miami, Florida 33131
Attn: Bruce Jay Colan, Esq.
Telefax: (305)789-7799
Basketball Properties, Ltd.
SunTrust International Center
One Southeast Third Avenue
Suite 2300
Miami, Florida 33131
Telefax: (305)372-0802
Attention: President
Eric Woolworth, Esq.
General Counsel
Basketball Properties, Ltd.
SunTrust International Center
One Southeast Third Avenue
Suite 2300
Miami, Florida 33131
Telefax: (305)372-0802
96- 463
117
Holland & Knight
701 Brickell Avenue
Suite 3000
Miami, Florida 33131
Attn: Bruce Jay Colan, Esq.
Telefax: (305)789-7799
Each notice shall be deemed given and received one Business Day
after its delivery to the address for the respective party with the
copies indicated, as provided in this Section.
22.2 Entire Agreement. This Agreement, the documents
which are Exhibits to this Agreement, the Related Agreements and
any other contemporaneous agreements entered into by the parties
contain the sole and entire agreement among the parties with
respect to their subject matter and supersede any and all other
prior written or oral agreements between them with respect to such
subject matter.
22.3 Amendment. No amendment or modification of this
Agreement shall be valid unless in writing and duly executed by the
party affected by the amendment or modification.
22.4 Bindincr Effect. This Agreement shall be binding
upon the parties and their respective representatives, successors
and assigns, subject to the limitations on transfer in Section 16.
22.5 Waiver. Waiver by any party of any breach of any
provision of this Agreement shall not be considered as or
constitute a continuing waiver or a waiver of any other breach of
the same or any other provision of this Agreement.
22.6 Caotions. The captions contained in this Agreement
are inserted only. as a matter of convenience or reference and in no
way define, limit, extend or describe the scope of this Agreement
or the intent'of any of its provisions.
22.7 Construction. In the construction of this
Agreement, whether or not so expressed, words used in the singular
or in the plural, respectively, include both the plural and the
singular and the masculine, feminine and neuter genders include all
other genders.
22.8 Section and Exhibit References. All references
contained in this Agreement to Sections and Exhibits shall be
deemed to be references to Sections of, and Exhibits attached to,
this Agreement, except to the extent that any such 'reference
specifically refers to another document. All references to
Sections shall be deemed to also refer to all subsections of such
Sections, if any. The definitions of terms defined in this
Agreement shall apply to the Exhibits, unless the context otherwise
indicates.
22.9 Severabilitv, In the event that any portion of
this Agreement is illegal or unenforceable, to the extent required
by applicable law, it shall affect no other provisions of this
Agreement, and the remainder of this Agreement shall be valid and
enforceable in accordance with its terms.
22.10 Absence of Third Party Beneficiaries. Nothing in
this Agreement, express or implied, is intended to (a) confer upon
any entity or person other than the parties and their authorized
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119
successors and assigns any rights or remedies under or by reason of
this 'Agreement as a third -party beneficiary or otherwise except as
specifically provided in this Agreement; or (b) authorize anyone
not a party to this Agreement to maintain an action pursuant to or
based upon this Agreement.
i
22.11 Business Day. As used in this Agreement, the term
"Business Day" means any day other than a Saturday, Sunday or legal
or bank holiday in the City. If any time period set forth in this
Agreement expires on other than a Business Day, such period shall
be extended to and through the next succeeding Business Day.
22.12 Other Documents. The parties shall take all such
actions and execute all such documents which may be necessary to
carry out the purposes of this Agreement, whether or not
specifically provided for in this Agreement; provided that the
parties further acknowledge that certain additional actions by the
County and the City may require Board or Commission approval, and
to the extent such approvals are required by law, obtaining the
applicable approvals shall be a condition to the County's and the
City's obligations under this Section.
22.13 Governinq Law. This Agreement and the
interpretation of its terms shall be governed by the laws of the
State of Florida, without application of conflicts of law
principles. Venue for any judicial, administrative or other action
to enforce or construe any term of this Agreement or arising from
or relating to this Agreement shall lie exclusively in Miami, Dade
County, Florida.
SY.
22.14 Counterparts. This Agreement may be executed and
delivered in two or more counterparts, each of which shall be
deemed to be an original and all of which, taken together, shall be
deemed to be one agreement.
22.15 Time of Essence. Time is of the essence with
respect to the performance of each of the covenants and obligations
contained in this Agreement.
22.16 Relationship of Parties. No partnership, joint
venture or other business relationship is established among the
parties under this Agreement. The relationships, if any,
established among the parties are established in the- Related
Agreements, but only to the extent, if any, that they are stated tb
be established in the Related Agreements:' Except as may be
expressly provided in this Agreement or the Related Agreements, (a)
I
the Team and the Manager and their employees, agents, independent
I
contractors and consultants shall not be considered employees or
agents of the Governmental Entities or to have been authorized to
incur any expense on behalf of the Governmental Entities or to act
for or to bind the Governmental Entities; and (b) the Governmental
Entities and their elected and appointed officials, officers,
employees, agents, independent contractors and consultants shall
not be considered employees or agents of the Team or the Manager or
j to have been authorized to incur any expense on behalf of the Team
i
or the Manager or to act for or to bind the Team or the Manager.
Neither the Governmental Entities on the one hand nor the Team and
the Manager on the other shall be liable for any acts, omissions or
71
96 - 463121
p,
negligence on the part of the other or their employees, agents,
independent contractors, licensees and invitees.
22.17 Savings. All "savings" ("Arena Savings") under
Section 10.7 of the Development Agreement shall be allocated to the
City, the County and the Manager as follows:
(i) The Manager shall be entitled to receive
50% of any such Arena Savings (the "Manager's Savings"), provided,
however, any and all costs and expenses ("Remediation Expenses")
paid or incurred in connection with any Remedial Action taken by
the County shall be paid to the County from the Manager's Savings
to the extent the amounts described in Clause (ii) below are not
sufficient to fully reimburse the County for all Remediation
Expenses;
(ii) With respect to the remaining 50% of such
Arena Savings such Arena Savings shall be applied as follows:
(a) The County shall be entitled to
receive any and all costs and expenses paid or incurred in
connection with any Remedial Action taken by the County pursuant to
Section 2.5.2 of the Development Agreement; and
(b) The remaining balance of such
Arena Savings shall be allocated 12% to the City and 88% to the
County.
22.18 [Intentionally Omitted].
22.19 Force Majeure. Subject to the explicit terms of
this Agreement to the contrary including without limitation Section
3.2 and the terms of the Team Guaranty, failure in performance by
72
96- 463
any party under this Agreement shall not be deemed an Event of
Default and the nonoccurrence of any condition under this Agreement
shall not give rise to any right otherwise provided in this
Agreement when such failure or non-occurrence is due to war,
insurrection, strikes, lock -outs, riots, hurricanes, floods,
earthquakes, fires, casualties, acts of God, acts of the public
enemy, epidemics, quarantine restrictions, freight embargoes, lack
of transportation, governmental restrictions (except resolutions of
a Governmental Entity in its proprietary capacity), unusually
severe weather, inability (when both parties are faultless) of any
contractor, subcontractor or supplier, acts or the failure to act,
of any public or governmental agency or entity (except acts or
failures to act by a Governmental Entity acting in its proprietary
capacity) or any other causes beyond the control and without the
fault of the party claiming an extension of time to perform. An
extension of time for any such cause shall be limited to the period
of delay due to such cause, if any, which period shall be deemed to
commence from the time of the commencement of the cause, provided
that, if notice by the party claiming such extension is sent to the
other party more than 30 days after the commencement of the cause,
the period shall be deemed to commence 30 days prior to the giving
of such notice. The period of the delay due to any such cause
shall, to the extent the Arena is unusable during such period, for
the purpose of Section 3.1, be an Abatement Period, except as
provided in Section 3.1. Times of performance under this Agreement
also may be extended as mutually agreed upon in writing by the
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123
parties. However, failure to agree to a proposed extension of time
for performance shall not be deemed grounds for delay or failure to
timely cure an Event of Default under this Agreement.
22.20 Nondiscrimination. There shall be no discrimina-
tion against or segregation of any person, or group of persons, on
account of sex, marital status, race, color, creed, religion,
national origin or ancestry in the sale, lease, sublease, transfer,
use, occupancy, tenure or enjoyment of the Arena or Parking Garage
to the extent the Manager has any rights to the Parking Garage.
Neither the Team nor the Manager nor any person claiming under or
through them shall establish -or permit any such practice or
practices of discrimination or segregation with reference to the
r selection location number use or occu a f l
'
icensees
► p ncy o ,
sublicensees or vendors (if any), using or operating at the Arena,
(or any portion of the Arena. The Governmental Entities and the
United States shall be the beneficiaries of this provision and
entitled to enforce it.
22.21 Nondiscrimination Clause. The Team and the
Manager, for themselves and their successors and assigns, shall
cause the following clause to appear in all contracts, licenses or
sublicenses'(a) concerning the Arena and (b) to the extent entered
into by or through the Manager, the Parking Garage: "Any supplier,
contractor or lessee in performing under this contract shall not
discriminate against any worker, employee or applicant, or any
member of the public because of race, creed, ancestry, color,
religion, sex, marital status, or national origin, nor otherwise
74
j 124
i
96- 463
commit an unfair employment practice. The supplier, contractor or
lessee shall take affirmative action to ensure that applicants are
employed, and that employees are dealt with during employment
without regard to their race, creed, color, ancestry, religion,
sex, marital status 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;
and selection for training, including apprenticeship. The
supplier, contractor or lessee further agrees that this clause will
be incorporated in all subcontracts entered into with suppliers of
materials or services, and all labor organizations furnishinfi
skilled, unskilled and union labor, or who may perform' any such
labor or services in connection with this contract." The clause
required in this Agreement may be modified or deleted to conform to
changes in applicable laws, ordinances and regulations and deleted
when no longer required by applicable law.
22.22 Trade Secrets.
22.22.1 The Manager. The Governmental Entities
acknowledge that certain Manager records or information relating to
the use, management or operation of the Arena which have been or
may be examined or obtained under this Agreement or any of the
Related Agreements by one or more of the Governmental Entities, are
considered "Trade Secret Information" pursuant to F.S. 815.045 and
that any such information is proprietary, and expressly made
confidential and, to the extent permitted by law, exempt from the
75
125
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u:
public records law. The Governmental Entities acknowledge and
agree that disclosure of any such Trade Secret Information to
another Person would negatively impact the business interests of
the Manager and Team in the marketplace. At all times during the
1
term of this Agreement, the Governmental Entities shall (a) hold
the Trade Secret Information in confidence and refrain from
disclosing the Trade Secret information or transmitting any Trade
Secret Information to any other Person (other than its employees,
attorneys, officials and professional advisors); (b) use the Trade
Secret Information solely in connection with this Agreement and the
Related Agreements, and to perform its obligations, and evaluate
the performance of the Manager and the Team, and otherwise exercise
its rights and duties under this Agreement, and for no other
purpose; and (c) take all reasonable precautions necessary to
ensure that Trade Secret Information shall not be, or be permitted
to be, shown copies or disclosed to third parties, without the
prior consent of the Manager and the Team consistent with the
Governmental Entities' current procedures for handling confidential
or proprietary information of others in their possession. Each
Governmental Entity shall notify the Manager and the Team if the
Governmental Entity receives a request for disclosure of any Trade
Secret Information so that the Manager and/or the Team, as
applicable, may vigorously defend any claims or disputes arising
from efforts by others to cause such Trade Secret Information to be
disclosed as a public record. The Governmental Entities shall
amend this Agreement as necessary.to further protect Trade Secret
76
96- 463
Information. The Team and the Manager acknowledge, however, that
any such amendment may require Board and/or Commission approval.
22.22.2 The Team. The Governmental Entities
acknowledge that certain Team records or information which have
been or may be examined or obtained under this Agreement or any of
the Related Agreements by one or more of the Governmental Entities
via the Team or the Manager are considered "Trade Secret
Information" pursuant to F.S. 815.045 and that any such information
is proprietary, and expressly made confidential to the extent
permitted by law, and exempt from the public records law. The
Governmental Entities acknowledge and agree that disclosure of any
such Trade Secret Information to another Person would negatively
impact the business interests of the Team in the marketplace. At
all times during the term of this Agreement, the Governmental
Entities shall (a) hold the Trade Secret Information in confidence
and refrain from disclosing the Trade Secret Information or
transmitting any Trade Secret Information to any other Person
(other than its employees, attorneys, officials and professional
advisors); (b) use the Trade Secret Information solely in
connection with this Agreement and the Related Agreements, and to
perform its obligations, and evaluate the performance of the
Manager and the Team, and otherwise exercise its rights and duties
-under this Agreement, and for no other purpose; and (c) take all
reasonable precautions necessary to ensure that Trade Secret
Information shall not be, or be permitted to be, shown, copied or
disclosed to third parties, without the prior consent of the Team
77
127
96- 463
IT
consistent with the Government Entities' current procedures for
handling confidential or proprietary information of others in their
possession. Each of the Governmental Entities shall notify the
Team if the Governmental Entity receives a request for disclosure
so that the Team may vigorously defend any claims or disputes
arising from efforts by others to cause such Trade Secret
Information to be disclosed as a public record. The Governmental
Entities shall amend this Agreement as necessary to further protect
Trade Secret Information. The Team and the Manager acknowledge,
however, that any such amendment may require Board and/or
Commission approval.
22.22.3 Exceptions. Notwithstanding any of the
foregoing provisions of Sections 22.22.1 and 22.22.2: (a) the
Governmental Entities will not have any further obligations of
confidentiality or secrecy with respect to any of the Trade Secret
Information to the extent that such Trade Secret Information
becomes public knowledge or is published, disseminated or
circulated in the public domain, unless such publication results
from the breach of this Agreement by such Governmental Entity; and
(b) nothing will prevent representatives of the Governmental
Entities from testifying either in court or through depositions or
other discovery proceedings in the context of litigation or
administrative proceedings. A breach of Sections 22.22.1 and/or
22.22.2 will not entitle the Manager or the Team to terminate this
Agreement. Rather, their exclusive remedy for such breach will be
entitlement to whatever actual damages are proven in a court of
78
96- A63
competent jurisdiction or injunctive relief ordered by a court of
competent jurisdiction. Furthermore, no breach of such Sections by
the Governmental Entities shall excuse either the Team or the
Manager from providing such other information, records and reports
asarerequired by this Agreement or the Related Agreements to the
Governmental Entities.
22.23 No Duplicative Causes of Action. This Agreement
and the Related Agreements include certain provisions that are
contained in more than one of such Agreements. In the event of a
breach of any provision contained in more than one of such
Agreements, such breach shall only create one cause of action.
22.24 No Liability for Exercise of Police Power.
Notwithstanding and prevailing over any contrary provision in this
Agreement or in any of the Related Agreements, any County or City
consent or obligation that may be contained in this Agreement or
any of the Related Agreements, including but not limited to the
following:
(a) to cooperate with, or provide good faith
or reasonable efforts to assist, the Team, the
Manager, or both, regardless of the purpose
required for such cooperation;
(b) to execute documents or give approvals,
regardless of the purpose required for such
execution or approvals;
(c) to apply for or assist the Team or the
Manager in applying for- any County, City, or
third party permit or needed approval; or
(d) to contest, defend. against, or assist
j the Team or the Manager in contesting or
defending against any challenge or Imposition
of any nature;
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129
i
shall not bind the Board, the Zoning Appeals Board, the Building &
Zoning Department or Planning Department of the County or the City,
DERM, or any other County or City department, authority, or agency
to grant or leave in effect any zoning changes, variances, permits,
waivers, contract amendments, or any other approvals that may be
granted, withheld or revoked in the discretion of the County or the
City in the exercise of its police power; and the County or the
City, as the case may be, shall be released and held harmless, by
all parties to this Agreement (other than the County or the City)
from any liability, responsibility, claims, consequential or other
damages, or losses to either said parties or to third parties
resulting from denial, withholding, or revocation of any zoning or
other changes, variances, permits, waivers, amendments, or
approvals of any kind or nature whatsoever.
22.25 No Non -Compete. Notwithstanding and prevailing
over any term in this Agreement or any of the Related Agreements,
no provision in this Agreement or any Related Agreement shall be
deemed to be, or construed as having the effect of, a non -compete
clause or other restraint of trade.
22.26 Legal Opinion. Within 30 days following the date
of this Agreement, the Team and the Manager shall cause to be
delivered to the County an opinion of counsel with respect to the
due formation, valid existence, and good standing of each of the
Team and Manager and their respective general partners, the due
authorization, execution and delivery of this Agreement, the
Related Agreements, the Team Guaranty and the Development Agreement
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Dated and executed by the parties as of
Harvey Ruvin, CLERK
By:
Deputy Clerk
Attestation:
CLERK
By.
City Clerk
82
County:
METROPOLITAN DADE COUNTY,
a political subdivision of the
State of Florida
Armando Vidal, P.E.
