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HomeMy WebLinkAboutR-92-0019�1 =1 j - a-91-964 1/2/92 ((jj % 1.9 RESOLUTION NO. A RESOLUTION, WITH ATTACHMENT($), ESTABLISHING CHARGES, TERMS AND CONDITIONS FOR THE USE OF THE ORANGE BOWL STADIUM BY THE PROFESSIONAL SPRING FOOTBALL LEAGUE FOR SEASON HOME FOOTBALL GAMES FOR A FIVE YEAR PERIOD, WITH THE OPTION ON THE PART OF THE PROFESSIONAL SPRING FOOTBALL LEAGUE TO EXTEND SAID TERM FOR TWO ADDITIONAL FIVE-YEAR PERIODS; FURTHER AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, BETWEEN THE CITY OF MIAMI AND THE PROFESSIONAL SPRING FOOTBALL LEAGUE FOR SAID PURPOSE; AND SUBJECT TO THE ORGANIZERS OBTAINING INSURANCE TO PROTECT THE CITY IN THE AMOUNT AS PRESCRIBED BY THE CITY MANAGER OR HIS DESIGNEE. WHEREAS, the City of Miami and the Professional Spring Football League wishes to establish a successful long-term j relationship through the presentation of the Professional Spring Football League's season home football games at the Orange Bowl Stadium; and WHEREAS, representatives of the City and the Professional Spring Football League have diligently worked to negotiate a long-term agreement for the use of the stadium; and WHEREAS, said agreement provides for a five-year period of use, with the option to extend the period for two (2) additional five-year periods on the part of the Professional Spring Football `rd League; and ATTYACENS4VENT U�� 2 .. ...; � ,., e. u. •�;lf�n .,�,..x ..q::= :.wru .SY. vsi, d.F..z: F .._.M� : .. ..�;.: a.- ..,t CITY COMMUSSION OF ., . w.: JAN 9 199Z 92-- 19 WHEREAS► the agreement also provides for a per game, per year use fee on a sliding scale basis as follows: during 1992 - $8,500 for regular games, $12,500 for playoff games, $20,000 for championship games; during 1993 - $11,500 for regular games, $12,500 for playoff games, $20,000 for championship games; during 1994 - $15,000 for regular games, $17,500 for playoff games, $20,000 for championship games; during 1995 - $15,000 for regular games, $17,500 for playoff games, $20,000 for championship games; during 1996 - $20,000 for regular games, $25,000 for playoff games, $30,000 for championship games; during 1997 - $20,000 for regular games, $25,000 for playoff games, $30,000 for championship games; and beginning with the 1998 football season and thereafter - $25,000 or 10% of gross ticket sales per game played, whichever is higher. WHEREAS, it is recommended that the Professional Spring Football League shall also collect, on behalf of the City, a $1 ticket suroharge on admission to said games and the City shall use such revenue for improvements to the stadium; and WHEREAS, said organization will cover all event employee expenses, including police, for each game; and WHEREAS, the attached agreement contains additional provisions pertaining to the duties and obligations of each party for the production of said football games, including, without limitation, staffing, utilities, record -keeping and liability insurance; and WHEREAS, the modified charges, terms and conditions of the use will not have adverse affect on the revenues of said facility 9 -- 19 but will assist in securing significant additional revenues to the City in the form of added stadium use fees, surcharge, parking and concession revenue for the continued operation, maintenance and improvement of this City facility; and WHEREAS, the City Manager recommends that the Commission approve the charges, terms and conditions set forth in the attachment to this Resolution and further that the execution of the necessary agreement be authorized; and WHEREAS, Section 53-131(C)(7) of the Code of the City of Miami, Florida, as amended, provides that the City Commission has the right to establish and fix special charges or special terms and conditions for the use of said stadium; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals 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 charges, terms and conditions as set forth in the attached agreement for the use of the Orange Bowl Stadium by the Professional Spring Football League are hereby established for said Professional Spring Football League's presentation of season home football games for a five (5) year period, with the option on the part of the Professional Spring Football League, to extend said term for two (2) additional five- year periods. 3 ; ,`1, ,_ 19 Seotion 3. The City Manager is hereby authorized to execute a use agreementin substantially the attaohed form, between the City of Miami and the Professional Spring Football League for said football games as set forth in the herein agreement. Seotion 4. The herein authorization is hereby conditioned upon the organizers obtaining insurance to protect the City in the amount as prescribed by the City Manager or his designee. Seotion 5. This Resolution shall become effeotive immediately upon its adoption. ��33 PASSED AND ADOPTED this 9th day of ,�""nu�1992. ATT T 100 MATrffY H4IRAI, CITY CLERK PREPARED AND APPROVED BY: CARMEN L. LEON ASSISTANT CITY ATTORNEY APPROVED AS TO FORM AND CORRECTNESS: CITY AT EY CLL:gb.M2737 XAVIER Ir.' ,SUAREZ", MAYOR The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to those prescribed by applicable City Charter and Code provisions. - 4 - ;►2- 19 USE AGREEMENT BETWEEN THE CITY OF MIAMI AND PROFESSIONAL SPRING FOOTBALL LEAGUE, INC. .a-0 THIS AGREEMENT, made and entered into this day of elt -*-1 �j 199/p'between THE CITY OF MIAMI , a municipal corporation organized and existing under the laws of the State of Florida (the "CITY") and the PROFESSIONAL SPRING FOOTBALL LEAGUE, 1 Meadowlands Plaza,, East Rutherford, New Jersey, 07073 (the "PSFL" ) . WHEREAS, the PSFL has the right to organize, own, and franchise a professional football team in the City of Miami; and WHEREAS, the PSFL desires to use the Miami ORANGE BOWL Stadium (the "ORANGE BOWL"), 1501 N.W 3rd Street, Miami, Florida, for the purpose of scheduling professional football games between PSFL teams in order to present professional football to the people of Miami, Dade County, and the surrounding area; and WHEREAS, the Commission of the CITY has deemed it in'the best interest of the electorate to authorize this Agreement in order to provide the viewing public of this area the opportunity of witnessing regularly scheduled games of the PSFL; and WHEREAS, the CITY shall be the hometown of a PSFL team and all games scheduled to be played by the PSFL in Miami shall be played in the ORANGE BOWL; and WHEREAS, the opportunity of viewing regularly scheduled professional football games between PSFL teams will provide an additional attraction to the tourists visiting the area, as well as the citizens of the CITY, Dade County, and all of Florida, in addition to providing continual publicity by the televising and broadcasting of the games by national television and radio stations; and WHEREAS, due to the commitments made in this Agreement by , the CITY it would not be economically feasible for the CITY to