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HomeMy WebLinkAboutR-90-0370J-90-405 05/24/90 RESOLUTION NO. 9 © - 370 A RESOLUTION, WITH ATTACHMENT, ESTABLISHING CHARGES, TERMS AND CONDITIONS FOR THE USE OF THE ORANGE BOWL, STADIUM BY THE UNIVERSITY OF MIAMI FOR SEASON HOME FOOTBALL GAMES FOR A TEN YEAR PERIOD, WITH THE OPTION ON THE PART OF THE UNIVERSITY TO EXTEND SAID TERM FOR TWO ADDITIONAL FIVE-YEAR PERIODS; FURTHER i AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, BETWEEN THE CITY OF MIAMI AND THE UNIVERSITY FOR THIS PURPOSE; SUBJECT TO THE SUCCESSFUL RESOLUTION BY THE CITY MANAGER .AND THE UNIVERSITY OF THE TWO REMAINING ISSUES CONCERNING LIABILITY INSURANCE AND CITY PRESS BOX SEATING WITH INFORMAL REVIEW AND APPROVAL BY INDIVIDUAL MEMBERS OF THE CITY COMMISSION I OF THE SOLUTIONS TO THOSE ISSUES. WHEREAS, the City of the Miami and the University of Miami have established a successful long-term relationship through the presentation of the University's NCAA season home football games at the Orarge Bowl Stadium; and WHEREAS, the existing agreement between the City and the University for the use of said stadium is due to expire with the last regularly scheduled game in November 1990; and i4 WHEREAS, representatives of the City and University have diligently worked to negotiate a new long-term agreement for the continued use of the stadium; and WHEREAS, said agreement provides for a ten year period of use, with the option to extend the period for two (2) -additional —'- five-year periods on the part of the University; and WHEREAS, the agreement also provides for a per game use fee to the City consisting of a $25,000 minimum guarantee versus 10% of gross admission sales receipts, whichever is greater, with said minimum guarantee being subject to escalation throughout the - use period according to the effective rate of the consumer price index on condition that such escalation shall not be less than 4% nor greater than 6%; and ATTACH MEIN - CONTAINED MAY 24 19W 9a4 701 WHEREAS, the parties have agreed that the University shall, have the right to control, upon payment to the City of the prevailing stadium parking rate, a minimum of 2000 parking spaces in the vicinity of said stadium for said games, and that the number of spaces for the University shall increase at a rate of i 20% per year until a maximum of 3400 spaces is reached; and WHEREAS, it is recommended that the University shall also collect on behalf of the City a $1 ticket surcharge on admissions i to said games and the City shall use such revenue for improvements to the stadium that are recommended by the University and approved by the City; and WHEREAS, until January of 1991, the University shall have s the option to provide, at its own expense, a scoreboard system j for the stadium which will be installed and owned by the City and i maintained by the University; and F WHEREAS, under the terms of the proposed agreement the } University shall have the right to manage and collect revenue for advertising on the scoreboard system and on ten (10) facia boards within the stadium and shall pay to the City a minimum of $48,000 per year or 15% of all gross advertising revenue, whichever is greater; and WHEREAS, the attached proposed 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 proposed charges, ter►rts and conditions for such - use by the University will assist the City in securing -'�' significant revenues in the form of use fees, surcharge, parking _ and concession revenue for the continued operation, maintenance $4f and improvement of this City facil.ity; and WHEREAS, the City Manager recommends that the Cornrnission approve the charges, terms and conditions yet forth in the attachment to this Resolution and further that the execution of !` j the necessary agreement be authorized; and Or 370 _ 2 WHEREAS, Section 53--1.31(C)('1) 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 University of Miami are hereby established for said University's presentation of NCAA season home football games for ;f a ten (10) year period, with the option on the part of the University to extend said term for two (2) additional five-year i a periods. Section 3. The City Manager is hereby authorized to execute said agreementll, in substantially the attached form, between the City of Miami and the University of Miami. Section 4. The herein authorization is hereby subject to and conditioned upon the successful resolution by the City Manager and the University of the two remaining agreement issues, which concern liability insurance and City press box seating, with there being informal review and approval by individual members of the Ciy Commission of the solutions to said issues. Section 5. This Resolution shall become effective - immediately upon its adoption. 