County Manager
APPROVED AS TO LEGAL SUFFICIENCY:
BY:
Robert A. Ginsburg,
County Attorney
City:
CITY OF MIAMI, a Municipal
Corporation of the State of
Florida
Cesar H. Odio
City Manager
96- 463
APPROVED AS TO FORM AND
CORRECTNESS:
By:
A. Quinn Jones III,
City Attorney
Team:
MIAMI HEAT LIMITED PARTNERSHIP,
a Florida limited partnership
By: FLORIDA BASKETBALL
ASSOCIATES, INC., a Florida
corporation, its general
partner
By:
President
Manager:
BASKETBALL PROPERTIES, LTD., a
Florida limited partnership
By: BASKETBALL PROPERTIES, INC.,
a Florida corporation,
its general partner
By:
President
83
06- 463 133
Exhibit 1
ASSURANCE AGREEMENT
DEFINITIONS
This Exhibit is an integral part of the Assurance Agreement to
which it is an Exhibit. Accordingly, all references in this
Exhibit to "this Agreement" are to the Assurance Agreement. All
references contained in this Exhibit to Sections shall be deemed to
be references to Sections of this Agreement, except to the extent
that any such reference specifically refers to another document.
A11 references to Sections shall be deemed to also refer to all
i subsections of such Sections, if any.
1. AAA means the American Arbitration Association or its
successor.
2. Abatement Period(s) means any period for which the term
i
of this Agreement or the time for performance or the satisfaction
of a condition is extended as provided by or pursuant to
(a) Sections 3 or 22.19 of this Agreement, (b) Sections 13, 14 or
31.17 of the Development Agreement, (c) Sections 10, 11 or 20.18 of
the Management Agreement, and (d) Sections 16, 17 and 23.19 of the
Team License. Any Abatement Period after the License Commencement
Date under any of the Related Agreements shall be deemed to be an
Abatement Period under this Agreement.
3. Accounts has the meaning set forth in the Management
Agreement.
announcements, acknowledgments,
banners, signs and other visual or audible messages displayed or
broadcast within the Arena and/or the Parking Garage or elsewhere
on the Site (whether during Manager Events or Community Events
(when permitted) or at other times), irrespective of whether a fee
is charged. Advertising does not include (a) the naming of the
Arena, or (b) radio or television advertising in connection with
radio, television and other broadcasts, reproductions and
transmittals of the pictures, descriptions and accounts of the Home
Games and all other activities of the Team and the visiting teams
which are (i) incidental to NBA basketball, and (ii) conducted in
4
the Arena as permitted by the Team License or conducted in the
locker room or any television studio located in the Arena,
regardless of the nature of the technology and whether distributed
locally, nationally or otherwise. Advertising includes Temporary
Advertising and Permanent Advertising.
5. Affiliate of any Person (the "Subject Person") means any
other Person (the "Affiliated Person") who (a) Directly or
Indirectly Controls, or is Controlled by, or under common Control
with, the Subject Person; (b) owns Directly or Indirectly ten
percent or more of any class of the outstanding equity of the
Subject Person; (c) is a general partner, officer, director, agent,
non -financial institution trustee or fiduciary of the Subject
Person or of any Person described in (a) or (b); or (d) is a member
of the Immediate Family of the Subject Person or of any Person
described in (a) through (c); provided, however, that a Person
2
96- 463
135
shall not be an Affiliated Person solely by reason of being
indebted to another Person who, by virtue of owning outstanding
debt of such Subject Person, controls such Subject Person.
6. Applicable Laws or applicable laws means any applicable
law (including, without limitation, any Environmental Law),
enactment, statute, code, ordinance, administrative order, charter,
tariff, resolution, order, rule, regulation, guideline, judgment,
decree, writ, injunction, franchise, permit, certificate, license,
authorization, or other direction or requirement of any
governmental authority, political subdivision, or any division or
department thereof now existing or hereafter enacted, 'adopted,
promulgated, entered, or issued.
7. Arena means an approximately 21,000 seat multipurpose
facility that is included as an integral part of the Facility and
is described more fully in the Development Agreement.
8. Arena Budget has the meaning set forth in the Development
Agreement.
9. Arena Costs has the meaning set forth in the Development
Agreement.
10. Arena Debt has the meaning set forth in the Management
Agreement.
11. Arena Hard Concessions means the Hard Concessions sold in
the Arena for the account of the Arena.
12. Arena Name means the name of the Arena designated by the
Manager pursuant to Section 4.5 of the Management Agreement.
13 . Arena Revenue means ( for each Fiscal Year) all revenue of
any nature derived by the Manager as a result of the construction,
use, booking, licensing (including Suite Licenses and Premium
Seating, net of applicable Taxes (as defined in the Team License)
and NBA assessments), rental, operation, destruction, damage,
restoration and condemnation of all or a portion of, or amenities
contained in, the Arena, including, without limitation, revenue
from Advertising (except as provided below or in this Agreement),
the naming of all or any portion of the Arena, any parking revenue
receivable by the Manager from the Parking Garage, the sale of Soft
Concessions, the sale of Arena Hard Concessions, any tax refunds
(other than refunds to Investors) , and interest on funds in the
Operating Account, provided that Arena Revenue shall not include
(a) any revenue from Licensee Advertising, (b) any revenue from the
sale of Hard Concessions (other than Arena Hard Concessions), (c)
any revenue from the Arena Store, (d) proceeds of insurance
specifically excluded from the definition of Arena Revenue by the
terms of this Agreement, and (e) any revenue, in the form of
advertising or otherwise, derived from radio, television and other
broadcasts, reproductions and transmittals of the pictures,
descriptions and accounts of the Home Games and all other
activities of the Team and the visiting teams which are
(i) incidental to NBA basketball, and (ii) conducted in the Arena
as permitted by this License or conducted in the locker room or any
television studio located in the Arena, regardless of the nature of
the technology and whether distributed locally, nationally or
4
90463 137
otherwise, except that if the Manager determines to charge a
facility hook-up or access fee, such fees will be Arena Revenue.
14. Arena Store means the store for the sale of Hard
Concessions which may be opened and operated by the Team or its
assignee pursuant to the Arena Store Lease.
15. Arena Store Lease means the Arena Store Lease Agreement
that may be executed between the Manager and the Team, as it may be
amended and/or restated.
l
! 16. Authority means the Maritime Park Board created and
established pursuant to an Interlocal and Lease Agreement between
the City and the County, as it may be amended and/or restated, and
any of its administrative departments, divisions and functions and
its successors and assigns.
17. Basketball Season means the period of the NBA basketball
season as established from time to time by the NBA for the playing
of pre -season, regular season and play-off Home Games.
18. Board has the meaning set forth in Section 3.1.
19. Business Day has the meaning set forth in Section 22.11.
20. Challencae has the meaning set forth in Section 18.5.
21. Challenge Proceeding has the meaning set forth in
Section 19.10.
22. City means the City of Miami, a municipal corporation of
the State of Florida, and any of its administrative departments,
divisions and functions and its successors and assigns; provided
that, for purposes of Section 14, "City" shall also include without
limitation any other board, commission or entity which, by reason
5
99W - 463
of its relationship to the City, is subject to the provisions of
Florida law relating to open meetings.
23. Commercial Event means any Event which features athletes,
participants, celebrities or performers or performances which may
reasonably be booked in arenas comparable to the Arena for an
admission charge (whether in money, goods or services) which is
more than a nominal amount. Without limiting the definition
contained in the preceding sentence, Commercial Events include any
concert, show, benefit, lecture, debate, seminar, tennis, boxing or
wrestling match or exhibition, truck pull, exhibition game, regular
season game, play-off game, tournament, monster trucks, motor
cross, ice show, figure skating, gymnastics, racing, track meet,
swimming, rodeo, horse, dog or other animal show or circus.
24. Commission has the meaning set forth in Section 18.2.
25. Communication System means all the audio and visual
I
communication systems within or at the Arena or the Parking Garage
and elsewhere on the Site, including, but not limited to,
scoreboards, television and loudspeaker systems, public address
systems, timers, clocks, message centers, video screens, signs and
marquees.
26. Community Event Operating Expenses has the meaning set
forth in Section 9.1.
27. Community Event Sponsor means the entity entering into a
License with the Manager with respect to Community Event(s).
28. Community Events means the Events that are not Commercial
Events (including, without limitation all Events that would
C
96- 463 139
i
otherwise be Commercial Events, but for which there is (a) an
admission change, or (b) a donation, of only a nominal amount)
which are conducted or sponsored or co -sponsored by the County or
I the City or their designees pursuant to their rights and
1
i obligations established in Section 9.1 and Section 3.2 of the
Management Agreement.
29. Conflicted Person has the meaning set forth in the
Management Agreement.
30. Construction Start Date has the meaning set forth in the
Development Agreement.
31. Control, Controlled or Controlling means (a) with respect
to a corporation, owning legally, beneficially or in combination.at
least 20% of any class of issued and outstanding equity of such
j
corporation, (b) with respect to a partnership, being a general
partner or being entitled to receive at least 20% of the income,
i
losses or distributions from such partnership, (c) with respect to
( any entity or association, having the ability to control its
decision -making process, and (d) with respect to a trust or other
entity or association not described in clauses (a) or (b), being
the trustee or other person entitled to direct the management of
such trust's, entity's or association's assets, or being entitled
to receive at least 20% of the income, losses or distributions from
such trust, entity or association.
32. County means Metropolitan Dade County, a political
subdivision of the State of Florida, the County's Seaport
Department and any of its other administrative departments,
96- 463
divisions and functions and its successors and assigns; provided
that, for purposes of Section 14, "County" shall also include
without limitation any other board, commission or entity which, by
reason of its relationship to the County, is subject to the
provisions of Florida law relating to open meetings.
33. County Contribution has the meaning set forth in the
Management Agreement.
34. DCA means the Florida Department of Community Affairs.
35. Development Agreement means the Development Agreement
between the County and the Manager dated as of the date of this
Agreement, as it may be amended and/or restated.
36. Development Agreement Guaranty means the guaranty by the
Team in favor of the County to be delivered pursuant to the
Development Agreement.
37. Direct or Indirect and Directly or Indirectly means
through one or more tiers of subsidiaries, partnerships, or other
third structures.
38. Dispute has the meaning set forth in Section 20.
39.Downtown DRI has the meaning set forth in Section 5.2.2.
40. Entire Site has the meaning set forth in the Development
Agreement.
41. Environmental Laws has the meaning set forth in the
Development Agreement.
42. Event means any revenue or nonrevenue producing sports,
entertainment, cultural, civic or any other activity, meeting or
8
96- 463 141
event which is conducted at the Arena, including Community Events
and Manager Events.
43. Event Days means days when Events are conducted in the
Arena.
44. Event of Default has the meaning set forth in
Section 17.6.
45. Event Sponsor means the entity entering into a License
with the Manager with respect to Event(s).
46. Exculpatory Language means the language set forth in the
following paragraph with the name of the exculpating party inserted
into the blanks.
acknowledges that this Agreement imposes
no contractual obligations upon the County, the City or
i the Authority, that the County, the City and the
Authority (and each of its members, elected officials,
other officials, officers, agents, employees, independent
i contractors and consultants as to the indemnities set
forth in this Agreement) is an express third party
beneficiary of this Agreement; and that in the event of
a default under this Agreement, of any kind or nature
whatsoever, shall look solely to the
Manager at the time of the default for remedy or relief
and shall not look to proceed against any exculpated
party; and that no member, elected official, officer,
employee, agent, independent contractor or consultant of
the County, the City or the Authority, shall be liable to
or any successor in interest to
in the event of any default or breach by
the County, the City or the Authority under any of the
Related Agreements (as such term is defined in the
Assurance Agreement dated as of 1996) , or
on any other obligation under the terms of this
Agreement.
47. Existing Arena means the existing Miami Arena owned by
the Miami.Sports and Exhibition Authority.
48. Existing Site Documents has the meaning set forth in the
Development Agreement.
0
36- 463
49, Expiration Date means the date of expiration of this
Agreement, the Team License and the Assurance Agreement, as such
Date may be extended by the aggregate of all Abatement Periods (or
portions of such Periods) commencing after the License Commencement
Date, as and to the extent such extension is provided for in this
Agreement.
50. Facility means the Site, the Arena, the Parking Garage
and any other improvements other than the contemplated retail
complex and the Port expansion and terminals constructed on the
Site.
51. Fiscal Year means the tax year of the Manager, or any
portion of such year.
52. Garage Costs has the meaning set forth in the Development
Agreement.
53. Governmental Entity means the County and the City.
54. Guaranteed Debt Service Payments shall mean the monthly
debt service payments on the Arena during each Fiscal Year to be
made as provided in Section 5.1.2 of the Management Agreement;
i.e., $69,750 ($837,000 per annum), as adjusted at the time the
bonds are sold.
55.. Guaranteed Payments has the meaning set forth in the
Management Agreement.
56. Guaranteed Maintenance has the meaning set forth in the
Management Agreement.
57. Guaranteed obligations has the meaning set forth in the
Management Agreement.
10
96- 463
143
58. Hard Concessions means programs (excluding program
advertising), apparel, novelties, souvenirs, and similar non -edible
items distributed at the Facility.
59. Hazardous Substances has the meaning set forth in the
Development Agreement.
60. Heat means the Miami Heat Limited Partnership, a Florida
limited partnership, its successors and assigns.
61. Heat Office Lease means the Office Lease Agreement to be
executed by the Manager (on behalf of the County) and the Team, as
it may be amended and/or restated.
62. Home Games means (a) all regular season games and all
playoff games between the Team and other NBA teams for which the
Team is the home team responsible for procuring the playing site,
and (b) such of its exhibition games as the Team plays in Dade
County. Notwithstanding (a) and (b), for purposes of this
Agreement, Home Games shall not include (x) games in which the Team
is the visiting team, (y) neutral site games where the Team is
designated the "home team", or (z) games between the Team and other
NBA teams that would otherwise be Home Games but are not played at
the Arena due to an isolated scheduling conflict, an Abatement
Period or any condition that renders the Arena unusable as a
practical matter.
63. Immediate Familv means any spouse, son, daughter, step
child, parent, step parent, brother, sister, step brother, step
sister or in-law of any individual (by blood or by marriage), or
any trust, estate, partnership, joint venture, company,
11
96- A63
83. Coeratina Expenses means (for each Fiscal Year) all
costs, expenses and obligations of whatever kind or nature made or
incurred by the Manager in managing, operating and otherwise
performing its duties in connection with the Arena as provided in
this Agreement as determined in accordance with generally accepted
accounting principles including, without limitation, costs,
expenses and deposits for (a) training and compensating Arena
personnel; (b) purchasing Arena supplies and equipment;
(c) performing the agreements with respect to and obligations in
connection with the Arena as provided in Section 4 of the
Management Agreement; (d) utilities and other services for the
Arena; (e) Impositions and insurance premiums; (f) repair,
maintenance and restoration of the Arena as provided in this
Agreement; (g) Additions (which are not Capital Improvements);
(h) the amount set aside for the working Capital Reserve pursuant
i
to Section 5.1.1 of the Management Agreement; (i) Advertising; (j)
Soft Concessions and Arena Hard Concessions; (k) marketing the
Suites and Premium Seating including, without limitation
reimbursing the Team for such expenses which it may incur pursuant
to the Suite/Premium Seating Marketing Agreement; (1) promoting the
Arena to the public and the trade, marketing the Arena to potential
users and public relations, including, but not limited to, local,
regional and national conferences, arena management seminars, crowd
management seminars and schools of public facility management; (m)
Communication System expenses; (n) Parking Garage expenses
chargeable to the Manager; (o) building and office supplies; (p)
96- 463 147
travel, lodging and related out of pocket expenses and facility
related entertainment expenses; (q) MasterCard, VISA and other
credit and debit facility and telecheck fees and expenses; (r)
attorneys, fees and expenses of the Manager; and (s) the fees and
costs of the Neutral as provided in Section 20.3. Guaranteed Debt
Service Payments, Management Fee payments, Capital Replacement
Reserve Account Payments, and any other categories of payments
specifically excluded from the definition of Operating Expenses by
the terms of this Agreement shall not constitute Operating
Expenses.
84. Operations Start Date means the earlier of (a) the date
of issuance of a final and unconditional Certificate of Occupancy
for the entire Arena, or (b) the date of issuance of any temporary
Certificate of Occupancy permitting any Event to be conducted.
85. Parking Garage means the parking garage providing the
Manager with at least 200 parking spaces at all times and an
additional 2,300 parking spaces on Event Days, as provided in the
Management Agreement.
86. Parking Garage Operating Expenses has the meaning set
forth in the Management Agreement.
87. Payment Oblicration has the meaning set forth in the
Management Agreement.
88. Permanent Advertising means all Advertising other than
Temporary Advertising.
is
96— 463
:12
89. Person means any individual, trust, estate, partnership,
joint venture, company, corporation, association, or any other
legal entity or business or investment enterprise.
90. Personal Seat License means a license providing the right
to purchase a specific seat or seats in the Arena.
91. Pre -Development DRI Agreement has the meaning set forth
in Section 5.2.2.