enter into this Agreement unless certain guarantees are granted to the CITY, and the terms and conditions as provided herein are fully and completely accepted by the PSFL. NOW, THEREFORE, the parties hereto represent, covenant and agree as follows s %jjL V HtiU►taiNU fuK FURTI".R HEv , PLEASk IDENTIFY AS 0 0 5 The PSFL desires the right to organize, own, and operate a professional football team in the City of Miami, Dade County, Florida, and the CITY, during the term of this Agreement, shall be the hometown of such professional football team and all regularly scheduled home games shall be played in the ORANGE BOWL. UNNEWWWW9 (a) Subject to the agreed consideration and the priority events and other provisions specified in paragraph 8 hereof, PSFL shall have the right to schedule PSFL professional football games, including but not limited to, Preseason and Regular football season PSFL games, during each of the regular football seasons (as hereinafter defined). PSFL shall have the right to occupy and use the ORANGE BOWL only during the days when such games are scheduled and played. (b) The "Regular football season" of the PSFL shall be deemed by the parties to this Agreement to commence with the first regularly scheduled games of the League, either Preseason or otherwise, and shall terminate with the last play-off or championship football game to be played in the ORANGE BOWL by the PSFL. The games to be played in the ORANGE BOWL, as provided in this Agreement and subject to the priority events and other provisions specified in paragraph 8 hereof, shall be scheduled to be played within each regular football season during the years hereinafter set forth in Section 2 (d). (c) The term "Regular football season" as used in this Agreement shall be construed to permit PSFL to use the ORANGE BOWL only during the dates and times when football games -are actually to be played. Nothing herein is to be construed as vesting in the PSFL the exclusive control and dominion of the ORANGE BOWL but only vesting use during days when regularly scheduled games are played as provided in this Agreement. (d) PSFL agrees all regularly scheduled home games of the PSFL Miami franchise shall be played in the ORANGE BOWL during the regular football seasons for a period of five years .J - 2 - 92" f9 c F beginning with the 1992 season. The PSFL shall have the option of renewing this Agreement on the same terms for two (2) five (5) year periods, for the purpose of playing all regularly scheduled home games at the ORANGE BOWL. (e) Subject to the provisions of this Agreement, including paragraph S hereof, and in addition to those days when the ORANGE BOWL is used by the PSFL for the playing of football games herein provided, the ORANGE BOWL shall be made available to the visiting team for the purpose of a workout on the ORANGE BOWL field the day prior to all regularly scheduled football games of the PSFL providing such workout does not conflict with any other scheduled event on the day or the evening of such workout in the ORANGE BOWL, and 'further provided that the scheduling of the workout shall not damage the field for any event scheduled on the day or evening of such workout or for the subsequent day's game. 3. FEES AND CHARGES FOR USE (d) PSFL agrees to pay the cost of collection and reasonable attorney's fees on any part of the use fee and event expenses due under this Agreement that may be collected by suit or attorney after the same are past due and PSFL has been notified in writing and has had the opportunity to correct any alleged default in accordance with paragraph 30 herein. During the entire period covered by this Agreement and including any extension or renewal thereof, PSFI, shall furnish to the CITY not later than Ninety (90) days prior to the beginning of the regular football of each of the years provided in this Agreement, or as soon thereafter as the actual PSFL schedule is received from the Commissioner of the PSFL, the dates IJ of the PSFL's scheduled football games for such season. 'Not later than the final regular season game or as soon thereafter as such dates are known to the PSFL, the PSFL shall furnish to CITY the dates of any Playoff, Championship, or All -Star games to be played in the ORANGE BOWL, which dates shall not conflict with the dates of the priority events or other provisions set out in 9 2 - 19 3 4r n paragraph 8 hereof. However, in order to meet broadcasting schedules or other reasonably unexpected circumstances, the PSFL may reschedule a particular game to another day.or at a different time of the same day as originally scheduled upon at least 72 hours notice to the CITY, and as long as such rescheduling does not conflict or interfere with other scheduled events. 4. USE FEES AND TICKET SURCHARGE: The parties understand that the City and the Florida Department of Revenue are currently contesting the issue of whether sales tax on lease payments for use of the Orange Bowl must be paid. PSFL agrees to pay 6.5% sales tax on the lease payments to the City and the City agrees to keep the sales tax payments in an interest -bearing escrow account. In the event it is determined that sales tax must be paid, the City will transfer the sales tax payments to the State. In the event a final Judicial or adminstrative determination is made that no sales tax is due, the City will return the sales tax payments along with accrued interest to PSFL. PSFL shall pay the CITY for the use of said ORANGE BOWL Stadium for each game, a flat use fee (hereinafter "Use Fee") of Eight Thousand Five Hundred Dollars ($8r500.00)t plus 6.5% State of Florida Use Tax and employee expenses for the 1992 football season. Eleven Thousand Five Hundred Dollars ($11,500.00), plus 6.5% State of Florida Use Tax and event employee expenses for the 1993 football season. Also, a Twelve Thousand Five Hundred Dollars ($12,500.00) Use Fee, plus 6.5% State of Florida Use Tax and event employee expenses for the 1992 and 1993 football season playoff games with a Twenty Thousand Dollars ($20,000.00) Use Fee, plus 6.5% State of Florida Use Tax and event employee expenses for the Championship Games held in 1992 and 1993. Fifteen Thousand Dollars ($15,000.00), plus 6.5% State of Florida Use Tax and event employee expenses for the 1994 and 1995 football season with a Use Fee of Seventeen Thousand Five Hundred Dollars ($17,500.00), plus 6.5% State of Florida Use Tax and event employee expenses for the 1994 and 1995 football season playoff games with a Twenty Thousand Dollars ($20,00.00) Use Fee, plus 6.5% State of Florida Use Tax and event 9 2 - 19 -4- 1+ d employee expenses for the Championship games held in the 1994 and 1995 football season. Twenty Thousand Dollars ($20,000.00), plus 6.5% State of Florida Use Tax and event employee expenses for the 1996 and 1997 football season with a Use Fee of Twenty Five Thousand Dollars ($25,000.00), plus 6.5% State of Florida Use Tax and event employee expenses for the 1996 and 1997 playoff