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 appplicable City Charter and Code provisions. 9l-� 70 XAVIER L. SUAR Z� MAYOR ATT ST MATTY HIRAI, CITY -CLERK APPROVED AS TO FORM AND CORRECTNESS: .-JO GE F RNAN E f, CI Y ATTOR EY 1 USE AGREEMENT -- ORANGE BOWL STADIUM 2 3 4 THIS USE AGREEMENT, made and entered into this day of 5 , 1990, by and between THE CITY OF MIAMI, 6 a municipal corporation organized and existing under the laws of 7 the State of Florida (hereinafter referred to as CITY) and the B UNIVERSITY OF MIAMI, a not for profit corporation, organized and 9 existing under the laws of the State of Florida (hereinafter 10 referred to as UNIVERSITY); li RECITALS: 12 WHEREAS, the UNIVERSITY schedules some of the finest football 13 games in the country; and 14 WHEREAS, the UNIVERSITY'S team has grown with the City of 15 Miami; and 16 WHEREAS, various Orange Bo 1 Stadium enlargements and 17 improvements were made possible ltx o h mutual cooperation between 18 the CITY and the UNIVERSITY• 0 19 WHEREAS, through t 1 efforts of the parties hereto, the 20 CITY was able to double d ck the Orange Bowl Stadium; and 21 WHEREAS, the Trust Indenture and the bonds issued pursuant to 22 said indenture were made possible through the UNIVERSITY'S entering 23 into a long-term contract with the CITY, paying to the CITY a 24 17.65t Admission Tax prior to 1966; and 25 WHEREAS, it is the intention of the CITY to make additional 26 improvements to the Orange Bowl Stadium; and 27 WHEREAS, it is with the express concurrence of the UNIVERSITY 28 that these improvements are essential in gaining public support for 29 the UNIVERSITY'S football program for years to come; and 30 WHEREAS, it is understood that the UNIVERSITY.'S support of 31 such a CITY Orange Bowl Stadium improvement program would have to 32 come in the form of" additional revenues raised from the sale of 33 UNIVERSITY football tickets over the basic term as well as during 34 the duration of any option years of this Use Agreement; and 35 WHEREAS, the UNIVERSITY has agreed to the implementation and 36 collection of the ticket surcharge (hereinafter "Ticket Surcharge") 37 to be levied by the City of Miami Code and applied as provided 38 herein, against each ticket sold for admission to all UNIVERSITY 90- 370 39 home games. The City of Miami Code requires that such Ticket 40 Surcharge shall be in addition to the stated admission price; and 41 WHEREAS, the application of the Ticket Surcharge shall begin 42 upon commencement of the term of this Agreement; and 43 WHEREAS, it is the desire of the UNIVERSITY and the CITY to 44 enter into this new Use Agreement for a period of ten (10) years 45 for the use of the Orange Bowl Stadium for not less than sixty (60) 46 UNIVERSITY home varsity football games during the original ten (10) 47 year term, which said contract may be extended for two additional 48 five (5) year periods at the option of the UNIVERSITY for which a 49 minimum of thirty (30) home games shall be played during each 50 renewal period; 51 NOW, THEREFORE, in co sa ion of the premises and the TO 52 further consideration h% ter set forth, it ,s agreed as 53 follows: \�v> 54 1. CITY HERM AGREES: 55 1. TERM AND PURPOSE: CITY shall allow UNIVERSITY the use 56 of the Orange Bowl Stadium for a period of ten (10) years, 57 commencing at the time provided below, and for two additional five 58 (5) year periods on the same terms and conditions contained herein, 59 at the option of the UNIVERSITY, for the purpose of playing not 60 less than sixty (60) games during the initial ten (10) year period, 61 and thirty (30) games during each renewal period exercised. The 62 UNIVERSITY's use of the Orange Bowl Stadium shall include the City 63 Box. If the UNIVERSITY elects to furnish the Scoreboards pursuant 64 to paragraph 3.1 and the Scoreboards are installed prior to the 65 beginning of the 1990 football season, the term of this Agreement 66 shall commence at the beginning of the 1990 football season. If 67 the Scoreboards are not installed at the beginning of the 