92. Prime Rate means the rate of interest announced from time
to time by Capital Bank, or another bank designated by the Manager,
as the bank's "Prime rate" of interest.
93. Private Financincr has the meaning set forth in the
Development Agreement.
94. Proceeding has the meaning set forth in Section 19.11.
95. Project Architect has the meaning set forth in the
Development Agreement.
96. Related Agreements means the Development Agreement, the
Management Agreement and the Team License.
97. Reauest has the meaning set forth in Section 20.
98. Schedule Year means the 12-month period between July 1
and the next June 30, inclusive.
99. Site has the meaning set forth in the Development
Agreement.
100. Soft Concessions means items of food and drink dispensed
or sold at the Facility.
101. Special Use Permit shall have the meeting set forth in
the Development Agreement.
16
96- 463
149
102. Team means the Miami Heat Limited Partnership, a Florida
limited partnership, and its permitted successors and assigns.
103. Team Guaranty has the meaning set forth in Section 4.2.
104. Team' License means the Miami Heat License Agreement
between the County and the Team and joined in by the Manager as the
assignee and agent of the County dated as of the date of this
Agreement, as it may be amended and/or restated.
105. Team/Manager Personnel has the meaning set forth in
Section 21.2.
106. Temporary Advertisingr means Advertising in connection
with any Event which is to be removed or terminated at the
conclusion of such Event including Licensee Advertising and
Advertising for the account of the Arena.
107. Title Defect has the meaning set forth in the Development
Agreement.
108. Transfer has the meaning set forth in Section 16.1.
MTA3-399121.E
150
17
96- 463
EXHIBIT 14.1.3
NON DISTURBANCE AND ATTORNMENT AGREEMENT
This Non Disturbance and Attornment Agreement is entered into
this day of 1996 by and among the City of
Miami, a municipal corporation of the State of Florida (the
"City"); Metropolitan Dade County, a political subdivision of the
State of Florida (the "County); Miami Heat Limited Partnership, a
Florida limited partnership (the "Team"); and Basketball
Properties, Ltd., a Florida limited partnership (the "Manager"),
and is made in reference to the following facts:
RECITALS
A. The City is the owner of that certain real property
legally described in Exhibit "A" hereto (the "Property").
B. The City and the County have entered into an Interlocal
jand Lease Agreement (the "Interlocal Agreement") for the purpose of
developing and operating a Maritime Park Project on the Property
( the "Project") .
C. The Project includes the development by the County of a
professional sports franchise facility (the "Arena") and a parking
garage (collectively the "Facility) on a portion of the Property,
referred to in the Interlocal Agreement as the "FEC Property",
which is legally described in Exhibit "B" hereto.
D. In furtherance of the objective of the Interlocal
Agreement, the County has entered into (a) a Development Agreement
with the Manager to provide for the development of the Facility,•
(b) a Management Agreement with the Manager to provide for the
management and operation of the Facility, and (c) a License
96- 463 151
Agreement with the Team and the Manager providing for the Team to
play its home games in the Arena. The Development Agreement, the
Management Agreement, the License Agreement and the Assurance
Agreement described in paragraph E below are herein referred to
collectively as the "Related Agreements".
E. in conjunction with the Related Agreements, the City, the
County, the Team and the Manager have entered into an Assurance
Agreement for the purpose of providing certain direct covenants to
the various parties thereto in furtherance of the objective to
develop and operate the Facility and retain the Team in the City of
Miami (the "Assurance Agreement").
F. Pursuant to Section 14 of the Assurance Agreement, the
Manager and the Team have requested the City to agree that as long
as they are not in default under any of the Related Agreements
beyond the applicable grace period, their respective rights and
privileges under the Related Agreements shall not be disturbed,
diminished or interfered with in the event of any termination or
cancellation of the Interlocal Agreement. The City is agreeable to
Manager's and Team's request, subject to the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the premises, and
other good and valuable consideration the receipt and adequacy of
which are hereby acknowledged by each of the parties hereto, the
parties do hereby covenant and agree as follows:
1. Recitals. The statements contained in the Recitals are
true and correct and are hereby incorporated into and made a part
of this Agreement.
2. Non -Disturbance. The City agrees that during the term of
the Assurance Agreement, and so long as (i) neither the Manager nor
the Team is in default under this Agreement or any of the Related
Agreements to which each or either of them is a party beyond the
applicable grace period provided therein, and (ii) none of the
obligations of the Manager and the Team under the Related
Agreements have been terminated, the rights and privileges'of the
Manager and/or the Team with respect to the Facility and/or the,
Related Agreements shall not be disturbed, diminished or interfered
with by the City. The City further agrees that, except as required
by law, neither the Manager nor the Team shall be named or joined
by the City as a party defendant or otherwise in any proceeding to
terminate, cancel or enforce any rights of the City under the
Interlocal Agreement.
3. Attornment. In the event of termination or cancellation
of the Interlocal Agreement, the Manager and the Team each agrees
to remain obligated under and to observe and comply with each and
every provision of the Related Agreements to which each is a party
and all other documents executed in favor of the County in
connection therewith or pursuant to any such Related Agreement,
with the same force and effect as if the City was the "County"
under the Related Agreement, and to. attorn to the City as if the
3
96-- 463
153
City was the "County" under the conditions described above. The
provisions contained herein shall be effective and self -operative
without the execution of any further instruments on the part of any
of the parties hereto upon Manager's and Team's receipt of City's
notice that the Interlocal Agreement has been terminated or
canceled. Notwithstanding the foregoing, Manager and Team shall
duly confirm their attornment by appropriate written instrument
upon the request of the City.
4. Countv's Consent. The Countv herebv irrevocablv consents
to Manager's and Team's attornment to the City as provided in
paragraph 3 above. The County's consent shall be effective and
self -operative without the execution of any further instruments..
S. Limitation of Liability. In the event attornment occurs
as described in paragraph 3 above, the City shall be entitled to
all rights, powers, or privileges granted or reserved therein in
favor of the County which shall remain in full force and effect and
shall be binding upon the City. However, in no event shall the
City be liable for any monetary obligation nor any breach of any
covenant or warranty, default or other act or omission of the
County under any of the Related Agreements, nor be subject to any
defenses that the Manager or the Team may have had against the
County under any of said documents.
6. Amendments The City shall not be bound by any amendment
to the Assurance Agreement or the Related Agreements entered into
without its prior written consent, not to be unreasonably withheld
or delayed; although nothing continued herein shall be deemed to
4
154
96- 463
prohibit the County and the Team and/or Manager from amending such
documents.
7. Insurance. County, Manager and Team agree to cause City
to be named as an additional insured, under all policies of
insurance required to be maintained under the Related Agreements,
which policies of insurance will specifically provide for non -
cancellation and no material modification without twenty (20) days
prior written notice to City and to promptly provide City with a
certificate evidencing same.
8. Assignment. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of the parties
hereto (to the extent permitted by the Related Agreements). r
9. Notice. Any written notice, demand or request that is
required to be made hereunder shall be served in person or by
registered or certified mail, return receipt requested, with
sufficient postage affixed to carry it to its intended destination,
addressed to the party to be served at its address set forth below:
County: County Manager
with a copy to: Office of the County Attorney
City: City Manager
City of Miami
City Hall
3500 Pan American Drive
Miami, FL
with a copy to:
5
City Attorney
444 S.W. 2nd Avenue
Miami, FL 33128
96- 463
155
with a copy to each of:
and
Team:
with a copy to each of:
and
6
Basketball Properties, Ltd.
SunTrust International Center
One Southeast Third Avenue
Suite 2300
Miami, FL 33131
Attention: President
Telefax: (305) 372-0802
Eric Woolworth, Esq.
General Counsel
Basketball Properties, Ltd.
SunTrust International Center
One Southeast Third Avenue
Suite 2300
Miami, FL 33131
Telefax: (305) 372-0802
Holland & Knight
701 Brickell Avenue
Suite 3000
Miami, FL 33131
Attn: Bruce Jay Colan, Esq.
Telefax: (305) 789-7799
Miami Heat Limited Partnership
SunTrust International Center
SunTrust International Center
One Southeast Third Avenue
Suite 2300
Miami, FL 33131
Attn: Executive Vice President
Business Operations
Telefax: (305) 372-0802
Eric Woolworth, Esq.
General Counsel
Miami Heat Limited
Partnership
SunTrust International Center
One Southeast Third Avenue
Suite 2300
Miami, FL 33131
Telefax: (305) 372-0802
Holland & Knight
701 Brickell Avenue
Suite 3000
Miami, FL 33131
Attn: Bruce Jay Colan, Esq.
Telefax: (305) 789-7799
96- 463
4i
The above addresses may be changed as to the applicable party by
providing the other parties with notice of such address change in
the same manner provided above; provided however, the address
change must be located within the continental limits of the United
States of America. Such address change shall not be effective on
{ the other parties until receipt of written notice of such change.
In the event that written notice, demand or request is made as
provided in this paragraph 9, then in the event that such notice is
{ returned to the sender whether by hand delivery or by the U.S.
M Postal System because of insufficient address or because the party
moved or otherwise other than for insufficient postage, such
I
writing shall be deemed to have been received by the party to whom'
it was addressed on the date that such writing was initially placed
in the U. S . Postal System by the sender or was attempted to be hand
delivered by the sender.
10. Integration. This Agreement is the entire agreement
among the parties with respect to the subject matter hereof and
supersedes all prior agreements among the parties with respect
thereto.
11. Severability. The provisions of this Agreement are not
severable. If any provision of this Agreement or the application
thereof to the City's obligations hereunder shall be invalid or
unenforceable to any extent, then the City's obligations under this
Agreement shall be likewise invalid and unenforceable.
12. Effective Date. This Agreement shall be of no force and
effect whatsoever until all parties duly execute it.
157
13. Florida Contract. This Agreement; constitutes and shall
be deemed a Florida contract and shall be interpreted under the
laws and in the courts of the State of Florida, regardless of
whether this Agreement is being executed by certain of"the parties'
hereto in other states.
14. Headings. The headings of the paragraphs contained in
this Agreement are for convenience of reference only and do not
form a part hereof and in no way modify, interpret or construe the
meaning of the parties hereto.
15. Termination. This A,:reement shall remain in full force
and effect at all times until the expiration or termination of the
Assurance Agreement.
16. Modifications. This Agreement shall not be modified or
amended except in writing executed among the parties hereto.
17. Benefit. This Agreement shall be binding on and shall
inure to the benefit of the parties hereto and their respective
successors and assigns.
18. Attorney's Fees. If any party brings an action to
enforce the terms hereof or declare rights hereunder, the
prevailing party in any such action on trial or appeal, shall be
entitled to its reasonable attorney's fees and costs to be paid by
the losing party.
IN WITNESS WHEREOF, the parties have executed this Agreement
on the day and year first above written.
MIA3-402263.3
8
158 96- 463
HTIGHLIGHTS OF
JUKE 139 1996
�7
96- 463 '
The Capital Project
The funding of the Arena
..v'. ::4 \` 4\x .Y�`` ,'rY •4 .vC � a0 � v�.+ �,tti. �:v „i ^„ � 'k.,Y `c}{ .,. '� `ui ..
■ A $41 million cash contribution from the Heat; and
A County tax exempt bond issue of approximately
$131 million paid for, over the life of the bonds, by:
State sale tax rebates of $2 million per year;
®dual guaranteed debt service payments from the
Miami Heat of $837,000; and
County Convention Development Taxes (CDTs)
ranging from $5.3 to $13 million per year.
■ Approximately $7 million of County wide Sales tax
will be pledged to the bonds on a secondary basis.
County CDTs support 58% o of the arena's cost and
revenues and cash contributions associated with the
Miami Heat support 42%.
■ (Note.: The payment of the $41.3M and the annual
$ 83 7, 000 by the Heat is equivalent to a $ 5.5M annual
payment).
9
96- 463 5
The funding of the Parking
One taxable bond issue of approximately $27.3
million paid for by revenues related to non-event and
non -port related parking in the 3,400-space parking
garage, and event parking at a 2,000-space parking
lot at the Port of Miami.
■ Miami Heat parking revenues will serve as the
secondary pledge of revenues on the bonds.
■ The bonds must be issued by an entity other than the
County.
m.(Note; 900 parking spaces for retail and port use in
the 3,400-space parking garage are being fituded.
Separately by Seaport and Maritime Park revenues).
96- 463 6
F1
The Capital Deserve Fund
,;•c� �� � ,�: � .fir � 4.a � c;� .., A: {• ,o; :ic` �. u:: ... •>:? ...
Over a three year period, the City of Miami will
deposit $9 million into a Capital Reserve Fund.
® These monies, along with projected residual CDTs
and interest earnings, will be used to protect the
Secondary Pledge from unbudgeted use for debt
service.
96- 463
PART
The Funding of the New Arena
A) Concept
The new arena's estimated construction cost of $165 million is to funded by one, tax-exempt County bond
issue and a cash contribution by the Miami Heat. The bonds will be issued as fixed rate bonds and will have a
surety policy for a debt service reserve.
The bonds will be repaid by a number of non -general fund related revenue sources. The secondary
pledge of bonds will be a general fund revenue, namely the County's Sales tax. All efforts will be made to
prevent the use of the secondary pledge for bond repayment.
B) Percentage of the $165M New Arena Construction Cost Funded by:
Public Sector
Convention Development taxes $95,170,827 57.68%
State Sales Tax Reimbursements 19,516,513 11.83%
Private Sector
Miami Heat Cash Contribution 41,321,212 25.04%
j Miami Heat Annual Payments 8,9911448 5.45%
$165,000,000 100.00%
C) Revenues Available For Bond Debt Service
The following sources of revenues will be used to repay the debt:
1) A Sales Tax Rebate from the State of Florida which can only go to a facility in which
the Miami Heat plays ($2 Million per year);
2) Annual Payments from the Miami Heat ($837,000 per year);
3) Net Post -PAC Convention Development Taxes left over from the financing of the Performing
Arts Center (ranges from $5.3 Million to $13.0 Million).
Exhibit I breaks out these revenue sources by fiscal year.
D) Estimated Bond Size and Debt Service Related to the New Arena
1) Bond Size:
Net Acquisition fund (with interest earnings = $123.7M) $108,920,309
Debt Service Reserve Fund Surety Policy 3,995,785
Net Capitalized Interest (2 Yr.- with i. earnings = $16M) 14,987,306
Costs of Issuance 1,770,340
"Costs of Bond Insurance (.35%) 1,221,260
Total $130,895,000
2) Exhibit I breaks out the net debt service of the bonds by fiscal year.
96- 463
0 •
PANT I
The Funding of the New Arena (page 2)
E) Revenue Coverage Requirements of Debt Issue
1) Expected Revenue Coverage =150%
2) Annual pledge of revenues needed:
100% Covered by the Primary Revenue pledge i.e.. the revenue source list in (B) above
5_Q.OA Covered by the Secondary Revenues pledged i.e.. Sales Taxes.
150%Total Coverage
3) Conclusion: Given the expected size of debt service payments, approximately $7 Million
of Sales Taxes will need to be pledged to this bond issue.
F) Protection of the Secondary Pledge from shortfalls in Primary Revenues
1) The only component of the pledged revenues which is not locked up contractually is the
Post -PAC Convention Development Taxes (CDTs). Although we believe the projection of revenues
to be conservatively realistic, the CDTs can be affected by downturns of the County's tourism industry.
2) In order to protect the County's general fund from unexpected draws because of shortfalls of pledged
revenues, the following actions are proposed:
a) Whenever residuals CDTs exceed the amount committed for debt service, they will be held in a
trust account to offset deficiencies of debt service, if any. Under the column entitled "Excess
Revenues", Exhibit I projects what these deposits to the Trust account will be if the residual CDTs
meet their projections; and
b) The City of Miami will fund from future appropriations a "Capital Reserve Account"
to offset any debt service deficiencies that the account in 2(a) above does not
cover. The future funding of this account is expected to be $3 Million per year for a period of three
years commencing in Fiscal Year 1997. Exhibit II demonstrates how the Captal Reserve Fund will
grow assuming no draws for debt service deficiencies.
The protection mechanism that we are implementing guarantees that at least $9 Million will be reserved,
by the time the first debt service payment is due, to serve as a cushion against any draws on the general
fund for debt service payments.
96- 463 913
In* P&A Aos,& Pm4ect
-Pm 13wrsa #m
W% Fa mj CDT Ravemm to Amm Project Cats
Y�
DRAFT FOR REVIEW
------ --- ------
Saks Tax
Rebate
Nei
Pal -PAC
cur
Total
Miami Heal
Pa 'meal
DmIopmeal
Rights
Nympt
TOW
Revr ms
Ravenues
Applied to
Project Coals
Tax-1 x=pt
Debt Service
SD -
1s'xoass
Rom s _
$430,201
PTagp
10101/96.