games with a Use Fee of $30,000 for the Championship games, plus 6.5% State of Florida Use Tax and event employee expenses. Commencing with the 1998 football season and thereafter during the term of the first (1) five (5) year option and the second (2) five (5) year option, the PSFL should pay per game a Use Fee of Twenty Five Thousand Dollars ($25,000.00), or 10% of gross ticket sales, less State of Florida sales tax, whichever is greater and the event employee expenses. In addition to the above mentioned Use Fee, the PSFL agrees to collect a Ticket Surcharge in the amount of one dollar ($1.00), to be applied against each paid ticket for admission to all PSFL home games held in the ORANGE BOWL Stadium. It is expressly agreed that the amount of the Ticket Surcharge applicable to paid admissions to PSFL home football games during the term of this Agreement shall not exceed one dollar ($1.00) per paid ticket. The application of the Ticket Surcharge shall ' begin with the first PSFL game at the ORANGE BOWL Stadium following commencement of the terms of this Agreement and continue through the basic five (5) year term of this Use f Agreement and each of the two (2) five (5) year options, if so exercised. Receipts from the Ticket Surcharge collected from the PSFL games held at the ORANGE BOWL Stadium shall be used by the CITY for improvements and renovations to the ORANGE BOWL Stadium. Notwithstanding the foregoing, the Ticket Surcharge applicable to any renewal period is subject to adjustment during said renewal period, which adjustment 'shall be mutually agreed upon by the PSFL and the CITY prior to commencement of the renewal period, provided that the revenue form the Ticket Surcharge, as adjusted, ( shall be used by the CITY solely to perform improvements and renovations to the ORANGE BOWL Stadium during said renewal period, which improvements and renovations have been approved by the PSFL. S. PAYMENT: The PSFL shall remit to the CITY the Use Fee and Ticket Surcharge referred to in Paragraph 4 herein, and any other sums due CITY, within thirty (30) days after each PSFL game played in the ORANGE BOWL Stadium. Payment shall be by cash, cashier's check or PSFL check made payable to the City of Miami. Payments shall be made at the Orange Bowl Stadium, 1501 N.W. 3 Street, Miami, Florida 33125 during regular business hours on weekdays. The CITY may designate other locations for receipt of payments in accordance with Paragraph 5 herein. The CITY may audit the PSFL's ticket records to make final settlement of Use Fees and Ticket Surcharge for said football season upon reasonable advanced written notice anytime during the term of this Use Agreement including any options if exercised and for three (3) years thereafter. Late payments shall accrue simple interest at the rate of 12% per annum from the date they are due (or such other rate as is prescribed for judgements by Section -Y 5: 55.03, Florida Statutes, as amended.) 1s � 6. NATURE AND CONSTRUCTION OF AGREEMENT Notwithstanding anything contained herein to the contrary whatsoever, this Agreement is not intended to create, nor shall it be construed as creating or constituting, a lease between the parties or vesting any leasehold estate in PSFL or establishing the relationship of landlord and tenant. 7. NATURE AND EXTENT OF CHARGES ¢x= The fees and charges for the use of the ORANGE BOWL, as hereinabove provided in Paragraph 3, shall not constitute rental and shall not be construed as being rental but shall' be considered only as fees and charges for the right to use the I ORANGE BOWL on the dates so used, as above set forth. - 8. PRIORITY IN SCHEDULING i During the term of this Agreement and any extension or renewal thereof, PSFL and CITY agree the following organizations } shall have priority in scheduling the following events to be played in the ORANGE BOWL: 92- 19 - 6 - (a) The University of Miami for all of its regularly scheduled football games ( to be played, without- limitation, on either Friday or Saturday) with other colleges and universities. No University of Miami home games, however, shall be scheduled or played on Sundays or on any Saturdays after the second Saturday in the month of December of each year. If the University of Miami is required to change any scheduled event during any year for the purpose of participating in a regional, sectional, or nationally televised football game with another college, the University of Miami shall have the right to amend its schedule as to such game up to and including May 1 of each year prior to. the regular football season, and shall have the right to amend its schedule at any time for the purpose of participating in a regional, sectional or nationally televised football game with another college when such change does not conflict with any games scheduled by PSFL or would not require the scheduling of a game on the same day as PSFL. (b) The ORANGE BOWL Committee for the ORANGE BOWL Classic to be played on New Year's Day, the dcy before or the day after New Year's Day in the event any New Year's Day falls on a Sunday or a day of national mourning. (c) The Kiwanis Club of Little Havana for Carnaval Night commencing the first Saturday in March of every year. (d) The World Cup 1994 for the presentation of preliminary soccer games to be held at the Orange Bowl Stadium in the year 1994. The provisions of Paragraph 8 of this Agreement shall not be amended, modified or changed, nor shall any other provision of this Agreement be amended, modified or changed if such -amendment, modification or change shall adversell affect the priorities established in Paragraph 8, unless 15 days written notice, together with a true copy of the proposed changes, modifications or amendments, are first delivered to the organizations described in Paragraph 8 which shall be affected by such change and any such amendments must appear in writing and be executed by both PSFL and CITY. 92- 19 04 (a) CITY shall also continue its regular maintenance of the ORANGE BOWL with its regular full time personnel in a comparable manner as provided for other regularly scheduled football events at the ORANGE BOWL. (b) CITY shall furnish all stadium electrical power and water necessary for the use and operation of the ORANGE BOWL during the football games encompassed herein. (c) PSFL shall have the right, at PSFL's expense, to operate the stadium's public address system during PSFL's home games provided, however, such public address system shall not be used for the dissemination of paid advertising without the consent of the CITY. CITY may and will display advertising in the ORANGE BOWL during any period when PSFL shall be entitled to the use of the ORANGE BOWL as provided hereunder. (d) During the PSFL season no event will be scheduled that may have the. potential to damage the playing field without first notifying PSFL and receiving its prior consent, which consent shall not be unreasonably withheld. (e) During the PSFL