1990 68 football season, then the term of this Agreement shall commence at 69 the beginning of the 1991 football reason. If the UNIVERSITY 70 elects to exercise such renewal option or options, it shall do so 71 by providing written notice to the City Manager of its intent to 72 exercise such option at least three hundred and sixty (360) days 73 prior to the expiration of the prior term. The City Manager will 2 90- 370 AV Aff 74 respond within thirty (30) days of the UidlVERSITY°S request if the 75 City Manager does not wish to grant the extension and shall state 76 his reasons which must be based on a material default by the 77 UNIVERSITY under this Use Agreement. Notwithstanding any other 78 provision herein, in the absence of a material default by the 79 UNIVERSITY at the time of notice of its intent to exercise such 80 option, the City Manager will not withhold his consent to such 81 extension. In the event of a material default, the UNIVERSITY will 82 have thirty (30) days to fully cure the material default complained 83 of by the City Manager and may, if UNIVERSITY so desires, again 84 exercise the option at the end of said thirty (30) day period. 85 2. PROTECTIONS: CITY shall exclude all other athletic 86 events from the Orange Bowl Stadi'kfor five (5) days, and shall 87 exclude all other events fore four (24) hours, preceding the 88 dates that the UNIVERSITK�aVf be playing its scheduled games. 89 Except as provided above e CITY retains and reserves its rights 90 to schedule other athletic and entertainment events, such as games, 91 concerts, shows, exhibitions, festivals, and the like, provided, 92 however, that the CITY shall fully protect the Orange Bowl Stadium 93 playing surface to such an extent that no irreparable field damage 94 will occur and that the playing surface will be nothing less than 95 equal to the playing surface provided for the previously scheduled 96 UNIVERSITY game. Football games, such as the Orange Blossom 97 Classic, Bethune-Cookman and high school football, as well as 98 international soccer matches, will be encouraged to play during 99 this off time because of local, state and national publicity. 100 Notwithstanding the foregoing, for the twenty four (24) hour period 101 immediately prior to the scheduled date of every game, the 102 UNIVERSITY shall have (i) non-exclusive use rights to the Orange 103 Bowl Stadium in general, and (ii) exclusive use rights to the 104 playing field and both the home and visiting locker rooms in 105 anticipation of the game and practice for the UNIVERSITY football 106 team and the visiting football team. 107 3. ELECTRONICALLY OPERATED SCOREBOARDS AND ADVERTIS�JG. 108 3.1 Acguisition of Scoreboards 3 90- 370 109 The UNIVERSITY shall have the option to furnish, at its sole 110 cost and expense, an electronically operated animated scoreboard ill for use in the East -End Zone of the Orange Bowl Stadium and an =_ 112 electronically operated scoreboard (non -animated) for use in the 113 West -End Zone (the "Scoreboards") of the Orange Bowl. Stadium. 114 Subject to the following conditions, this option may be 115 exercised by the UNIVERSITY delivering written notice of such 116 election to the CITY at any time prior to January 31, 1991 .— 117 ("Expiration Date"). A condition precedent to the UNIVERSITY'S 118 exercise of such option is the approval by the City Manager of the 119 type of Scoreboards to be furnished by the UNIVERSITY. The { 120 UNIVERSITY may deliver to the CITY plans and specifications 121 ("Plans") describing the Scoreboards. The City Manager shall 122 notify the UNIVERSITY in writing wheltr he type of Scoreboards 123 is approved and, if approved, h riod of time necessary to o Vvv 124 permit the CITY'S installati a Scoreboards from the date of f 125 delivery of the Scoreboards to the CITY. If the City Manager's 126 notification to the UNIVERSITY is delivered more than 30 days after =! 