$2,131,005 $2,151,005
$2.151.005
$1,720.804
10/01/97
3,850,318
3,850.319
3.850,318
3,08D,254
0
770.064
10/01/98
4.200,197
4,200,197
4,200.197
3,360,159
0
940.039
10101M
': S2,000,000
9,857,510
11.857,SIO
� MUM
SD
12.694,510
11,610,450
1.094.060
1.09
10101/2000
2,000.000
S.615,532
7,615,5321
837,000
0
8,452,S32
7,958.748
593.785
1.09
IOIOIIMOI
2,0W.WO
6.093,776
9,093.7761
837,000
0
9,930,776
7,858,748
1.072,029
1.14
MOIr=
2.OW.000
6.527.861
8,S27.861
, 837,000
0
9,364,961
8.2S3.748
1,111.114
1.13
10/01/=
2.0M.000
3.499.722
7.499.792
937.000
0
8,336,782
7,938,603
498.180,
1.06
10/Ol/2004
2,000.000
7,066,893
9.066.993
837,000
0
9,903,893
8.758.603
1,145,291
1.13
10/01l2005
2.000,000
5,375,963
7,375.995 '
837,000
0
8,212,985
7,799,843
423,143
1.05
10/Ol/2006
2.00D.000
5,379,618
7.379,618
937,000
0
8,216,618
7,789.843
426,776
1.05
10/01/2007
2.000.000
S.981,033
7.981,033
837,000
0
8.818.033
7.789,843
1,028,191
1.13
10101/2008
2.000,000
9,324,374
11,324,374
837,W00
0
12.161,374
10,924.943
1,236,532
1.11
10/OI/2009
2.000,000
9,491,394
11,481,394
837,000
0
12.318,394
11,086.148
1,232.247
1.11
10101/2010
2.000,000
6,S68,S73
8,568,573
837.000
0
9.405,573
8.169,598
1,233.976
1.15
10101/2011
2.000,000
6.777,130
B.777,130
817,000
0
9.614,130
9,379,758
1,234,373
1.15
10001/2012
2.000,000
6.933,940
, 9.933,940
937,000
0
9,770,940
8.534,365
1,236,57S
1.14
IMI/2013
2,000,000
7,165.611
9.165,611
837,000
0
10,002.611
8.770,565
1,232,046
1.14
10/01/2014
2,000.000
7,318.BD2 9,318,002
837,000
0
10.155.802
8.922,395
1.213.407
1.14
I(MI/2015
2.000,000
7.555.526
' 9,553,526
837,000
0
10,392,526
9,IS8.510
1,234,016
1.13
10101/2016
2,000.000
7.812,226
; 9,812,226
837,000
0
10,649.226
9,412,315
1,236,711
1.13
t0/01/2017
2,000.000
•8.016,323
! 10,016,323
$37,000
0
10,853,323
9.617,843
1.235,481
1.13
10/0112019
2.000,000
8,339.674
10,339,674
937,000
0
11.176,674
9.941.030
1,235,644
1.12
10101/2019
2,000,000
8.619,497
10,619,497
837,000
0
I II4`-;'- 07
10,223.468
1,233,030
1.12
101O1i1.020
2.000,000 '
8,907,760
10.WI.760
837,000
0
11,744,160
10,S10,770
1,233,990
1.12
101010Z021
2,000,000
9,236,992
11,236.092
$37,000
0
12.073,892
10,838,S90
1,235,302
1.11
1l>d0I=
2.000,000
9,647.366
11.647,366
837.000
0
12,484.366
11,249,210
1,235,156
1.11
101101/2023
2,000.000
9,983,507
11.983.S07
837.000
0 12.820,S07
11,S85,190
1,235.317
1.11
10101=4
2.000,000
10,322,263
12,322,263
837,000
01 13,159,263
11,923,390
1.235,873
1.10
IWI/2025
2.00D,000
10,670,650
12,670.650
937,000
01 13,507.650
12.271.020
1,236.630
1.10
IOPOV2026 ;
2.000.000
11.035.756
13.035,756
837,000
01 13,872.756
0'
12,639.670
13,023,000
1.233,086
1.232,411
1.10
1.09
1010112027
2,000,000
11,420.411
13,420.411
837,000
14,257,411
10101/ZOmB
2,000,000
11.811.901
13,911,901
$37,000
01 ' 14.648,901
13,412.813
1,236,089
1.09
10101/2029
12,217.587
12.217.587
837.000
0 + 13 054,587
11,823,438
1,231,150
1.10
IO/01/2030
12,634,917
12.634,917
837,000
0
13,471,917
12,236,563
1,23S,35S
1.10
10/01/2031
13,071,426
13.071,426
837.000
0
13.908.426
12.675,625
1.232.801
1.10
560,000,000 $292 473 016
352 473 0t6
S27,ti21,000
- _.� ,ir�380,094,016
SS f61,216
332 880 738
S39,052 O
Y!_'
EXHIBIT II
City of
Fiscal
Miami
Interest at
Yearly
Balance with
Year
Contribution
5%
Total
no draws
1997
$3,000
$0
$3,000
$3,000
1998
$3,000
150
3,150
$6,150
1999
$3,000
308
3,308
$9,458
2000
473
473
$9,930
2001
497
497
$10,427
2002
521
521
$10,948
2003
547
547
$11,496
2004
575
575
$12,070
2005
604
604
$12,674
2006
634
634
$13,308
2007
665
665
$13,973
2008
699
699
$14,672
2009
734
734
$15,405
2010
770
770
$16,176
2011
809
809
$16,984
2012
849
849
$17,834
2013
892
892
$18,725
2014
936
936
$19,661
2015
983
983
$20,645
2016
1,032
1,032
$21,677
2017
1,084.
1,084
$22,761
2018
1,138
1,138
$23,899
2019
1,195
1,195
$25,094
2020
1,255
1,255
$26,348
2021
1,317
1,317
$27,666
2022
1,383
1,383
$29,049
2023
1,452
1,452
$30,501
2024
1,525
1,525
$32,026
2025
1,601
1,601
$33,628
2026
1,681
1,681
$35,309
2027
1,765
1,765
$37,075
2028
1,854
1,854
$38,928
2029
1,946
1,946
$40,875
2030
2,044
2,044
$42,919
J
2031
2,146
2,146
$45, 064
2032
2,253
2,253
$47,318
95- 463 11
The Funding of the Parking Dedicated to the New Arena
■.moo ��r..r.�r•■�rr.� _ � , ■. ,er��■■
The New Arena calls for the construction of a 2,500 space parking garage which is to be made
available to the Miami Heat on all arena event days. The Miami Heat would retain the revenues from
the parking garage during these periods. However, the demand for parking on event days is expected
to exceed the supply of spaces. This creates the opportunity to offset a portion of the cost of the
parking garage by providing additional parking to the patrons of the arena and dedicating the
additional revenues generated to the repayment of the debt associated with the parking garage.
To accomplish this the Seaport will lease to a Parking Operator, 2,000 parking spaces at the
Port of Miami and 600 spaces of Maritime Park parking, both for use only on arena event days. The
Parking Operator will also manage the new arena parking garage. The revenues from the leased
properties along with those from the use of the parking garage on non-event (Jays, less the Operator's
combined operating expenses, should generate enough revenues to repay the debt issued to construct
the parking garage.
B)- Revenues Available for Debt Service - Per Desmen Associates Relay 6. 1996 (in 000's of SU)
Based on 3100 spaces 2500 spaces for the Arena and 600 spaces related to Maritime Park.
Gross Revenues
Net Revenues
Parking Garage'
100 Events 150 Event
100 Events
150 Events
8 spaces per 1000 sq. ft
s
2,660 $2,427
1,690
T1.590
10 spaces per 1000 sq. ft
$3,240 $2,900
$2,270
$2,070
12 spaces per 1000 sq. ft
$3,800 $3,380
$2,830
$2,550
Parking Lod
$842. $1,263
$716
$1,073
Combined Garage and Lot
Minimum Revenues
$3,502 $3,683
$2,406
$2,663
Mid Revenue
$4,082 $4,163
$2,986
$3,143
Maximum Revenues
$4,642 $4,643'.
$3,546
$3,623
These revenues are from non-event days only.
C) Cost of Providing 2.500 Parkins
Spaces to the Arena
2,500 spaces needed times
_
$8.800 Estimated cost per space per Desman Associates
S22.0001M Estimated cost of Parking Structure
D) Estimated Bond Size and Debt Service related to providl 2 500 Parkins Spaces to the Arena
1) Bond Size:
Net Acquisition fund (with interest earnings = $22M) $21,396,086
Debt Service Reserve (10%) 2,566,073
Net Capitalized Interest (1 Yr.- with interest = $ 2.3M) 2,054,005
Costs of issuance 410,775
Costs of Bond Insurance (1.25%) 9�58,061_
Total $27,385,000
96- 463
f -'Y
;ra ,
The Funding of the Parking Dedicated to the New Arena (page 2)
$2,568,390 Maximum Principal and Interest of Bonds times
1500 Revenue Coverage
S3.852.585 Minimum Amount of Revenues needed to be pledged
3) Conclusion: The parking revenues from the garage which are to go to the Miami Heat need
to be pledged to the bonds in order to meet the revenue coverage requirement. At mid
activity level (10 space demand per 1000 square feet of retail), actual debt service should
easily be covered by parking revenues not dedicated to the Miami Heat.
Q Debt Issuer
in order to lease Seaport property for parking and take advantage of arena patron parking revenues,
the issuer of these bonds must be an entity other than the County. We anticipate approaching the City
of Miami's Department of Off -Street Parking for assistance in this regard.
WCJWXN=- cl• •L. • • 1 • •MZIM
1) The Parking Operator collects all parking revenues from the 2,000 space lot, the 600 spaces
at Maritime Park, and the 2,500 space parking garage. The Operator will account for these
revenues separately and report their balances to the Trustee, the Miami Heat, and the
Seaport Director on a monthly basis. In regard to the revenues of the 2,500 space garage,
the Operator shall also separately account for event versus non-event revenue.
2) The Parking Operator will send all revenues to the Trustee on a monthly basis.
3) The Trustee will on a monthly basis:
a) fund the principal and interest requirements of the bonds;
b) pay to the Operator his operational expenses and mgmt. fee;
c) pay the lease payments to the Seaport and Maritime Park;
d) pay to the Miami Heat; the revenues from the 2,500 space parking garage related to
events; and
e) retain any remaining balances to cover deficiencies, if any.
4) At the end of the bond year and after the required payments describe in #3 above,
the Trustee shall remit the balance cumulatively retained and still available from 3(e) above
to the Maritime Park. This amount, if any, represents the unused eamings from the 600
spaces at Maritime Park plus an additional lease payment pursuant to its lease with the
Operator.
17
Part I,SUPPORTING DOCUMENTATION
,1) P.G. Corbin/SMA number run
2) Opinion letters that say they've review plan and all is A from their areas of expertise:
A) P.G. Corbin/SMA
B) Rauscher Pierce
C) County Attorney
D) Greenberg Traurig
E) Bermello and Ajamil
18
ti
j
96- 463
14
JUN"tlJ--1yyb dI J�
r,u. Lur<b�ry
4!15 568 9786 P.10/13
DADS MINTY, FLORIDA
Maritime Perk Arens
Series 1996
Tax -Exempt Sorrowing
PROJECT SUWWY
Dated 10/0111946 Delivered 10/01/19%
SOURCES AND USES OF FUNDS
Par Aeueunt of Sends ...............................
5130,89S,000.00
TOTAL SOURCES
f130,119S,DO0.00
Total Underwriter's Discount (1.000%)............
1,308,950.W
Costs of Issuance.......4..... ........
.......... ..
458,132.SO
Gross Bond Insurance PreMiva ( 35.0 bp)...........
1,221,260.73
DSRF Surety Policy (2.50%)........................
3,99S,78S.34
Deposit to Capitalized Interest (CIF) Fund........
14,987,306.01
Oepoait to Project Construction Fund ..............
108,920,309.1S
Reundin9 Am"t...................................
3.256.27
TOTAL USES
S130,893,000.00
FLOW OF FUNDS DETAIL
PROJECT COYSTRUCTION FUND SOLUTION NETNOD
Net Funded
Total Cost of Inv estwe+eta.........................
$108,9s^,G•.309.15
Interest Earnings a 5.800%........................
6,30.a63.42
TOTAL DRAYS
S1Z3,6.'d.TS8.5T
CAPITALIZED INTEREST FUND SOLUTION NITHOO Net Fended
Original band Proceed.. ........................... 16,987,306.01
Accrued Interest ...................................
Interest Earnings 2 9.600%........................ 1,063,593.99
TOTAL ORAYS s16,050,900.00
SM STATISTICS
Avers" Life ...................................... 26.576 Years
Avers" Cos+pen.................................... 6.19745U%
Net Interest Cost(VIC)........................... 6.2346S89%
lend Yield for Arbitrw Purposes ................. 6.2558313%
True Interest Coat (TIC) .......................... 6.2612203%
All Inclusive Cost(AIC)........................... 6.6228%3%
P.G. COMM & Company, Ine.DE\MMIPMX\LATEST\JUNEA-te4-ARENA POST PAC
Independent Financial Advisora 6/ S/19% 8M PN
96- 463 19
j5
.-a✓ .400 J.00 r.'A' ✓
'
CADE COUNTY, FLORIDA
Maritime Park Arena
Series 1996
Tax -Except Borrowing
PRICING SUMMARY
MATURITY TYPE OF BOND COUPON
YIELD
ISSUANCE VALUE PAR
MATURITY VALUE
PRICE
DOLLAR PRICE
10/01/1997 SERIAL
COUPON 4.050%
4.050%
- 100.000X
-
100,000%
-
10/01/1996 SERIAL
COUPON 4.450%
4.450%
- 100,000%
-
100.000%
-
10/01/1999 SERIAL
COUPON 4.650%
4.650%
3,585,000.00 100.000%
3,535,000.00
100.000%
3,585,000.00
10/01/2000 SERIAL
COUPON 4.050%
4.350%
- 100.000%
-
100.000%
-
.*.:Io 4lf10 r:MrAL > COtIPdf: <.'S.000%;:;5:000X:'
:::,:'•. ..:
..
•100:000x •
10/01/2002 SERIAL
COUPON 5.100%
5.100%
395,000.00 100.000%
395,000.00
100.000%
395,000.00
10/01/2003 SERIAL
COUPON S.200%
5.200%
100.000%
100.000X
.
10/01/2004 SERIAL
COUPO1t 5.300%
5.30OX
920,000.00 100.0=
920,000.00
100.000%
920,000.00
10/01/2005 SERIAL
COUPON 5.400%
S AM
- 100.000%
100.000%
-
aoro»�ood••�Eiti� •-
:. ; sac:• : sac�o�
• • ... : �; : aog.'vomc=:.
...... .. . .
:Ioo;.1100% ..
• • -
10/01/2007 SERIAL
COUPON S.600%
5.600%
100.000%
100.000%
-
10/01/2000 SERIAL
COUPON S.7=
5.700X
3,135,000.00 100.000X
3,135,000.00
100.000%
3,135,000.00
10/01/2009 SERIAL
COUPON S.WU
5.800X
3,475,000.00 100.000%
3,475,000.00
100.000%
3,475.000.00
10/01/2010 SERIAL
COUPON 5.900%
5.900%
760,000.00 100.000%
760 000.00
100.000X
760 000.00
:::ii0i i,t2 k:SERrAi .:c0ii�it
5,4307r':=
ss9309~
°l;Ql3;nOQ:00 iDO;
-:. Y,013 Oo0:L�D '
m.
s0M'
t,.C15,000.00' •
10/01/2012 SERIAL
COLON 6.000%
6.000%
1,230,000.00 100.000%
1.230,000.00
100.000%
1,230,000.00
10/01/2013 SERIAL
COUPON 6.05OX
6.050%
1,540,000.00 100.000%
1,560,000.00
100.00"
1,340.000.00
10/01/2014 SERIAL
COUPON 6.100X
6.10OX
1,705,000.00 100.000%
I'M.000.00
100.000%
I.M.000.00
10101/201S SERIAL
COUPON 6.150%
6.150%
2,130,000.00 100.000%
2,130,000.00
100.0=
2,130.000.00
::tOlOar2016:SEAtIit:'L'OtlPa
-4:-
TW.'W -
2;515;000.00'
10/01/2017 SERIAL
COUPON 6.150%
6.150%
2.875.000.00 100.0m
2,075.000.00
100.000%
2.573,000.00
10/01/20ib SERIAL
COUPON 6.15021
6.150
3,375,000.00 100.000%
3.375,000.00
100.000%
3.375,000.00
10/01/2019 SERIAL
COUPON 6.150%
6.1501
3,Ul65,000.00 100.000%
3,865.000.00
100.000%
3,66S,000,00
10/01/2020 SERIAL
COUPON 6.200%
6.200%
4.390,000.00 100.0002
4.390.000.00
100.000%
4,390.000.00
1..010.1720vi.•SETAE'.:Cgt�@pF:.M:6:Z0.D.>5:-
..2Eit :::� bi�40wQOR.Q9+;._'Tt �l6AE�r:: '4z. ,AOt1,b9:
T00:A00x
4,991i10G0.00_,
10/01/2022 SERIAL
COUP061 6.200%
6.200%
5,710,000.00 100.0002
5,710,000.00
t0O.000%
5,710,000.00
10/01/2023 SERIAL
COUPON 6.200%
6.200%
6,400,000.00 100.000%
6,400,000.00
100.000%
6.400,000.00
10/01/2024 SERIAL
COUPON 6.20OX
6.200%
7,135,000.00 100.000%
7,135,000.00
100.000%
7,135,000.00
10/01/2025 SERIAL
COUPON 6.200%
6.200%
7,925,000.00 100.000%
7.925,000.00
100.000%
7,92S,000.00
::10f01 f202B�ER17I1::
CC11P011=?- :6:20WFe'".