season, the PSFL shall, at its sole expense, have the right to dress all stadium personnel in a uniform of its choice, which said uniform may reflect the home team. CITY retains all rights and privileges and control of the parking facilities of the ORANGE BOWL, and areas adjacent which are owned and operated by CITY. (b) CITY shall furnish, however, without cost to PSFL, 125 parking passes for each of its games (of which 25 may be in Lot S-2) which passes may be distributed by PSFL to its staff, its guests, and game officials. These 125 parking passes must accommodate the needs for all of the aforementioned persons and groups. CITY shall in addition issue all parking passes necessary to accommodate press coverage of PSFL's home football game. 9 2 -r 19 h1� (a) The CITY shall permit the PSFL to use up to 2,500 tickets per game for complimentary purposes, all complimentary tickets issued in excess of 2,500 shall have a value equal to a like ticket price offered for sale to the General Public and shall be included in the calculation to determine gross ticket sales as described in Paragraph 4 of this Agreement. (b) CITY will be given the right to the use of the President's Booth for all of PSFL games including any exhibition, play-off or Championship games located in the 6th level Press Box (c) The PSFL agrees to furnish tickets approved by the Stadiums Administrator and a ticket manifest for each game is to be presented to the Stadiums Administrator within five (5) days of the conclusion of the game. (d) CITY agrees to use its best efforts to discourage scalping and other non -authorized sales of PSFL's tickets in, on or about the ORANGE BOWL and the grounds adjacent thereto. (e) CITY shall provide an accurate count of attendance through the turnstiles of the ORANGE BOWL -iot later than the third quarter of each of PSFL's games played in the ORANGE BOWL. 12. CONCESSIONS (a) PSFL acknowledges that it has no concession rights during the term of this Agreement except as described herein, and except that PSFL reserves and at all times shall have the sole right to control, sell, rent, or give away (or assign to others the right to do so) novelties and or souvenirs which are PSFL related, game programs, yearbooks and other similar publications relating to PSFL (or any team in the PSFL). Sixty-five percent income from the net sales of the above shall accrue solely to*the PSFL, with 25% of net sales to the novelty concessionaire and i CITY shall receive 10% of net sales revenues. Net sales meaning after the cost to the league of purchasing merchandise is deducted. The,PSFL shall be responsible for payment of State of Florida Use Tax. City shall not engage in nor undertake the sale of any such articles without the written consent of the PSFL, In this connection, PSFL shall have the right to place stands (at its own expense) for the vending of such articles at mutually - agreed upon locations in and about the ORANGE BOWL. 13. CONCESSION RIGHTS; DISCONTINUANCE OF BEER SALES: The CITY shall control all concession rights of food, beverage (alcoholic and nonalcoholic) and noncompetitive novelty concessions which are not official PSFL novelties at all events staged within the ORANGE BOWL Stadium and its grounds. PSFL shall retain the right to sell football programs and any PSFL official novelties at the stadium and on stadium grounds, during the day of the PSFL football game and be allowed the use of a program room. —� If by a rule, regulation, law or policy, not promulgated by the CITY, the sale of beer is discontinued at the Stadium then in such event, the PSFL shall pay the CITY a sum equivalent to the difference between the per capita concession sales, exclusive of state sales and use taxes, for the preceding year less the per taxes for the { capita concession sales, exclusive of sales and use current year, times (X) the total attendance for the current ' year. Attendance shall be determined by. Stadium turnstile ;j counts, as verified by PSFL and CITY. If this amount is negative, PSFL shall not request a set off or credit against other fees paid. l 14. DAMAGE REPAIR PSFL agrees to repair any damage to the personal property and real property of the premises encompassed in this Agreement caused by any act of PSFL, its agents, employees or other occupants, customers, spectators, or any person whomsoever, except upkeep of the turf of the football field. If the damage is not repaired within 10 days after notice is given to PSFL, then CITY is hereby authorized to make such repairs at the cost and expense of PSFL. PSFL shall pay the City for cost so incurred i within 10 days from the date of billing. 15. BANKRUPTCY If bankruptcy proceedings shall be begun by or against PSFL or its assigns and PSFL or its assigns are declared bankrupt ' before the end of the term of this Agreement, CITY is hereby y2-- 1. S s 10 -.J _=a irrevocably authorized, at its option, to cancel this Agreement, unless the PSFL shall, within 30 days after the PSFL or its assigns are declared bankrupt, notify the City Manager in writing that it assumes all of the obligations hereunder. In addition, the Agreement may be terminated by either party hereto upon the dissolution of the PSFL or the dissolution of the PSFL franchise located in Miami. 16. CITY SEATS: PSFL shall set aside, at no cost to the CITY, one hundred (100) seats each year to be used by the CITY at a location mutually agreed upon each year by the PSFL and the CITY. 17. RECORDS AND AUDITS: The PSFL shall keep available at its offices or such other place within Dade County, Florida approved by the City Manager of the CITY, true, accurate and complete records and accounts of all ticket sales arising in connection with the PSFL Miami franchise's games on a per game basis, and shall give access to the authorized representatives of the CITY, during reasonable business hours, to examine and audit such records and accounts. The PSFL shall also maintain accurate and complete records of all complimentary tickets distributed. Upon execution of this Use Agreement, PSFL shall furnish a letter to the CITY Manager, or authorized designee, from an independent C.P.A. licensed in Florida, which establishes that the PSFL's internal controls are adequate to safeguard its assets and properly reconcile accounting transactions. This report will have to be reissued or supplemented each time, if any, the PSFL exercises a five (5) year option to renew this Use Agreement. The City Manager reserved the right to audit the records of PSFL any time during the term of this Use Agreement including any options of exercised and for three (3) years thereafter. 18. SCHEDULE NOTIFICATION: The PSFL shall notify the CITY, by furnishing to the CITY Manager a written schedule each and every year on or before the first day of August of the dates on which PSFL home football games are to be played during the following season. If the PSFL - 11 - 9?- 19 elects to reschedule a home football game after it has furnished the CITY Manager with a written schedule of the dates on which PSFL home football games are to be played, the CITY hereby agrees to permit the game to be rescheduled upon receipt of written notice from the PSFL to the City Manager, provided that on the date that the City Manager receives said written notice, the CITY has not executed a contract or use agreement granting another party the use of the ORANGE BOWL Stadium on said rescheduled date. The City shall have three (3) days from receipt of written notice from the PSFL whether the CITY has in fact executed a contract or use agreement granting another party' the use of the ORANGE BOWL Stadium on said scheduled date. If the CITY fails to respond to the PSFL's request, then it shall be deemed that the game is rescheduled for said date. 19. PERSONNEL: The PSFL shall have exclusive use of the southeast ticket office (Gate 8) and small ticket room west of Gate 12 (or equivalent space after the renovations conte;iplated in this Use Agreement are completed) for administration of ticket sales and personnel from 9:00 A.M. to 11:00 P.M. on days of PSFL football games. 19.2 CITY Responsibilities The CITY shall furnish, at PSFL's expense, the following: (1) Conferences, Conventions, and Public Facilities Department personnel routinely scheduled to work at the ORANGE BOWL Stadium (2) All working field and sideline personnel (3) Electrician (three) (4) ORANGE BOWL Stadium Operations Workers (5) Restroom Personnel (6) Communications Personnel (7) Groundstenders (8) Security Guards (9) Plumber (one) (10) Air Conditioning Mechanic 9 2 --- 19 12 (11) Cleanup Personnel (12) Fire Marshals (13) Law Enforcement Officers (14) Fire Rescue Personnel and Facilities (15) Parking Lot Attendants, and (16) Two Scoreboard Operators. The CITY shall furnish at its own expense, ticket takers, ticket sellers and ushers as required to stage the PSFL football games. The CITY shall provide all of the aforementioned personnel in sufficient numbers as is necessary during the staging of the games authorized by this Use Agreement. The personnel's function will be to handle seating and normal crowd control. 1 •_��• • • .M�_ 1• If at any time during the term of this Use Agreement, title to all or substantially all of the ORANGE BOWL Stadium shall be taken by condemnation or by right of eminent domain, this Use Agreement shall terminate on the date of such. taking and all use payments already made shall be apportioned as of the date of the taking. For purposes of this section, substantially all of any of the ORANGE BOWL Stadium shall be deemed to have been taken if that portion of the ORANGE BOWL Stadium not taken cannot be economically utilized by the PSFL for those purposes permitted under the preamble to this Use Agreement. 20.2 Partial Taking In the event that title to less than all or substantially all of the ORANGE BOWL Stadium is taken by condemnation or by right of eminent domain, this Agreement shall not terminate, but- the parties agree to negotiate in good faith any reduction that may be advisable with regard to the appropriate Use Fee during the remainder of the term of this Use Agreement. 20.3 General Provisions If there is a taking by right of eminent domain, the award shall belong to and be paid to CITY, except that PSFL shall receive from the award whatever amount it would be entitled under 2 -� 19 13 the eminent domain laws of the State of Florida. - 20.4 Frustration of Purpose At any time during the term of this Agreement, if the governing body of any political subdivision having competent jurisdiction over the premises should enact any valid, law or regulation which prohibits the use of the whole or a substantial part of any part of the stadium for the purposes as provided in �z this Agreement, it is .agreed that PSFL may elect, within one hundred twenty (120) days after the effective date of such -ii ordinance, law or regulation, to cancel this Agreement and surrender possessions of the premises. Any such cancellation and ' surrender will act to release a discharge from any further obligation under this Agreement. 21. DAMAGE -AND RESTORATION OR TERMINATION: i� 21.1 Restoration If the ORANGE BOWL Stadium is ever insured by the CITY as against loss by virtue of fire, windstorm, hurricane or other casualty, and such damage occurs to the ORANGE BOWL Stadium, the CITY will utilize said proceeds to rebuild o repair the ORANGE ?; i� BOWL if the proceeds are sufficient to affect ninety percent (90%) or more of the repair work. 21.2 Termination If all or any portion of the ORANGE BOWL Stadium is damaged by ."' fire or any other insured casualty during .the last three (3) years of the initial term of this Use Agreement or during the last three (3) years of any option period to such an extent that the cost of repair will exceed twenty-five percent (25%) or more of the overall value. of the ORANGE BOWL Stadium prior to such damage, then PSFL may, at its sole election, elect to terminate ' this Use Agreement. Notwithstanding anything contained herein to the contrary, the PSFL shall have no obligation to repair, reconstruct or replace all or any portion of the ORANGE BOWL Stadium. 22. ADMISSIONS . The PSFL's employees, necessary to perform the PSFL's one under its contract with the CITY, shall be admitted 9 2 -- 19 - 14 - free of charge by the PSFL prior to or during the staging of these games. b. Authorized CITY employees and Concessionaire employees shall have the right of ingress and egress to the ORANGE BOWL Stadium at any time, except that during PSFL games held pursuant hereto, only those employees who are actually performing services at that time and who have assigned identification shall be admitted to the ORANGE BOWL Stadium without payment of regular admission charges, and no PSFL or CITY officials not actually performing services shall be admitted without admission tickets. A list of such working personnel shall be supplied to the PSFL two hours before games. 23. RISK OF LOSS: PSFL shall indemnify and save harmless CITY, its officers, officials and employees against all risk of loss, injury, death or damage of any kind or nature whatsoever to property now or hereafter placed on or within said areas, and all risk of loss, injury or damage of any kind or nature whatsoever to the contents of such areas or improvements made by PSFL to the structure or structures, or to any goods, chattels, merchandise or to any other property that may now or hereafter be placed upon said areas, whether belonging to PSFL or others, when said loss, injury or damage results from negligence or use, rising water or from any other cause or other contingency, and whether the same be caused by the claimed negligence of CITY or any of its employees, agents, or otherwise, and to keep harmless CITY from all claims and suits growing out of any such loss, injury or damage. 