6'200X+=:'' 87dtr04066?:1000005�. = d7;00 D0= :10G:DD0:4''
:S • E{,'T.BS,OOD08•
10/01/2027 SERIAL
COUPON 6.250%
6.250%
9,713,000.00 100.000%
9.715,000.00
100.0002
9.715.000.00
10/01/20Pd SERIAL
COUPON 6.250%
6.250%
10,710,000.00 100.000%
10,71C,000.00
100.000X
10,710,000.00
10/01/2029 SERIAL
COUPON 6.25OX
6.250%
9,790,000.00 100.000
9,790,000.00
100.000%
9,790,000.00
10/01/2030.SERIAL
COUPON 6.25OX
6.25OX
10,815,000.00 100.00011
10,1115,000.00
100.000X
10,Ul1S,000.00
::1f)LQ.1•%203t, SERIAL::': C'OiJP01i':°::�:Er.250Xs'-Y
625�.'%.�1;1-'930:�Q0'ti1�•'`�Q�17E0X':`>2%1';�3Qy.08it.'.00;:�400�'IOQi:._1a,430,fltK}:OD::
TOTAL
-
130,89S,000.00
130,095,000.00
-
130,693,000.00
810 INFORMATION
Par Amount of Bands ............................... 9130,11%,000.00
Gross Production $13014951000.00
Total, Underwriter's Discount (1.000X)............ (1,3m,950.00)
Bid 129,5E6,050.00
Total Purdww Price 2129,5m,050.00
Bard Vow Dopers ................................. S3,518,165.00
Average Life ...................................... 26.M Years
Avenw Coupon .................................... 6.1974534%
Not Interest Cost(NIC)........................... 6.2346S69%
True Interest Cost (TIC) .......................... 6.2612203%
P.O. Corbin i Compm y, Inc. FILE w Cs\DADC\NMPARK\LATEST\JUME-4-ts4-ARENA POST PAC
Independent Financial, Advisors 6/ S/19% 5:33 PM
96- 463
I(
DADE MMTT, FLORIDA
Meritime Perk Arens
Series 1996
Tex -Exempt Borrowing
MET DEBT SERVICE SCHEDULE
DATE
PRINCIPAL
cot"
INTEREST
TOTAL P+I CIF
MET H[Y a/%
10/01/1996
-
-
-
-
-
10/01/1997
-
-
8,025,450.00
8,025,450.00 (8,025,450.00)
-
10/01/1998
-
-
5,025,450.00
8,025,450.00 (8,025.450.00)
,3,585,000.00
4.650%
8,025,450.00
11,610,450.00
11,610,450.00
.1p0/01/199q,.,
'•.'.•70701/'ZODO:`:...,.;.
..:.. .:.•
::.::;•:.;...•7�85$i7i7.•50•'..:'::Y•836:'7,4T•.30::::,....
.... ••
.T;ZSStl.7T►7.50
10/01/2001
-
-
7,858,747.50
7,859,747.50 -
7,858,747.50
10/01/2002
395,000.00
5.100%
7,BS8,747.50
a,253,747.50 -
8,253,747.50
10/01/200
-
7,08,602.50
7,838,602.50 -
7,836,602.50
10/01/2004
920,000.00
5.300%
?,AM,602,50
8,7M,602j.�5.0-
a.75a,662.50
1�/11'2bQ3
........... ......
?,7a9,S42;3R:
..
..7.j789,8:42i50
10/Ot/2006
-
7,789,842.50
771l9662.30 -
7,789,342.50
10/01/Z007
7,789,842.50
7:70:642.50 -
7,789,642.50
10/01/200a
3,135,000:00
5.700%
7,789,842.50
10,924,842.50 -
10,924,842.50
10/01/2009
3,475,000.00
5.800%
7,611,147.50
1.1,086,147.50 -
11,086,14T.S0
10/01/2011
10015,000.00
5.950%
7.364.757.30
$1379,757.50
5,379,757.50
10/01/2012
1,230,000.00
6.000Z
7,304,365.00
8,534,365.00
8,534,365.00
10/01/2013
1,540,000.00
6.050%
7,230,565.00
8,770,565.00 -
$1770,565.00
10/01/2014
1,785,000.00
6.1001
7,137,395.00
6,922,395.00 -
8,.922,395.00
54'dj Q:
10/01/2016
2,S1S,000.00
6.150%
6,897,515.00
9,412,115.00
9,412,515.00
10/01/2017
2,a75,000.00
6.150%
6,742,842.50
9,617,842.50
9,617,842.50
10/01/2018
3.375.000.00
6.150%
6,566,030.00
9,941,030.00 + -
9,941,030.00
10/01/2019
3,a65,000.00
6.1SO%
6,358,467.50
10,223,467.50 -
10,M 467.50
�YiTZ?��:.:4i►0Ei0iOQz'.:6�011:i.76120;778:00:�..:jO�5e1ff�x7D`:09;-
..
10�StQ�770..00.
10/01/2021
4,990,000.00
6.200%
5,848,590.00
10,838,590.00 -
10.836.590.00
10/01/2022
5,710,000.00
6.200%
5,539,210.00
11,249,210.00
11,249,210.00
10/Oi/M
6.400.000.00
6.200%
5.163.190.00
11.545.190.00 -
ll,585,190.00
10/01/20PA
7,135,000.00
6.200%
4,755,390:00
11,923,390c00 -
11,923,390.00
_
1oya1=...=��zs;croa:o�,:.::oti:-::=x;.s�;ozc9a��.
�2,�n,z:z.�a�..... • ... .....
�2•;zr.TT,oza:oa •
10/01/2026
G.M.OW. 00
6.200%
3,854,670.00
12,639,670.00. -
12,639,670.00
10/01/2127
9,715,000.00
6.250%
3,310,000.00
13,025,000.00 -
13,025,000.00
10/01/2028
10,710,000.00
6.250%
2,702,612.50
13,412,612.50 -
13,412,312.50
10/01/2029
9,790,000.00
6.250%
2,033,437.50Y^•_
11,W.437,50
11,823,437.50
.:.1al ,czc;ais,Boa:oa`
.::2saY.......�a
-
.::wsZ;�23d rjir ....., ,.. ...........
124NSM.50:
10/01/2031
11,930,000.00
6.50%
745,625.00•
12,675:625.00 -
12,675,625.00
TOTAL
130,895,000.00
-
218,036,637.50
348,931,637.50 06,050,900.00)
332,880,737,50
P.O. Corbin i Compwry, Inc. FILE ■ C:\CAOEVYIR UMLAtEST\AXE4-te4-AREM POST PAC
1ndeW xWit Finencisl Advisors 6/ 5/19% 9:00 PN
96- 463
DADE CONY, FLORIDA
MAritime Park Atom
Series 1996
ISK-Exempt sorrowing
OPERATION OF PROJECI CONSTRUCTION FUND
DATE
PAINCI6AL
RATE
INIERECI DEPOSITS
RECEIPTS
DISBURSEMENIS
CASH DALARCE
10/01/1996
S17,724.76
5.6000000%
(517,724.76) -
0.14
0.14
11/01/1"6
14,464,896.83
5.8000000%
5170724.76 1.T20,804.00
16,703,425.59
16,703,425.59
0.14
12/01/19%
1,754,784.38
5.S000ODOX
448,641.21 -
2,203,425.59
2,203,425.S9
0.14
, 1/OI/1997 �,{,1,7631163.15 ..
L 5.6000000%
„ K,260.0 2,203,425.58
.;:;..���Q'�,4�:fq� .
24203425.59
;x;tos;xs;ss....
0.13
3/bi/1997
2,200,046.90
5.80000110%
4230378.611 -
2,703,425.58
2,703,425.59
0.12
4/01/199Y
2,490,936.29
5.8000000%
412,489.30 -
2,903.425.59
2,901,425.59
0.12
5/01/1997
3,502,832.86
S.
400,592.73
3,903.425.59
3.903,425.59
0.12
6/O1/1997
?`'s'>�lO�1)ai4Te�fE
i 519 Sb2.20
4�:�iCisJiit:f
..S.e000000% 3e3,863.3D -
.��s1:A40d1�b0�f"►►., •�::;;;..,.4YV{13{li$$Nadi:.'•).4i�3:42ii59.:•..•.•:'':{.'.;..d'�1,1;.
4,903.425.59
4,403,425.59
0.12
8/0111"?
3,S62,83S.64
5.80000o0%
340.589.94
3,903,425.55
3,903,425.59
0.10
9/01/1997
3,079,851.5E
5.8000000%
323.S74.04
3,403,425.59
3,403,425.59
0.10
MOW"
14,306.75
5.8000000%
308,864.83 3,150,254.00
3,403.425.50
3,403,42S.59
0.09
11/01/1"?
BkS.412!of tier°:
3,094,629.08
i...60M1.a1
S.8000000% 305.,796.51
... ,
:c:lsa0 laiatvs ;... .. ...:�;
3,403,425.59
•� :9nsa s:$d ..
3,403,425.59
.3 poi
0.09
..
1i0ume
4,626,647.19
5.8000000%
276, M.39 -
4,903,425.58
4.903,425.59
0,07
2/01/1998
4,148,143.a0
5.80000wx
254,650.To
4.403,425.58
4,403,425.59
0.06
3/01/1998
3,668,SS7.98
5.8000000%
234,667.61 -
3.903,425.59
3,901,425.59
0.06
4/01/1996
>f�'s�'Il01%1
„ 5.166 078.81
t�"�6'�i!!4�lli'�►,�
5.5000000% 2171346.78
`» $�dOaAQQOx' f;i�4'!•ilfl7d►:�i+:,:!;. � '• ;�
$1403,425.59
:tb;44$',A$Si'.$b�•
5,403,•425.59
'•.b:.�ib11;629:59�.
0.06
.::• :.•:r:i•:'.D::6S:
6/01/1998
8,240,S09.89•
5.8000000%
162,915.69
0.403,425.50
8,403.42S.S9
0.04
7/01/1998
7,219,666.11
S.8000000%
12I3,5S9.47
7,403,425.50
1,403,425.59
0.03
8/01/19M
7,014,634.36
5.8000000%
08,791.23
7.903,42$.S9
T.903,425.59
0.03
9/61/1998
s�#sT4%T%1'i`si;f!
3 851 936.61
t;�y�:.2.404;O40:b�o::
5.8000000%
51 460.97 -
3,903,425.58
3 903,425.59
0.02
11/01/1998
1,806,611.81
5.8000000%
33,230.19
1,839,842.00
2,600,000.00
0.03
12/01/1998
2.075,398.09
S.8000000%
24,601.91 -
2,100,000.00
2,1D0,000.00
0.03
1/01/1999
1,Se5,310.07
5.8000000%
14,689.92 -
1,599,999.99
1,600,000.00
0.02
2/01119"
;112i10U.199iYyli
992 081 42
'. 14�12. mial
S.80000O0XY
'06; di llGG
7,118.57 -
2;3fi6:d2 .
999,999.99
ti9D;9i 1:99
1,DOD 000.00
300;000'
0.0 1
•
TOTAL
108,920,309.01
d,597,263.42 8,ib1,216.00
123,678,7ee.S7
123,678,788.57
P.O. Caeb n cco wty, Inc. FILE • C:\OAOE\MARPARK\LATESI\JUNE4-te4-ARENA POST PAC
IrJgm dlnt Flnomf.l Advloors 6/ 5/1996 8:33 PM
0
96- 463 23
narking Osrage Faeitity
Taxable Finsnaing
no 1pw* awe"
PROJECT SMARM
Dated 10/01/1997 Delivered 10/0W997
tIYIRClS Ale USE! OF M Mi1
Par Amount of,onda ............................... U7,285,000.00
TOTAL SCUMS $27,36,000.00
Costs of la/NanOf.................................
410,775.00
Cross Send insurance rremi:e (125.0 bp)...........
93i,060.72
Deposit to Debt Swvioa Reserve Full (OSRF).......
2,666,072.60
Deposit to Capitalized interest (CIF) Fund........
2,054,0".61
Deposit to Project Construction Fund ..............
21,3ii3,741..34
Rounding Amount ...................................
2,362."
TOTAL UMS
S27,346,ON 00
FLOW Of FUN D4 04TAIL
PRIMACT C011iiTIM 101 RM =.UT ION NETNOD �s PUnded
Total Cost of Irwftt=t 9 ....................... al,: ; ., 71i.54
Interest Earnings 8 —*r*L. ....................0
TOTAL DRAW 125,009,000.00
CAPITALIiID INTEREST PM 20LUTION METMW
Not FuArd
Original Road Proceeds .....................0.0....
2,OSi,004.N
Accrued Interest............. ..:..................
interest Earnings a 5.250L .......................
-
8t,2p9.bt
Tmufwa from DeM larvieo Raeerve Fund..........
16i,794.iZ
TOTAL DR,302,02*1.00
AYS
52
DEBT 2WIC9 USERVE FINn SOLUTION NETNDO
draw /unded
Total Cost of Irw atsense... :.....................
12566,07Z.50
Interest Assumes 8 6.SM........................
5:003,841.60
Trensfars to Capitalised Interest Fund............
(166,7".72)
Trwwfwa to Debt Service Furd....................
(4,437,046.88)
TOTAL DRAW
12566,072.50
BM STATISTiCB
Average Life ................. 0....................
21.16i YYosrys
8.4983339It
Average CW-4=*.*.............. ..*............. too
Not Intsryst Cost(MIC)...........................
8.4983R373
Rend Tiotid for�oArrbitrage Purposes .................
8.8SS60729
Ties interest Cast (TIC)* .............. ....*......
8.46838M
Alt lnatusivnt Cost (AiC)..........................
9.02S87608
P.O. a COW&W, Irrc. FIL9 a C:\OAO VM4AAKVNY3•psrkire MY9
Independent Firnncisl Advisers S/ 9/1996 12s" rM
ao
G. tHIN
0
Parking aarasa Facility
T&xW* pfi- Ing
am Space oaraps
MLICIIB SUIMIARY
MATURITY TYPf Of IMO
C01M
YIELD
10/01/19W SERIAL CO"
7.0001I
7.OM
10/01/2000 URIAL COL"
7.20021
7.2002
10/01/2o01 MRIAL Mt"
7.Q=
7."=
�URIAL.......
:.,�'•7.,.11�laJir..�'..•aiiiil
1010IM" WRIAL GWPOM
7.7301r
7.7302
10/ol/M SERIAL CoUPOtt
7.9002
7.90a
10/01/2006 SRRIAL COUPOI
a.0002
8.0002
10/01/SE07 g0IAL MUP
3.100
/.looac
10%01/20oii URIAL
0001dl A.2309<
8.2502
10/01/2010 RBRIAL
POIN 11 4.2302
8.25011
10/01/2011 SERIAL
4.3002
8.300% '
10/01/2012 SERIAL
Ott<IrOM 8.3502
a.340lS
111>grLcitfC
-
10/01/20u SERIAL
COUPON a 4302
a 101M
10/01/2015 SERIAL OMM 8.45Al1 a.4602
10/01/M6 SERIAL CQJDCI B.S002 8.3M
10/01/2019 SERIAL. =001 A.SOmi 3.5002
10/01/2020 SERIAL COUPOtI a.3003 8.500li
IWCI12021 SERIAL Ct1UPC11 8.5502 AMM
10/01/=4 URIAL
10/01/2025 11RIAL
10/01/2026 URIAL
10/01/20Z7 SERIAL
TOTAL
ISSUA= VALUE PAR
260,000.00 100.0002
280,000.00 lo0.0002
300,000.00 100.000
375,000.00 100.0=
400,000.00 100.00=
433,000.00 lo0.0o02
S45,000.00 100.00M
590,000.00 100.0on
"0,000.00 loo.0002
69S 000.00 100.0002
"=�'t0�"tom
41/5,000.00 1o0.0o02
8t5,000.00 100.0m
%O.000.00 loo.o001I
1.040.000.00 100.0002
1,225,o00.o0 100.0002
1,330.000.00 100.000%
1,"0,000.00 lo0.00mi
1,565,000.0Q_ 100.0o02
8.5502 $.SS02 1.845.000.00 100.0001I
8.55011 a.SSo2 2o00,000.00 100.00011
6.6002 S.6002 2:179 000.00 100.0002
a.6002 8.6002 a,3":000.00 100.0002
- - 27,385,000.00
215 568 "MS P. 03/6
MATIRITY VALUE
PRICE
DOLLAR RRICS
260.000.00
100.0M
260.000.00.