24. HOLD HARMLESS: PSFL agrees to save and hold harmless CITY, its officials and employees from and against all suits and claims that may be based on any injury or alleged injury to any person (including death), or loss, damage, destruction, or to the property of any person, firm or corporation, that may arise, or that may be alleged to,have arisen, out of the operations and/or use of the Stadium by the PSFL, or any willful act of negligence of any of its agents, servants, or employees, whether such claim shall be made by an employee of PSFL, or by any third party, and 92- 13 15 - 0 shall apply whether or not it shall be claimed that the alleged injury or death or damage to property was caused through a willful or negligent act or omission of PSFL, its agents, servants or employees; and PSFL shall at its own cost and expense make and tender a defense on behalf of the CITY, pay all fees and charges of attorneys and all costs, damages, judgments, and other expenses arising therefrom or incurred by PSFL in connection therewith provided that PSFL retains the right, at its own expense, to deal with any action hereunder by employing its own legal counsel. Notwithstanding anything herein to the contrary, it is agreed that this hold harmless shall not apply to claims or - damages occurring at times that the PSFL is not in possession of the Stadium. The possession period includes without limitation: start-up, cleanup before and after a game and such times during non -game days. 25. ALTERATIONS The PSFL shall make no additions, partitions, improvements or alterations to the physical structure of the ORANGE BOWL Stadium or any part thereof without first having obtained the written consent of the City Manager, or designee. All requests shall be in writing and shall include plans and specifications pertaining thereto, and shall be subject to the further review, approval, and issuance of permits by all requisite CITY officials and other public authorities with jurisdiction. All alterations, improvements, additions or partitions made or installed by the PSFL shall become the property of the CITY at the conclusion of this Agreement, or, the modified area, structure or portion shall be returned to its original state, at the option of the PSFL. All such alterations, improvements, additions or partitions as set forth herein shall be made at the PSFL'S sole cost and expense. 26. CLOSED CIRCUIT m PAY TELEVISION: It is understood that the PSFL has no agreement or contractual commitment with any person, firm or corporation regarding closed circuit pay television. If, however, any time during the term of this Agreement, the PSFL shall enter into such a television contract and become entitled to receive revenue as a result of the telecast of the PSFL games - 16 - .92- 19 within a radius of 150 miles of the site of the said game, and if the attendance in the ORANGE BOWL Stadium decreases from full capacity, it will be conclusively and decisively assumed that such decrease was a result of the telecast on closed circuit pay television. In that event, the PSFL shall be obligated to pay the CITY a portion of its closed circuit pay television revenue to replace the CITY's monetary loss of Use Fees due to such telecast. Said portion shall be based upon the following formula: The paid attendance of the three (3) most recent PSFL games prior to the telecast game shall be averaged. Said attendance average shall be multiplied by the current ticket prices, and the resultant figure shall be multiplied by ten (10%) percent. The attendance average shall also be multiplied by the applicable ticket surcharge (or such other ticket surcharge as is currently prescribed by the City of Miami Code, as amended from time to time). The sum of these figures shall be the Estimate of Revenue for the telecast game. The difference between the revenues actually received by the CITY for the telecast game ..nd the Estimate of Revenue for the telecast game shall be the additional monies owed to the CITY by the PSFL and shall be payable in the manner as prescribed by Section 12 herein. An Amendment shall be promptly negotiated by the parties to effectuate this section, at t;ie time of the foregoing events occur. 27. GENERAL CONDITION A) All notices or other communications which shall or may be given pursuant to this Agreement shall be in writing and shall be delivered by personal service, or by registered mail addressed to the other party at the address indicated herein or as the same may be changed from time to time. Such notice shall be deemed given on the day on which personally served; or if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. PSFL: 1 Meadowlands Plaza East Rutherford, NJ 07073 CITY: City Manager 3500 Pan American Drive P.O. Box 330708 Miami, Florida 33133 y 2-- 1 within a radius of 150 miles of the site of the said game, and if the attendance in the ORANGE BOWL Stadium decreases from full capacity, it will be conclusively and decisively assumed that such decrease was a result of the telecast on closed circuit pay television. In that event, the PSFL shall be obligated to pay the CITY a portion of its closed circuit pay television revenue to replace the CITY's monetary loss of Use Fees due to such telecast. Said portion shall be based upon the following formula: The paid attendance of the three (3) most recent PSFL games prior to the telecast game shall be averaged. Said (' attendance average shall be multiplied by the current ticket ' - prices, and the resultant figure shall be multiplied by ten (10%) percent. The attendance average shall also be multiplied by the applicable ticket surcharge (or such other ticket surcharge as is currently prescribed by the City of Miami Code, as amended from time to time) . 'y The sum of these figures shall be the Estimate of Revenue for the =' telecast game. The difference between the revenues actually y=' received by the CITY for the telecast game ..nd the Estimate of Revenue for the telecast game shall be the additional monies owed YS -j1 to the CITY by the PSFL and shall be payable in the manner as prescribed by Section 12 herein. An Amendment shall be promptly negotiated by the parties to effectuate this section, at the time !: of the foregoing events occur. 