2a0,000.00
100.0m
2LL0,o00.00
300,000.00
100.00m
300,000.00
373,ON. 00 100.0o02 375,000.00-.
400,000.00 100.000 400,000.00
435,000.00 100.0002 435,000.00
4o,000100.. 10o, om- : 47C.000.00
$45,000.00
100.000s
us,00o.00
590,000.00
100.00M
590,000.00
"0,000.00
100.00=
640,000.00
lF�.d90iC'::
.000.00
-
'..'• � ::$51f<00�0a
815.000.00
100.0m
a15,000.00
8RS.000.00
ioo.0002
sm.000.00
%0,000.00
loo.o002
960.000.00
1.040 000.00
100.ows
1 040 000.00
1,225.000.00
100.0001i
1,225,000.00••
1,330,o00.00
100.000%
1,330,000.00
1,440,000.o0
lo0.o002
1,440,000.00
,50.000.00
100.0002
1,563.,000.00
I'M3,000.00
100.00M
1,acs,000.06
a 000,000.00
100.0m
2,000,000.00
2:175,000.00
100.0002
2,175,o00.o0
2.365,000.00
to0.0002
2,365,000.00
29,384,000.00
-
27,383,000.00
NO INFORMATION
Per AIRWint of$010 ............................... t27omoo00.00
Braes Pradtxtion 527,385.000.00
aid 27.315,000.00
Totat turclaso Price W0345,000.00
I" Yew Oolters................................. 5579,640.00
Awrap Lift .............. 4....................... 21.166 Teem
AVO So Casan...Y...,. .�.............................. 8.4.3�5 M
Not Intaroat Cost (110 -1 ........................ a.49835372
Trus Intorsat Coat (TIC) .......................... 8.46838=
P. n Cogw W Inc. FIEF• C:MWar,KW -Park nS m
1;;ep;;;1 Financial Advises S/ 9/19% 12:46 rN
96- 463 2�i
mpy- 9-19% 13, @1 ""'P. G. COiRB iN-
Parking Gape" Faei99ty
Taxab1s Flnwxlro
2500 SW* carp"
• WT OUT URVIC! 9CkEWU
215 SW W86 P. ",%
BATB
MIMCIPAL
COLPON
INTEKST
TOTAL V+i
OiI1
CIF MET MW 0/1
90/09/194A
_
2,302,025.00
2,302,025.00
(2,302,025.00) -
10/01/1999
260.000.00
7.000%
2,307,025.00
2.s62,025.44
066,794.72)
- 2,395,230.26
1010 am- •" �2�Q(000.00 »??�:2, M, d25 00 .. 2, 563, 825.00 . S I66. .
`� sue' �R.= � ;:'"ik�d'i;�bC00r==''.::;t� L 72) 2�397, 030.2a
•••••;::' •. :% ~$
10/01/2002
320,000.00 .
7.s00%
2,241.465.00
2.361.40.00
(1K�,7�94 ��
�--•.
�iba70:�
10/01/2003
345,000.00
7.650%
2,217,46S.00
2,562,465.00
(166,7%.72)
2,395,670.28
Q04 10/01/2
375,000.00
7.7M
2,191.0T2.50
2,566,072.sa
(1K,794.72)
2,399,27T.T6
10/.QiI2005 4w 000.00•
7.900%
2.16Z,010.00
2,56Z,010.00
(1i6,7"N.Tt�
- 2l3"4215.n
10/01/2007
470.000.00
8.100%
2,093,610.00
2,%5,610.00
(1K.794.72)
�, 2,3991,815,28
10/01/2008
595,000.00
8.200%
2,057,540.00
2,562.540.00
(166,7l4.721
- 2,305,r45.26
1041/2000,
10/01/2010•
50,000.00
59010.0440
8.250%
8.25M
2,016,130.00
• 1.971 167.50„•
2,561,130.00
2 S61•AR.50
(166,7%.72)
(1Ki74r,.72�
2,396,33S,28
2,394,3772
�10/01/2012
695.000.00 8.3502 M--1,&W,372.50 2,564,372.10.
(tii,T .72)
_-
=w .« .M_2 �
10/01/2013
/20 10/0114
750.000.00
815,000.00
&.Am
8.4M
1,811,360,00
1,74a,340.00
2,s61,340.00
2,s63,340.00
(iK,79+4.94.72) .
(166,7t2)
.78
2,304545.28
- 2,3%:US.28
10/01 15........ .885,000.00 .....8.440%w ,1,,679,472.50
;. :•3�its�,"�iik0.@�z:: �ib0�•b�'8.0�.•.�":�.Y.�490..=1�•"d6'
2.564,472.s0
1`6� - 2,397.677.75
,` r �~ � -..::: -.�.;; : ...
10/01/2017
1,040,000.00
8.5m
1323MAO
2,563.090.00
(1K,794.72)
��29'C
2,3%,295.20
10/01/2014
1,130.000.00
8-SM
1:434:690.00
2.564,690.00
(iK,794.7Zi
2,397,895.28
10/01/2019
1,223,000.00
8.s00i1
1,338,640.00
2,Sd3,640.00
(16b,794.72
•_ 1®l01/Z020 1,330 000.00 8.500% 1•,04,515.00 R's"'515.00 (16b,794.72)
- 2.397,720.28
*Wm
1,s63,000.00
$.SS0%
996,345.00
2,50,343.00
(166,7%.72)
2.3%,550.28
10/01/2023
11700,000.00
8.s50%
864.637.50
2,S64.537.50
(1K,7i4.72)
- 2,397,742.P8
10/01/am
1,845.000.00
8.5s0%
719,187.50
2.564,1d7.s0
(166,7%.72)
- 2,397.392.78
0%01 l000,000.0I eo"= 561,440.00 2,561,440.00 (166,7%.72) - w 2,394 645.28
^8.600% �=:�'�.-�:�r��� :�i+*•ram �."�..::..�.::�:.,�.�.;•:��9e:64s:z�.:.
to/o1/m27
a 365 000.00..
203,390 W
2,56a,390.00
(2,7l2,W.22)
(1",477.22)
TOTAL
27,385,000.00
-
49.239.867.50 •
76,6K,857.30
(7,40,119.30)
(2,302,025.00) K,939,713.12
compwW. Inc.
FILE ■ C: WUPARKWAT3•par n0 aA
IraWpwWmt Firmic aL Adviwo
5/ 9/149L 123" ►11
26
b6- 463
- P.G. tORBIN
215 SW 9796 P , 85,16
narlHtw oars" Faeility
Taxable firdmfrq
ZWO Spec+ oars"
OPERATIOM OF ! WJW C Ml UXTIOM FM
DATE
PRIMCI►AL
RATE IMTUACT RECSi►T$
ally Ism7s
CAN IALAMCE
10/01/1997
e
S.gi000Q0% - 0.06
0.0E
11/01/1997
1,742,409.97
5.2500000>d 42.590.03 1,835,000.00
I.M,000.00
0.06
RAW"?
1,749,950.95
s.2s000001t 05,049.05 19m ,000.00
1,83s,000.00
0.06
1/Q.j./.,1998
1jTS7,S24.55
S.2Sa00m 77,475.43 1,434,999.98
}.E55000.00
0.04
'f94IW�.«.t;�FiitaSOtlQriO ;1M9WAM S
-
3/01/1996
1,772,7T0.27
9.2500000% 62,229.73 i'm.000.00
1,M5,000.00
0.04
4/01/1498
1,780,"Z.64
5.250000a S4.Ss7.35 111u,999.99
1,835,000.00
0.03
S/01/199i
t,788.14A.23
S.2500000p 46,851.7T 1diS000 .00
I'S"'000.00
0.03
6/01/,1998
t 795,8871..15 S.• 00011 S9 112.34 1 999.9i1
1 000 00
0.0
NOt/1990
1,806,444.00
5.2S00000X 23'sSs.99 1,829 9"
1830,000.00
0.01
0/01/19n
1,$14,29.11-
S.2S000008 15,737.88 1,829,999.l9
1:830,000.00
-
10/01/19a
f.8?2,114.07
s.no0000lt r,86.9s 1,830,000.00
1,a30,000.00
.
TOTAL
21'393'744.46
- 606.253.46 22,000,000.00
22,000,000.00
IblitT U'r ►AluoeE7M ,
irnrsstaent Modal f", 01C• or Sea:rttiea)......... GIC
Default investment yield terw................... Uear Defined
Cash Deposit ...................................... 0.06
Cast Of Restrieted Inwataants............ 4....... 21,393,744.411
total Cost of Iiwostaants ......................... II+N.�,744.5L
taros% Gat of irmo n nts at bond yield.......... 20,998,331.66
Aetewl positive or (rnpstive) arbitre0s........... C393,412.88>
Yield to Resoipt.................................. '0.2147006
Yield for Arbitraps Purposes ...................... 8.835b072:
►.6. Corbin ICoapany. Ins. FIRE a C:1pAD[VWl'ARICVIAY3•psrkinl{ as
Ie:dsp�daetit Flros+cial Advisors S/ 0/1996 t2:46 ►N
27
96-- 463
Perrinr4 4are9e facility
TwAble financing
2500 " ®.rare
OPERATION OF CAPI1ALIIM IMIMEtt Fib
4AN
PRINCIPAL
UTZ
INUKIT *jLqjNwm
WMIPit OINUM M "
CAN RALANCE
0.03 -
0.03
it/i01n9lr
t4,M.53)
S.2S000OM
4,469.S3
-
0.03
lamiin?
(4,"LOD)
5.25000002
4.924.00 -
-
0.03
t 99t1
MUM=11{i11111208MRi#1il{f
�8,91bb.f6 5.250000M 4 %6.64 -
Ai9iit{iit:l tii l�Et1}I�i#€itiiiit ri�:}:itt}itti�t!ri#11i��1':l;i!%!1l?!!'3i;i4tN;ii3t}.lil3':tl#sc
MOO - 0.02
f}iFS t
3/01/1"d
(9.044.42)
S.2SOQM
9,044.42 -
- -
0.02
4/01n994'
1.0m,531.56
5.25000m
9,063.57 43,397.36
1,1S1.012.49 1,151,012.50
0.01
4/0111M
(4,50 X)
S.2S0000CX
4,502.3E -
- -
0.01
1n996
40ti1 1�11 11i1ifil+Ede'�i
t4 521.43 S.2S00000)I
iiil{i
4 521.43 • - - 0.01
1{liitii� ili{41E I{tell liiitltl�liltliitllli(liltifit4it}}Ititt=IIIIi iv.11H1.01 illitistIItIIOla{
4/01/1940
(4,561.06)
5.25000M
4,S61.06 -
- -
0.01
9/01/1994
(4,540.40)
5.2500M
4,S60.80
0.01
10/01/1M
1,063,014.51
S.2S0000ON
4.M.62 43.397.36
1.151.012.49 1.1S1.012.SO
-
TWAL
2,034,004.56
-
41.25.67. 1".M.T2
z,302,025.00 z.302,02S.00
-
INYHINI!NT PARNErtt
Inwst:eent Model • D..v, •YIC, or Samrltioal......... oIC
Wault Inarataent yfeLd tsrret................... User Oaf trod
Casio 0epalt...................................... 0.03
Cost of Raetrlcted inwstman a .................... 2,054,004.30
fetal cost of Inwotnents ......................... $2,034,004.61
lsrrot Coat of I:arostew I at bond yield.......... 2.001.347.02
Actual positive er InsRettvo/ erbitraw........... (52.457.59)
T1eld to Aeoefpt.................................. S.24999M
Yield for Arbftrere Purposes ...................... G.MOM ,
WO M111f01 OF INITIAL 0EMIT
Original eland PrDodds ............................ 2,054,004.61
Aanad Interest.
Call Contribution and Prior laws Tromfwa....... -
P.C. Fain a Caspany, inc. FILE ■ C:\IM \rAWAR!(VMT3-parking aey9
Independant Finamlel Aalvfsws S/ 9/1996 12M ON
Oct
DESMAN
A S 5 O C I A T E 5 LT.-':rS -oa;r ��:- __p-
NIay 15, 1996
Seaport Department MQY
Metropolitan Dade County"• ••, ,,,, ...L� f
1015 North American Way
tifiami, Florida 33131
Re: Maritime Project - Port of Miami
Gentlemen:
.J
As requested, I have prepared some preliminary financial scenarios :ter the proposed parking
garage in the noted project. It is our understanding of the proposed project that the new arena
will generally be situated northeast of the intersection of Biscayne Boulevard and NE Sixth Street'
and that the retail/entertainment center and garage will be located east and/or northeast of the
arena.
The parking garage for this project and the principal conditions for its use as used in these
financial scenarios are described below.
Additional assumptions are described in the explanation of the various exhibits.
• The parking garage is assumed to have a capacity of 3,100 spaces 600 spaces are always for use by
rdaillentertainment center customers. 77u other 2,500 spaces are available for retaii/entertainment center
customers when the arena is not in use.
• The garage is proposed to be constructed adjacent to a retail entertainment center of 250, 000 square feet
and a new 20,000 seat arena.
The. revenues projected for various scenarios are only for expected patrons of the retail/entertainment
cornpkx (Parking revenue from 2,500 spaces for arena events is assumed to go to the arena management
rather than the Port)
• A remote section of the Port of Miami would be used to park cars during arena events To serve the
patrons, a shuttle bus would be operated bejre, during and after the arena event:
The goal of the study is to provide an estimate of the revenue and expense which might be
generated from the garage from customers of the retail/entertainment center and an estimate of
the''revenue and expenses from the Port parking lot which is only used during arena events. To
accomplish this goal, two types of exhibits were developed.
300 WEST WASHINGTON STREET, SUITE 1010, CHICAGO, ILLINOIS 60606 312 / 263-3139 FAX 312 / 263-8406 �~
A DIVISION OF DESMAN, INC - NEW YORK - CHICAGO - WASHINGTON. D.C. - BOSTON - CLEVELAND - HARTFORD 4 6 _ 463
DESMAN
A S S O C I A T E S
Seaport Dept. May 15, 1996
Metropolitan Dade County Page Two
Exhibits 1-6
The format of these six exhibits is all the same. The variables between exhibits are the parking
demand ratio and the number of arena events per year as explained later in more detail.
Following is an explanation of the content of these exhibits and the assumptions made by this
consultant.
The top box contains a summary of the principal assumptions for this project.
Above and to the right of the top box are the specific values of key variables used in each of
Exhibits 1-6.
The second box states that the parking demand for retail/entertainment centers is typically in
the range of 4 to 12 spaces per 1,000 square feet of the area of a retail/entertainment complex.
The lower end of the range is typical when the use is principally retail and the higher end of the
range when the use is principally entertainment. The information provided to this consultant is
that the proposed use will principally be entertainment. Thus the probable parking demand
range is 8 to 12 parking spaces per 1,000 square feet with a range of 8 to 10 being the most
likely. Accordingly, values of 8, 10 and 12 were used -in this study.
Above the third box is the assumption as to the number of arena uses per year and the percent
of those uses which occur on weekends. Weekend use of the arena is assumed to be distributed
equally to Fridays, Saturdays and Sundays. All arena use is assumed to be during the evenings
in this study. ,The arena use is assumed to be either 100 or 150 times per year in this study.
Within the third box, are assumptions as to the use of the facility. These include the number
of customers during different days of the week and daytime vs evenings. The number of
customers are" represented by the Average Percent of Maximum Demand and the Average Turnover of
Occupied Spaces These customer use numbers are this consultant's judgement based on experience
and some references. The parking rates represent a nominal $2.00 charge during the day and
a flat $6.00 for evening parking. The rest of the numbers are the results of calculating the use
and revenue based on the maximum parking demand. These assumptions have been kept
constant for all the scenarios of this study.
r
30
95- 463
94
0
DESMAN
A s s o c 1 A 'r E s
Seaport Dept.
Metropolitan Dade County
May 15, 1996
Page Three
Between the third box and the fourth box is the estimated operating expense assumptions.
The estimated operating expenses of $400 per space per year is less than that frequently incurred
in most garages because in this case the Port will provide all of the security services. Arena
management will pay for operating expenses for their 2,500 spaces on days the arena is used.
Thus the net operating expenses shown are those pertaining to the revenue from customers of the
retail/entertainment center.
The fourth box is a summary of the revenue and expenses.
Below the fourth box are two notes which are self-explanatory.
Exhibits 7-8
These exhibits indicate probable revenue, operating expenses and net revenue for the remote
parking lot served by a shuttle bus system. It is assumed that this lot operates only on days the
arena is used. Revenue is based on a nominal S5.00 parking rate. Operating expenses include
parking attendants/supervisors and the shuttle bus. Expenses such as security, lighting, insurance,
etc., are carried by the Port as they already have this under-utilized parking lot in -place. It is also
assumed that arena patrons will find the remote lot with shuttle bus acceptable compared to other
unknown alternatives.
The variable between Exhibits 7 and 8 is the number of times per year that the arena is used.
Summary
Exhibits 1 through 6 indicate the probable net revenues for the proposed garage depending
the success of the retail/entertainment center and the' number of arena events.
It is this consultant's opinion that the proposed parking garage will capture nearly
patrons to the proposed retail/entertainment center. This option is based on sev,
including acceptable walking distances, particularly at night, and the lack of reasor
alternatives. Even if a development occurs west of Biscayne Boulevard, the waR
the parking in that development would likely preclude much use since an ade
parking is planned adjacent to the retail/entertainment center. Although it
proposed project will be connected via pedestrian bridge to Bayside, it is unf'
parking garage will siphon many customers away because Bayside curr
demands and use which are similar to the proposed development.
31
96-- 463
DES.LV1AN
A S S o C! A T E S
Seaport Dept. May 15, 1996
Metropolitan Dade County Page Four
The success of the remote parking lot on the port will depend on several factors including
signage, marketing, perception of security to the user, shuttle bus service, traffic conditions at
Biscayne Boulevard/NE Sixth Street and competing parking lots. It is this consultant's opinion
that because of the large number of cars that will need to be parked to serve arena customers,
the remote lot on the port can capture a reasonable proportion provided signage, marketing and
shuttle bus are all good. Anything that can be done to tie use of this facility to season ticket
holders, or other users, would be an advantage!
Please let me know if you have any questions or wish additional information. It has been a
pleasure to be of service to you.
Sincerely,
i
DESMAN ASSOCIATES
A Division of Desman, Inc.
Howard R. May, P.E.
Senior Vice President
HRM/ces
I
32
96- 463 J,�
Preliminary
Port of Miami — Arena Parking Study
For: Seaport Department, Metropolitan Dade County
Alternate a 100
Spaces/t000sf Times/Year
Garage Revenue and Operating Ex ense Study
Basic Assumptions
— 3100 Space Garage — Used only for non arena purposes for Port of Miami revenue
Nominally 2500 spaces allotted to Arena and 600 spaces allotted to retaii/entertainment center
— 250,000 square feet of retailleniertainment center adjacent to arena and parking garage
— 2000 Space Parking Lot — Used for Arena events only
— Revenue and operating expenses associated with arena use are excluded from these projections
Parking demand for retaillentertainment centers = 4 to 12 spaces / 1,000 sq ft
For this estimate. use a spaces/1.000 sq It
Thus maximum demand = 2000 spaces
Estimated Revenue for 3100 Space Arena Garage — Non Arena Use Only
Assume Arena used 100 times per year
50% ofuse on weekend evenings (F,Sa. Su)
15—M ay-9e
Times of Use
Frequency
of
Use per
Yew
Average
Percent of
Maximum
Demand
Average
Turnover
of occupied
Spaces
Number ofAverage
Customers
per Year
Customers
per Day
Rate
(Afar Tax)
Revenue
Weekday M—F 7:OOAM — 6:00 PM
250
25%
1.5
187,500
750
$1.86
' 9350,000
Weekday Evening — M—Th — After 6:00 pm •
150
20%
1.0
60,000
400
$5.81
$340.000
Weekend day — Sat — 7b0 AM-6:00 PM
52
40%
1.5
SZ400
1200
$1.86
$120.000
Weekend day — Sun — 7:00 AM-6:00 PM
52
40%
1.5
SZ400
1200
s1.ae
$120.000
Weekend Evening — Fri — Aftere:00 PM
35
90%
1.5
95,400
2700
$5.61
$540.000
Weekend Evening — Sat — After 8:00 PM
35
95%
1.5
100.700
2950
$5.61
$580.000
Weekend Evening — Sun — After6:00 PM
35
60%
1.2
50,880
14401
$5.61
$290,000
Evenings (AI¢— 5W spaces during Arena events
100
90%
1.0
54.000
540
$5.81
$300.000
Holiday day
41
50%
1.5
6,000
1500
$1.86
$10.000
Holiday evening
4
50%
12
4,500
12001
$5.81
$30.000
Total Revenue S2,660.000
• Uses per year reduced because of Arena use for 2500 spaces
Estimated Operating Expenses for Arena Garage (3100 Spaces)
Estimated Annual Operating Expenses $ 00 /space/yew $1.240.000 par year (Year round operation)
Amount of expenses attributed to Arena events (pro rate by days) 270,000 for 2500 of 3100 spaces
Not expenses for non arena use: $970,000 per year
Note:Seauity furnished by Port and excluded from estimated operating expenses
Irene Parking Garage — Summary of Non -Arena Revenue /Expenses
-'Estimated Annual Revenue 52,880,000
Estimated Annual Operating Expenses 970,000
Estimated Annual Net Revenue $1.000.000
Notes:
— Facililes of this type usually require 2 to 4 years to reach disk anticipated level d use.
Thus the early years may have less revenue than is shown.
— The non event parking use will depend an the type end success d tho establishmentsin
the netaillentertainrnent center. It the establishments are very suoeessful, the
poking revenue could increase.
96- 463
Exhibit
c7CG1
15-May-96
Alternate i0 100
Spaes/ 1000s1 Times/Year
Mara a Revenue and operating Expense Stu
Basic Assumptions
- 3100 Space Garage - Used only for non arena purposes for Pat d Miami revenue
Nominally 2500 spaces allotted to Arena and SW spaces allotted to retail/entertainment center
- 250,000 square feet d retaillentertainment center adjacent to arena and parking garage
- 2000 Space Parking Lot - Used for Arena events only
- Revenue and operating expenses associated with arena use are excluded from these projections.
Parking demand for retaiVentertainment centers = 4 to 12 spaces / 1,000 sq It
For this estimate, use 10 spaces/1,000 sq ft
Thus maximum demand - 2500 spaces
Estimated Revenue for 3100 Space Arena Garage - Non Arena Use Only
Assume Arena used
100 times per year
50% of use on weekend evenings (F,Sa, Su)
Imes of Use
Frequency
Average
Average
of
of
Use per
Year
Percent d
Maximum
Demand
Turnover
of occupied
Spaces
� • � xs
•war
Average
Customers
per Day
Rate
(After Tax)
Revenue
Weekday M-F7:OOAM - 8:00 PM
250
25%
1.5
234,375
937.5
$1.88
$440.000
Weekday Evening - M-Th - After e:00 pm •
1501
20%
1.0
75.000
500
$5.81
$420,000
Weekend day - Sat - 7:00 AM-6:00 PM
521
40%
1.5
76.000
1500
$1.86
$160.000
Weekend day - Sun - 7:00 AM-8:00 PM
521
40%
1.5
73,000
1500
51.86
$150,000
Weekend Evening - Fri - After 8:00 PM •
35
90%
1.5
119.250
3375
S5.61
$670.000
Weekend Evening - Sat - Auer 5:00 PM
35
95%
1.5
125,575
3562.5
$5.81
$710.000
Weekend Evening - Sun - Ater 6:00 PM •
35
60%1
1.21
$3,600
wowT
s5.6t
s36o,000
Evenings (AIQ- 600 spaces during Arena events
too
90%
1.01
54,000
540
$5.61
5300,000
Holiday day
4
50%
1.5
7,500
1375
$1.86
$10.000
Holidayevening 1
4
50%
1.21
6.0001
1500
. $5,611
$30,000
Total Revenue $3.240.000
Uses per year reduced because of Arena use for 2500 spaces
Estimated Operating Expenses for Arena Garage (3100 Spaces)
Estimated Annual Operating Expenses $400 /space/yew $1.240,000 per year (Year round operation)
Amount of expenses attributed to Arena events (pro rats by days) 270.000 for 2500 of 3100 spaces
Net expenses for non arena use $970,000 per year
Ncte:Sawrityfurnished byPcrtand excluded from estimated operating expenses
Arena Parking Garage - Summary of Non -Arena Revenue /Expenses
Estimated Annual Revenue $3,240,000
Estimated Annual Operating Expenses 970,000
Estimated Annual Not Revenue $2,270,000
Novas:
- Facilities of this type usually require 2 to 4 years to reach their anticipated level of use.
Thus the early years may have less revenue than is shown.
- The non event parking use will depend an the type and success tf the establishments in
ti1e retaiVenterWrstlent canter. If the establishments are very successful, the
perking revenue could increase.
34
9 6- 463 F�c}1iba2-
Preliminary
Port of Miami — Arena Parking Study
For: Seaport Department; Metropolitan Dade County
15—May-96
%aara a nevenue ano U eraun rx enSe oxua
Bask Assumptions
— 3100 Space Garage — Used antyfor non arena purposes for Part d Miami revenue
Nominally 2500 spaces allotted to Arena and SW spaces allotted to retail/entenainment center
— 250,000 square feed retaiVentertairvnent center adjacent to arena and parking garage
— 2000 Space Parking Lot — Used for Arena events only
— Revenue and operating expenses associated with arena use are excluded tram these projections.
Parking demand for retaiVerltartainment centers = 4 to 12 spaces / 1,000 sq It
For this estimate, use 12 spaces/1,000 sq It
Thus maximum demand = 3000 spaces
Estimated Revenue for 3100 Space Arena Garage — Non Arena Use Only
Assume Arena used 100 times per year
i
Alternate 12 100
Spaaesr1000sf Times/Year
50% of use on weekend evenings (F,Sa. Su)
Times of Use
Frequency
d
Use per
Year
Average
Percent d
Maximum
Demand
Average
Tumover
d occupied
Spaces
Number d
Customers
per Year
Average
Customers
per Day
Rate
(After Tax)
Revenue
Weekday M—F7:0oAM — 6:00 PM
250
25%
1.5
231,250
1125
si.ae
s52o,000
Weekday Evening — M —Th — After 8:00 pm "
150
20%
1.0
90,000
600
$5.61
$500.000
Weekend day — Sat — 7,00 AM-6:00 PIN
52
40%
1.5
93,600
1800
$1.86
1 $170.000
Weekend day - Sun — 7:00 AM-9:00 PM
52
40%
1.5
93.600
1800
$1.561
$170.000
Weekend Evening — Fri — Marti= PM
35
90%
1.5
143,100
4050
$5.61
1 $800.000
Weekend Evening — Set — After 6:00 PM •
35
95%
1.5
151,050.
4275
$5.61
Sa50,000
Weekend Evening — Sun — After 6:00 PM •
35
60%
1.2
7a,320
2160
$5.61
$430.000
Evenings (Alq— 6W spaces during Arena events
100
90%
1.0
54,000
540
$5.61
S300,000
Holiday day
4
50%
1.5
9,000
2250
$1.86
$20,000
Holiday evening
4
50%
12
7200
1800
$5.61
$40.000
Total Revenue $3.800,000
• Uses per year reduced because d Arena use for 2500 spaces
Estimated Operating Expenses for Arena Garage (3100 Spaces)
Estimated Annual Operating Expenses $400 /spaceNear $1.240.000 per year (Year round operation)
Amount d expenses attributed to Arena events (pro rata by days) 270,000 for 2500 d 3100 spaces
Net expenses for non arena use $070,000 per year
Note:Security fumrshed by Port and excluded from estimated operating expenses
Arana Parking Garage — Summary of Non —Arena Revenue /Expenses
Estimated Annual Revenue 53,800,000
Estimated Annual Operating Expenses 970,000
Estimated Annual Net Revetsue $2,6W.000
Notes:
— Fadliles d this type usually require 2 to 4 years to reach their anticipated level of use.
Thus the early years may have less revenue than is shown.
— The non event parking use will depend an the type and success d the establishments in
the roffiillentertainment center. M the establishments are very successful, the
parking revenue could increase.
96- 463
Ex35-3
31
Desman Associates
Port of Miami — Arena Parking Study
For: Seaport Department, Metropolitan Dade County
Preliminary
Garage Revenue and Operating Expense Stu
Basic Assumptions
— 3100 Space Garage — Used only for non arena purposes for Port of Miami revenue
Nominaity 2WO spaces allotted to Arena and OW spaces allotted to retail/entertainment center
— 250,000 square feet of retaiVentertairment center adjacent to arena and parking garage
— 2000 Space Parking Lot — Used for Arena events only
— Revenue and operating expenses associated with arena use are excluded from these projection
Parking demand for retail/entertainment centers = 4 to 12 spaces / 1,000 sq It
For this estimate, use 6 spaces/1,000 sq It
Thus maximum demand = 2000 spaces
Estimated Revenue for 3100 Space Arena Garage — Non Arena Use Only
Assume Arena used 150 times per year
Alternate a 150ar Spaces✓1000st TimwlYe
50% of use on weekend evenings (F,Sa. Su)
15—May-96
Weekday M
Weekday EN
Holiday even
Estimated Operating Expenses for Arena Garage (3100 Spaces) 540
Estimated Annual Operating Expenses 0 /space/yser $1.240,000 per year (Year round operation)
Amount of expenses attributed to Arena events (pro rota by days) 410,000 for 2500 of 3100 spaces
Net expenses for non arena use $830,000 per yearxp
NowSeaurltyfumished byPcrtwW axduded*om estimated operating eenses
Arena Parking Garage — Summary of Non —Arena Revenue /Expenses
Estimated Annual Revenue $Z.420.000
Estimated Annual Operating Expenses 630.000
Estimated Annual Net Revenue $11590.000
Notes:
— Facilities d this type usually require 2 to 4 years to reach their anticipated level of use.
Thus the early yeas may have less revenue than is shown.
typ — The non evert parking use will depend an the e and success d the establishments in
the retaillentertudrment center. k the establishments are very successful, the
parking revenue could increase.
36
96- 463
ExhibR 4
3a
96- 463
ExhibR 4
3a
Preliminary 15—May-96
a
Port of Miami — Arena Parking Study
For: Seaport Department. Metropolitan Dade County
k9ara a htevenue ands operating expense Stud
Basic Assumptions
— 3100 Space Garage — Used only for non arena purposes for Port d Miami revenue
Nominally 2500 spaces allotted to Arena and 600 spaces allotted to retalUs:tertainment center
— 250,000 square feet of rerail/entertainment center adjacent to arena and p. 'king garage
— 2000 Space Parking Lot — Used for Arena events only
Revenue and operating expenses associated vAlh arena use are excluded from these projections.
Parking demand for retailtentertainmert centers = 4 to 12 spaces / 1,000 sq ft
Forthis estimate, use 10 spaces/1.000 sq ft
Thus maximum demand = 2500 spaces
Estimated Revenue for 3100 Space Arena Garage — Nora Arena Use Only
Assume Arena used 150 times per year
Alternate 10 150
Spaces/ 1000sf Times/Year
50% of use on weekend evenings (F.Sa, Su)
Times d Use
Frequency
of
Use per
Year
Average
Percent of
Maximum
Demand
Average
Turnover
of ocwpied
Spaces
Number d
Customers
per Year
Average
Customers
per day
Rate
(After Tax)
Revenue
Weekday M—F7:o0AM-6:00PM
250
1 25%
1.5
234,375
937.51
$1.86
$440.000
Weekday Evening — M—Th — After 6:00 pm •
125
20%
1.0
62,500
Soo
$5.81
$360.000
Weekend day — Sat — 7:00 AM-6:00 PM
52
40%
1.5
78,000
1500
$1.86
$150,000
Weekend day — Sun — 7:00 AM-6:00 PM
52
40%
1.5
78,000
1500
$1.86
$150.000
Weekend Evening — Fri — After 6:00 PM •
27
90%
1.5
91.125
3375
$5.61
$510.000
Weekend Evening — Sat — After 6:00 PM
27
95%
1.5
96,188
3562.5
$5.61
$540.000
Weekend Evening — Sun — After 6:00 PM •
27
50%
12
4a,5o0
1500
$$.61
$270,000
Evenings (AII) — 600 spaces during Arena events
150
90%
1.0
$1,000
so
$5.61
$450.000
Holiday day
4
50%
1.5
7,500
1875
$1.86
$10.000
Holidayevening
4
50%
12
8,000
1500
$5.61
$30.000
Total Revenue $2.900.000
• Uses per year reduced because of Arena use for 2500 spaces
Estimated Operating Expenses for Arena Garage (3100 Spaces)
Estimated Annual Operating Expenses $400 /spacotyeer $1240,Wo per year (Year round operation)
Amount d expenses attributed to Arena events (pro rats by days) 410,000 for 2500 d 3100 spaces
Net expenses for non arena use $W0,000 per year
Nete:Searrity furnished by Port and excluded from estimated operating expenses
Arena Parking Garage — Summary of Non —Arena Revenue /Expenses
Estimated Annual Revenue $2,900,000
Estimated Annual Operating Expenses 830,000
Estimated Annual Net Revenue $2,070,000
Notes:
— Facilhles d this type usually require 2 to 4 years to reach thee' anticipated level d use.
Thus the early yaws may have less revenue than is shown.
- The non event parking use wiU depend on the type and success d the establishments in
the retaillentertairment center. M the establishments are very successful, the
parking revenue could increase.