1 27. GENERAL CONDITION 3' A) All notices or other communications which shall or F_ may be given pursuant to this Agreement shall be in writing and shall be delivered by personal service, or by registered mail addressed to the other party at the address indicated herein or as the same may be changed from time to time. Such notice shall be deemed given on the day on which personally served; or if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. PSFL: 1 Meadowlands Plaza ' East Rutherford, NJ 07073 CITY: City Manager 3500 Pan American Drive P.O. Box 330708 , j Miami, Florida 33133 9 2- 19 t - 17 - and Director, Department of Conferences, Conventions, and Public Facilities 400 SE Second Avenue Miami, Florida 33131 B) Titles and paragraph headings are for convenient reference and are not a part of this Agreement, C) In the event of conflict between the terms of this Agreement and any terms or conditions contained in any attached documents, the terms in this Agreement shall rule. D) Should any provisions, paragraphs, sentences, words or phrases contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida or CITY, such provisions, paragraphs, sentences, words or phrases shall be t deemed modified to the extent necessary in order to conform with Y � j such laws, or if not modifiable to conform with such laws, then R. same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect. E) Venue in any legal or administrative proceedings w (or mutually agreed upon arbitration proceedings) shall be in courts and/or before administrative tribunals and/or before arbitrators located in Dade County, Florida. } F) The parties may agree, in writing, to submit any controversy existing between them to arbitration in which event the practice and procedure set forth in the Florida Arbitration ll'!? Code, Chapter 682, Florida Statutes, as amended, shall govern. ., 28. ADVERTISING !' , During such times that the PSFL is in possession of the '. Stadium PSFL shall not allow any signs or advertising matter to ". be placed either in the interior or upon the exterior of the Stadium without having first obtained the approval of the City Manager or designee. is 29. INSURANCE AND 11IABILITY PSFL shall obtain, at its sole cost and expense, and P � maintain throughout the term of this Agreement, comprehensive general liability insurance in amounts of not less than 92— 19 a l $1,000,000 combined single limit for bodily injury and property damage. The City shall be named as an additional insured in said policy. All insurance shall be written by Florida licensed and registered insurance companies having at least an A:X rating per AM Best's Key Rating Guide (latest edition) The policy of insurance shall provide that the City be given at least thirty (30) days advance written notice of cancellation or material modification of said policy. Said policy shall be written on an occurrence basis, and the carrier shall be acceptable to the Insurance Coordinator, Risk Management Division, 174 East Flagler Street, Seventh Floor, Miami, Florida 33131. A certificate of insurance or the insurance policy shall be provided to the City's Insurance Coordinator prior to the execution of this Agreement, and all renewals, amendments, riders and endorsements shall be provided to the City Insurance Coordinator as they are received by the PSFL throughout the term of this Agreement 30. DEFAULT a) In the event either party defaults in the performance of any of the provisions of this Agreement, the ion -defaulting party shall have the following options, and its choice of any option shall in no way waive its right to select any other option at any time: I. The non -defaulting party or designee, shall give the defaulting party written notice of such default. If the defaulting party does not substantially cure said default within thirty (30) days in the event of a nonmonetary default and within seven (7) days in the event of a monetary default after written notice was given or make reasonable progress to cure said default, the non -defaulting party may terminate the Agreement,upon the giving of one additional thirty (30) day notice, at the end of which the termination will be automatic. In the event the PSFL is the defaulting party upon the occurrence of the automatic termination described above, CITY may exclude PSFL from the Stadium, and/or CITY may recover at law and/or in equity any and all claims which may be due the CITY; A. The City Manager or designee may bring an - 19 - appropriate civil action enforcing its remedies at law or in equity. (b) The PSFL's obligation to pay the use fees specified herein will survive any default and termination of this Agreement for any reason other than those set forth in Paragraph lb. The PSFL shall remain liable to CITY for the payment of such minimum Use Fees for the term of the Agreement in operative force and Affect at the time of cancellation until discharged by payment. This subsection shall not be deemed a limit upon the parties' remedies at law or in equity. 31. TERMINATION OF CONTRACT_ CITY retains the right to terminate this Agreement at any time during the term of the Agreement for cause determined by the City Commission at a public hearing, without penalty to CITY. In such event, notice of termination of this Agreement shall be in writing to PSFL, and all monies owed to CITY shall be due immediately upon receipt of such notice. 32. NON-DELEGABILITY The obligations undertaken by PS','L pursuant to this Agreement shall not be delegated or assigned to any other person or firm unless the City Manager shall first consent in writing to the performance or assignment of such services or any part thereof by another person or firm and unreasonably withheld. 33. ASSIGNMENT OR TRANSFER The PSFL shall not sublet, such consent may be transfer, convey, assign nor permit the use of the rights, privileges or premises granted under this Agreement in whole or in part to- any other person, firm or corporation without written consent of the City Manager or designee which consent may be unreasonably denied. Any assignment which may be approved by the City Manager will require that the assignee execute such assumption agreement and other instruments satisfactory to the City Attorney. 34. SUCCESSORS AND ASSIGNS This Agreement shall be binding upon the parties herein, their heirs, executors, legal representatives, 92- 19 -. J successors, and authorized assigns. 35. NON-DISCRIMINATION PSFL agrees that it shall not discriminate as to race, sex, color, creed, national origin or handicap in connection with its performance under this Agreement. 36. INDEPENDENT CONTRACTOR PSFL and its employees and agents shall be deemed to be independent contractors, and not agents or employees of CITY, and shall not attain any rights or benefits under the Civil Service or Pension Ordinances of the City or any rights generally afforded classified or unclassified employees; further, PSFL, its employees and agents shall not be deemed entitled to Florida Worker's Compensation benefits as an employee of the CITY. 37. CONFLICTOF INTEREST a. PSFL covenants that no person under its employ who presently exercises any functions or responsibilities in connection with this Agreement has any personal financial interests, direct or indirect, with CITY. PSFL further covenants that, this Agreement, no person interest shall be employed. in the performance of having such conflicting Any such interests on the part of PSFL or its employees, must be disclosed in writing to CITY. b. PSFL is aware of the conflict of interest laws of CITY of Miami (Miami City Code Chapter 2, Article V), Dade County, Florida (Dade County Code Section 2-11.1) and the State of Florida, and agrees that it will fully comply in all respects with the terms of said laws. 38. AWARD OF AGREEMENT PSFL warrants that it has not employed or retained any person employed by CITY to solicit or secure this Agreement and that it has not offered to pay, paid, or agreed to pay any person employed by CITY any fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or resulting from the award of this Agreement. -iJ - 21 - 9 2 - 19 39. ASSURANCES AND CERTIFICATIONS PSFL assures and certifies that PSFL possesses legal authority to enter into this Agreement; a resolution, motion, or similar action has been duly adopted or passed as an official act of PSFL'S governing body, authorizing the execution of this Agreement, including all understandings and assurances contained herein, and directing and authorizing the person identified as the official representative of PSFL to act in connection with PSFL and to provide such additional information as required. A copy of such resolution, motion or other transcribed action is attached hereto and mare a part hereof. 40. WAIVER Except those provisions reserved for CITY or PSFL, no waiver of any provision hereof shall be deemed to have been made unless such' waiver be in writing signed by the City Manager, or designee. The failure of CITY or City Manager to insist upon the strict performance of any of the provisions or conditions of this Agreement shall not be construed as waiving or relinquishing in the future any such covenants or conditions but the same shall continue and remain in full force and effect. 41. JURY TRIAL WAIVER To the extent allowed by law the parties expressly waive their right to a jury trial on any claim brought against the other which arises by virtue of this Agreement. 42. CONSTRUCTION OF AGREEMENT This Agreement shall be construed and enforced according to the laws of the State of Florida. 43. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS Both parties shall comply with all applicable laws, ordinances and codes of Federal, State and Local Governments. 44. ENTIRE AGREEMENT This instrument and its attachments constitute the sole and only Agreement of the parties hereto relating to said use of the ORANGE BOWL Stadium and correctly set forth the rights, duties, and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not - 9 2 --- 19 22 - I 11 ATTEST: i ATTEST: Corporate Secretay- APPROVED AS TO DEPARTMENTAL - REQUIREMENTS: THE CITY OF MIAMI, a municipal corporation of lie State of Florida , Cesar H. Odio City Manager PSFL: Professional Spring Football League, Inc. a For Profit Delaware Corporation. CV / L,-(l` aP -t , P f-C 1, 1 -- -�S>->s � = Tony Paja es, Director Department of Conferences, Conventions and Public Facilities APPROVED AS TO INSURANCE REQUIREMENTS: Segundo P ez, 'n Insuranc Coo ator Signature V 1 ry c e,,)r-r- 5L 1 F Print Name Title (SEAL) APPROVED AS TO FORM AND CORRECTNESS: .Q i n es III, Ll Acting C' Attorney 6111"- ,.4j - 24 - CITY OF MIAMI, FLORIDA 7 INTER -OFFICE MEMORANDUM TO DATE FILE Honorable Mayor and Members of the City Commission SUBJECT Resolution establishing fees for the Professional n Spring Football League at FROM �, !' REFERENCES the Orange Bowl Cesar H. Odio City Manger ' ENCLOSURES: It is respectfully recommended that the City Commission adopt the attached resolution establishing special charges, terms and conditions for the use of the Orange Bowl Stadium by the Professional Spring Football League for the presentation of their home spring football games beginning with the 1992 football season. The legislation would also authorize the City Manager to execute an agreement with this organization for this purpose. The Department Of Conferences, Conventions and Public Facilities has been working with the Professional Spring Football League for the presentation of their home spring football games, which will consist of eight (8) playing dates starting on March 14 through to June 13, 1992 at the Orange Bowl Stadium. This organization wishes to present its games from 1992 through to 1997, with a two (2) five (5) year renewal option. The PSFL and City have agreed that the following organizations shall have priority in scheduling: the University of Miami, for its regularly scheduled football games, the Orange Bowl Committee for its Orange Bowl Classic to be played on New Year's Day, the Kiwanis Club of Little Havana for their annual Carnaval Night and the World Cup 1994 for the presentation of preliminary soccer games. The Administration has determined that the PSFL's spring football schedule will not adversely affect these major tenants at the Orange Bowl Stadium. The Administration has prepared an agreement with the PSFL for a five (5) year period of use, with the option to extend the period for two (2) additional five (5) year periods. The Department of Conferences, Conventions and Public Facilities will collect approximately $573,500 in net revenues for the year 1992. The department will collect from the PSFL all applicable surcharges, police and event expenses for each game. A& 92- 19 1. PROFESSIONAL SPRING FOOTBALL LEAGUE, INC. REVENUE/EXPENSE PROJECTIONS ORANGE BOWL STADIUM 1992 Attendance: 150,000(15,000 for 10 games) Use Fee: $8,500 (per 8 regular games) $12,500 (per 2 playoff games) Surcharge: $1.00 Concessions: $1.95 per cap (food & beverage) Concessions: $1.50 per cap (novelties) Parking: $10.00(based on 2,500 parking spaces) REVENUES Use Fee Surcharge Concessions (food & beverage) Concessions (novelties - 10% net sales) Parking TOTAL EXPENSES Parking Personnel Ticket takers & Ushers ($2,500 per 8 regular games ($5,000 per 2 playoff games TOTAL NET REVENUE $ 93,000 150,000 123,000 22,500 250,000 $638,500 35,000 20,000 10,000 65,000 $573,500 92- 19 3 3AN-- 2-92 THU 1 .Y wM ,i...i♦ ...• mow.._ 1 1 II 1 0 L A W D E P T CITV Or MIAMI. FLORIDA 1hTER4ORFICE MEMORANDUM P g 2 - max L. Cruz 0ATK December 30, 1991 ntrK-91-452 Assistant Director [)apartment of Conference suNn:c:T. Professional Spring and Conventions Football League, Inc. ,oM Carmen,. Leon Assistant City ntIorney a0.'rr1"iNe21br WNCw6URCs Due to certain litigation between the City of Miami and the Florida Department of Revenue, the following iH suggested additional language to be inserted in the form of a footnote or additional provision at the beginning of Section 9: The parties understand that the City and the Florida Department of Revenue are currently contesting the issue of whether sales tax on lease payments for use of the Orange Bowl must be paid. PSFL agrees to pay 6% sales tax on the lease payments to the City and the City agrees to keep the sales tax payments in an interest -bearing escrow account. In the event it is determined that sales tax must be paid, the City will transfer the sales tax payments to the State. In the event a final judicial or administrative determination is made that no sales tax is due, the City will return the sales tax payments along with accrued interest to PSFL. Please make the appropriate change In the agreement and have the parties execute a new agreement. CLx,/ebg/PO4 s 92— 19 2