96- 463
Exhibit 5
37
33
Preliminary
n
Port of Miami - Arena Parking Study
For: Seaport Department. Metropolit n Dade County
uara a tievenue and operating Expense Stu
Basic Assumptions
3100 Space Garage — Used only far non arena purposes for Part of Miamirevenue
Nominally 2500 spaces allotted to Arena and 600 spaces allotted to retaiVentertainment center
- 250,000 square feet of retaiVentermin ment canter adjacent to arena and parking garage
— 2000 Space Parking Lot — Used for Arena events only
Revenue and operating expenses associated with arena use are excluded from these projections.
Parking demand for retaillentertainmert centers = 4 to 12 spaces 11.000 sq ft
Forth is estimate, use 12 spaces/1,000 sq ft
Thus maximum demand = 3000 spaces
Estimated Revenue for 3100 Space Arena Garage — Non Mena Use Only
Assume Arena used 150 times per year
Alternate 12 150
Spaces11000s1 Timearyw
50% of use a1 weekend evenings (F.Sa. Su)
t 5-May-96
Times d Use
Frequency
of
Use per
Year
Average
Percent of
Maximum
Demand
Average
Turnover
of occupied
Spaces
Number of
Customers
per Year
Average
Customers
per Day
Rate
(After Tax)
Revenue
Weekday M —F 7:00AM — 6:00 PM
250
25%
1.5
261,250
1125
31.86
$520,000
Weekday Evening — M—Th — After e:00 pm •
125
20%
1.0
75,000
600
S5.61
$420,000
Weekend day - Sat — 7,00 AM-6:00 PM
52
40%
1.5
93,600
1800
S1.86
$170,000
Weekend day — Sun — 7:00 AM-6:00 PM
52
40%
1.5
93,600
1600
$1.86
$170.000
Weekend Evening - Fri — After 6:00 PM "
27
90%
1.5
109,350
4050
$5.81
$610.000
Weekend Evening — Sat — After 6:00 PM •
27
95%
1.5
115,425.
4275
S5.61
$650.000
Weekend Evening — Sun — After 6:00 PM '
27
60%
12
58.320
2180
$5.81
$330,000
Evenings (AIQ- 600 spaces during Arena events
150
90%
1.0
81,000
540
$5.61
$450.000
Holiday day
4
50%
1.5
9.000
2250
$1.88
$20,000
Holiday evening 1
41
50%
12
7,200
1800
$5.61
$40.000
Total Revenue S3,3ao,000
• Uses per year reduced because of Arena use f or 2500 spaces
Estimated Operating Expenses for Arena Garage (3100 Spaces)
Estimated Annual Operating Expenses $400 /spaex/yser S1,240,000 per year (Year round operation)
Amount of expenses attributed to Arena events (aro rats by days) 410,000 for 2500 of 3100 spaces
Net expenses for non arena use $830,000 per year
Note:Security furnished by Port and excluded from estimated operating expenses
Arena Parking Garage Summary of Non —Mena Revenue /Expenses
Estimated Annual Revenue S3,3a01000
Estimated Annual Operating Expenses 830,000
Estimated Annual Net Revenue S2.550,000
Notes:
- Facil f*s of this" usually require 2 to 4 years to reach that anticpeted ievel d use.
Thus the early years may have less revenue than is shown.
The non evert parking use will depend on ft type and success d the estabiishmwits in
the retaiVentertainment center. I the establishments are very successful. the
parking revenue could increase.
38
C�
Exhibit 6
96- 463 3q
96- 463
IS—May-9C
Exit 39
3SJ
Desman Associates Preliminary
Port of Miami — Arena Parking Study
For: Seaport Department, Metropolitan Dade County
2000 Space Parking Lot
Assume Arena used 150 times per year
Assume occupancy at 90%
Assume Capacity at 2000 spaces
Parking Rate $4.6a per entry (after tax)
Perking Lot Operating Expenses $260 per day used
Shuttle Bus Operating Cost $1,0oo per day used
Probable Annual Revenue $1.262.250
Probable Annual Operating Expenses 189.000
Probable Annual Net Inoome $1.073.250
Notes:
Operating expenses only for staff on the days of use.
All other expenses (security, utilities, insranoa, etc.) are pat of Pon expenses.
i
r .}
15—May —A6 .
96- 463
Development Agreement
Parties:
Metropolitan Dade County and Basketball Properties, Ltd. (the'Arena
Manager'- a Florida limited partnership)
Purpose:
to provide for the design and construction of the Arena and the Parking
Garage by the Arena Manager on behalf of the County, and for the optional
development of the Maritime Park Complex retail element; Arena Manager
has 2 years to negotiate a development agreement acceptable to the County
Term:
3 0-3 5 years (tied to the length of the bonds); two successive options of up to
5 years each
Arena
$165 million construction fund (excludes following County costs: County's
Budget:
share of environmental testing and mitigation as agreed to in Maritime Park
Interlocal Agreement; extra -ordinary sub -soil remedial action; Downtown
DRI approval; and County's share of traffic mitigation)
Arena Specs:
state of the art facility; 750,000-850,000 square feet of space; 19,000-21,500
seating to NBA standards; 10,000-19,500 seating to International or
Canadian Hockey Leagues standards (Arena Manager required to retrofit to
accommodate an available NHL franchise at no cost to the County); 20,000-
21,500 seats for concerts; up to 37,500 square feet of furnished, equipped
office space
Parking
a $30 million, 3400 space parking garage will be constructed adjacent to the
Budget:
arena; a $22 million bond issue will be used to fund 2500 spaces; the 900
additional spaces (estimated cost $8 million) will be constructed and funded
for retail and port use
Parking
2,500 spaces will be made available for the Arena Manager on event days
Allocation:
(200 at all times); 900 additional spaces will be for retail and port use
Maritime
destination retail/entertainment complex of up to 300,000 square feet of
Park
commercial space on the Maritime Park site to be fully integrated with the
Complex:
arena and port expansion; Basketball Properties, Ltd. will have a 24 month
period from time of execution of the contract to negotiate a development
agreement acceptable to the County
Maritime
will consist of 5 members: 1 appointed by the Team; 2 appointed by the
Park
Arena Manager, 2 appointed by the County; will be responsible for the
Architectural
review and evahiation of responses to the Architectural RFP and
Board:
Construction RFP
County
will have the right review, approve, and consent to design documents, plans
Represen-
and applications, and project schedules and funding requests; most approval.
tative:
rights are limited; disputes are resolved through mediation or, ultimately, the
Heat Project Manager
96- 463
41
31-
Development Agreement
Project
Arena Manager will prepare an Architectural RFP to be approved by the
Architect
County Representative; the selection of the Project Architect will be made by
Selection:
the Maritime Park Architectural Board and forwarded to the BCC or its
designee for approval; or, if appropriate waivers are obtained from the BCC,
the Maritime Park Architectural Board shall select the Project Architect from
a County list of certified architects
General
Arena Manager will prepare a Construction RFP to be approved by the
Contractor
County Representative; the RFP will require a 100% performance bond in the
Selection:
full amount of the guaranteed maximum price contract; the selection of the
Contractor will be made by the Maritime Park Architectural Board and
forwarded to the BCC or its designee for approval
Construction
arena construction cost over -runs beyond the County contribution will be
Cost Over-
born by the developer
Runs:
Construction
construction cost savings under the $165 million will be split 501/o to the
Savings:
County and 50% to Basketball Properties, Ltd.
Heat at Fault
No Fault
County at Fault
Construction Delay
Fealty:
$0
$3 million
$6 million
f
42
:
96- 463 3g
Category
% of Item to Base Bid
13BE
10%
HBE
10%
WBE
100/0
TOTAL
30%
Construction of the Maritime Park Arena and Parking Garage
Goal Recommendations
Cat o
% of Item to Base Bid
WBE
9%
HBE
.13%
BBE
. 12%
TOTAL
34%
43
96- 46339
Management Agreement
Parties:
Metropolitan Dade County and Basketball Properties, Ltd. (the'Arena
Manager' - a Florida limited partnership)
Purpose:
To provide for the management and operation of the Arena by the Arena
Manager on behalf of the County
Term:
3 0-3 5 years (tied to the length of the bonds); two successive options of up to
5 years each (upon terms to be negotiated and approved by the County)
Revenues:
all revenue generated by arena operations and the 2500 parking spaces
reserved during arena events will be retained by the Arena Manager
Operating
all operating, maintenance, and insurance expenses will be paid by the Arena
Expenses:
Manager and guaranteed by the Team
Guaranteed
$837,000 annual payment by the Arena Manager (gL*�.. ariteed by the Team)
Debt Service
to the County to service bond debt; payments are "ab9blute and unconditional
Payments:
and made without offset"
Team
Team guarantees all Arena Manager operating expenses, reserve accounts,
Guarantee:
and Guaranteed Debt Payment
County and
Permitted unlimited number of 'community events' if booked 45 days or. less
City Use
in advance and no scheduling conflicts; 4 events can be booked a year in
advance for use between July 1 and September 30
Assignment of
Arena Manager can not assign its rights under this contract without consent
Agreement:
of the County, except in connection with NBA approved sale of the Team
Parking.
2500 parking garage spaces will be made available for Arena Manager use
Garage and
during arena events; all revenues from these spaces during arena events,
Parking
minus operating expenses, will be arena revenues; all advertising money
Revenues:
connected to the garage will be arena revenues; non-event day revenue will
be pledged to pay for garage debt, and arena event parking revenues will be
used as a secondary pledge; 2000 surface parking spaces will be available for
arena events, the revenues of which will accrue to the County, these revenues
will be pledged to support garage debt
Naming
BCC will be asked to delegate the naming rights following a public hearing to
Rights:
the Arena Manager, Arena Manager will then have the right to sell or grant
naming rights to any Fortune 1000 company, excluding those that do
business with Cuba or sell tobacco or alcoholic beverages
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Management Agreement
Security: security for the parking garage and other port and non -port facilities will be
governed by the Interlocal and Lease Agreement with the City of Miami;
security inside of the building will be paid for by the Manager
Suites and County will have rights to one suite and accompanying tickets free -of -charge;
Signs: County will have rights to one sign in the arena
Assurance Agreement
Parties: Metropolitan Dade County, City of Miami, Miami Heat Limited Partnership,
and Basketball Properties, Ltd.
Purpose: to provide directly to the County and the City various direct covenants of the
Team and the Arena Manager; and directly to the Team and the Arena
Manager various direct covenants of the Governmental Entities
Provisions: terms and provisions contained within this document are generally identical to
the various provisions found within the Development Agreement, the
Management Agreement, and the License Agreement
License Agreement
Parties:
Metropolitans Dade County and Basketball Properties, Ltd. (the'Arena
Manager' - a Florida limited partnership)
Purpose-.-
Team agrees to play its home games for a period of 30 years in the Maritime
Park Arena; this right is non-exclusive
Term:
30-35 years (tied to the length of the bonds); two successive options of up to
5 years each
Assignment
County assigns its rights under the License Agreement to the Arena Manager
by County:
45
96- 463
MARITIME PARK ARENA
ASSURANCE AGREEMENT
dated as of , 1996
among
METROPOLITAN DADE COUNTY,
CITY OF MIAMI,
EAMI HEAT LIMITED PARTNERSHIP,
and
BASKETBALL PROPERTIES, LTD.
96- 463
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v
CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM 1A
TO: DATE : FILE :
Honorable Vice Mayor & Members
of the City Commission
FROM
Ces i
City er
RECOMMENDATION
June 20, 1996
SUBJECT:
Arena Financing Plan and
Arena Related Contract -
REFERENCES : ASsurance Agreement
ENCLOSURES:
It is recommended that the City Commission approve the attached resolution authorizing
the City Manager to execute, in substantially the attached form, the Assurance Agreement
among Metropolitan Dade County, City of Miami, Miami Heat Limited Partnership, and
B k ba11 P d " "
as et roperties, Lt . (the Arena Manager ), for the development and operation of
a professional sports franchise arena and parking garage on the FEC portion of the
Maritime Park Project; and authorizing the Arena Manager to grant the naming rights for
the arena to a Fortune 1000 company, excluding tobacco or alcoholic beverage companies
or those that do business with Cuba.
BACKGROUND
On March 29, 1996, the City Commission approved a proposed financing plan for a new
professional sports facility and directed continued negotiations to develop agreements
with the Miami Heat for the development and operation of a new arena on the FEC
portion of Maritime Park Property. Since that time, the City has worked with the County,
Mr. P. Anthony Ridder, representatives of the International Facilities Group consultants,
and the -Miami Heat to develop the attached financing plan and the related arena
contracts.
Unlike the financing plan presented on March 29, 1996, the City of Miami will no longer
be required to issue any taxable bonds to finance the construction of the Arena. A
summary of the revised financing plan is attached, in essence, providing for a cash
contribution of $41 million from the Miami Heat and a County tax exempt bond issue of
approximately $131 million. The City will deposit $9 million into a Capital Reserve
Fund, these monies to be derived from advance rental payments in connection with the
Maritime Park Project. The Capital Reserve Fund will be used to protect any shortfalls to
meet debt service requirements.
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96- 463
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2
In addition to the. Assurance Agreement, the Miami Heat and the Arena Manager are
simultaneously executing a Development Agreement, Miami Heat License Agreement,
Management Agreement, and a Management Agreement Guaranty, (collectively referred
to as the "Related Agreements") with Metropolitan Dade County, to provide for the
development, management and operation of a new professional sports franchise facility.
(A summary of each of these agreements is attached.) In connection with these
agreements, the City has been asked to enter into an Assurance Agreement which is
designed to provide the City and the County with various direct covenants of the Team
and the Arena Manager, and to provide the Team and the Arena Manager with various
direct covenants of the City and the County.
The salient terms of the Related Agreements are as follow:
• The Agreement term is 30 years or the first June 30 following the scheduled final
maturity date of the bond indebtedness. The Arena Manager will have two successive
options to extend the term of the Agreement upon terms to be mutually agreed upon.
• The City shall be responsible for providing all security inside and outside of the
Arena. The County or other operator shall be responsible for the security in the
Parking Garage.
• The Development Agreement provides for the construction a $30 million, 3400 space
parking garage to be constructed adjacent to the arena and paid for by parking
revenues. (900 parking spaces will be for retail and port use)
• The Development Agreement gives the Team two years to exercise an option to be
the master developer for the retail and specialty attractions portion of the Non -Port
Facilities of the Maritime Park Project.
• The Team through its affiliated corporation, Basketball Properties, Ltd., will provide
the management services to the arena. These services are provided though the
management agreement.
• The Management Agreement reserves to the County the right to disapprove any name
for the Arena the County Board reasonably deems in bad taste or offensive to the
County's image. The Agreement provides that the name of any Fortune 1000
company. (with the exception of any company that does business with Cuba and any
tobacco or alcoholic beverage company) shall be deemed a County -approved name.
• There are no provisions for revenue sharing above the Team's initial contribution and
the guaranteed debt service payment. To allow for revenue sharing, the bond issue
for the arena would have had to have been taxable, and therefore would have had a
higher interest rate. The Convention Development Tax debt service savings resulting
from a tax exempt bond are greater than the estimates of the revenue the Heat was
willing to share with the County.
• The City will deposit up to $9,000,000 (to be derived from the rental payments of the
Maritime Park Project) into a reserve account established by the County for the Arena
Bonds.
96- 463
CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM
TO : Honorable Vice -Mayor and Members DATE : June 26, 1996 FILE
of the City Commission
SUB.IECT
June 27th Agenda
FROM Cesar H. Odlo REFERENCES: Items 1 and 1A
City Manager
ENCLOSURES:
On June 20th, 1996, Commissioner Carollo and I met with representatives of, Dade
County and the Miami Heat to clarify certain issues presented in Item 1 and IA of the
June 27th, 1996, agenda package.
Item 1- Interlocal and Lease Agreement
Section 23.7 of Exhibit A (page 93) and Section 22.7 of Exhibit B (page 99) will be
amended to clarify that in no event will the City be liable for any ad valorem taxes
lawfully assessed on the Leased Property.
Item 1A - Assurance Agreement
• Section 5.2.2 will be amended to clarify that any necessary mitigation will be shared
"50-50" between the County and the City and that their obligations are not
"respective".
e Section 11.1 should also be amended to clarify that:
"The costs of developing the Traffic Mitigation Plan and
the Site Security Plan shall be allocated "50-50" between
the County and in the City in accordance with the
lnter4eee4 Agreement of as etheFYA4se agreed betwee-a.
them..."
r
In addition it was agreed between the Miami Heat and the City that police staffing outside
the Arena will be changed to a total of 30 City of Miami police officers for Heat Home
Games only, and the costs thereof will be paid by the Arena Manager and the City would
reimburse the Arena Manager for one-half of the cost of such officers.
As to Non -Heat events at the Arena, the Arena Manager would pay the full cost of such
police officers. 9 S— 463
F}i�Ll i. .. ill+lS •...•� �., .... n .. �,ir.
item
City clerks
Vice Mayor and Members of the City Commission
June 26, 1996
Page 2
• Section 14.1.1 and 14.1.2 of the Assurance Agreement will be amended so that the
obligations of the City under each such Section will be predicated on both the Arena
Manager and the Team not being in default.