127 the UNIVERSITY'S delivery of the above -described Plans, then the =�1 128 Expiration Date shall be extended by the same number of days that 229 delivery of the notice to the UNIVERSITY exceeds such 30-day - 130 period. The CITY acknowledges that the delivery of Plans of the 131 Scoreboards to the CITY shall not constitute an election by the 132 UNIVERSITY to furnish the Scoreboards. If the CITY disapproves the - s 133 Plans, the UNIVERSITY shall have the right to deliver revised plans 134 and specifications, in which case the foregoing process may be 135 repeated. If the UNIVERSITY does not elect to purchase and furnish 136 the Scoreboards for the Orange Bowl Stadium, then Paragraphs 3.2, l" 137 3.3, 3.40 3.5, 3.6 and 3.7 of this Use Agreement shall be of no w J 138 force and effect and the: following paragraphs shall be substituted 139 in lieu thereof: 140 E.ECTRONICALLY OPERATED ANIMATED SCOREBOARDS: The design 141 documents and plans of the CITY for the Orange Bowl 142 Stadium call for the construction and erection of. an 143 electronically operated animated Scoreboard for use in 4 90- 370 9 144 the Fast -End Zone of the Orange Bowl Stadium and an 145 electronically operated scoreboard (non --animated) for use 146 in the West -End Zone of the orange Bowl Stadium (the 147 "Scoreboards"). The CITY agrees and shall be obligated 148 to furnish and install or cause to be installed the 149 Scoreboards at its cost and expense no later than August 150 31, 1991. Upon completion of the construction and 151 erection of said Scoreboards, they shall be under the 152 full and complete operation, maintenance, control, and 153 direction of the CITY. The UNIVERSITY does hereby 1.54 recognize and agree that advertising from time to time 155 during the UNIVERSITY'S football games is absolutely 156 necessary and essential to pro advertising revenues i 157 to the CITY to help defra eh cost of the Scoreboards. 158 The UNIVERSITY shall px4 the CITY with advertising � V" 159 openings during allwMe-outs while the game is in 160 progress. Said CITY advertisements shall not exceed the 161 time period(s) of the time-out(s). The CITY shall be -'? 162 permitted to advertise all CITY events being held at all - i 163 CITY facilities on the orange Bowl Stadium Scoreboards �~+ i 164 prior to, at intervals in, and after each UNIVERSITY - 165 game. The CITY shall not advertise or permit any 166 advertisement to be displayed while any football game is 167 in progress, or pregame or half time shows are in — x 168 progress. The UNIVERSITY shall be allowed a maximum of i„ 169 eight (8) minutes of Scoreboard time during each game to 170 express its thanks to the game sponsors and to promote 171 the UNIVERSITY as follows: 1.5 minutes in the pregame 172 portion, immediately preceding the kickoff; 1 minute at 173 half time; 1.5 minutes at the conclusion of such game, 174 and a maximum of one (1) minute for each quarter. No 175 commercial advertising by the UNIVERSITY shall be allowed 176 on the Scoreboards at any time, provided, however, that 177 the UNIVERSITY shall be allowed to have noncommercial - 178 spots promoting the UNIVERSITY and thanking and 5 - 90- 370 - �V 0 46 179 acknowledging UNIVERSITY patrons, sponsors, or guests of 1S0 honor. The UNIVERSITY shall not employ animation in 181 recognition of its patrons and/or sponsors, but may use 182 animation to promote the UNIVERSITY. All visual 183 exhibitions will be in good taste and suitable for 184 viewing by the general public, as determined by the City 185 Manager. 186 ADVERTISING: During such times that the UNIVERSITY is 187 in possession of the Orange Bowl Stadium, UNIVERSITY 188 shall not allow any signs or advertising matter to be 189 placed either in the interior upon the exterior of the 190 Orange Bowl Stadium wit u4a ing first obtained the 191 approval of the Ci. 4 1 r or designee, which approval 192 shall not be unreas nably withheld. 193 3.2 Installation of Scoreboards 194 The CITY agrees and shall be obligated to install or cause to 195 be installed the Scoreboards in compliance with all applicable law, 196 within the time period set forth in its notice to the UNIVERSITY 197 pursuant to Section 3.1 hereof. The CITY shall provide an adequate 198 structural support system for the Scoreboards at no additional cost 199 to the UNIVERSITY and shall provide a power source capable of 200 running the Scoreboards at no additional cost to the UNIVERSITY. 201 The CITY shall be solely responsible for all costs arising out of 202 or in connection with the in6La,llation of the Scoreboards. 203 3.3 Title to Scoreboards 204 Upon delivery of the Scoreboards, the UNIVERSITY shall either 205 (1) cause the manufacturer to convey said Scoreboards to the CITY 206 by execution and delivery to CITY of the manufacturer's standard 207 conveyance documents, or (ii) deliver a bill of sale without 208 warranties executed by UNIVERSITY in favor of CITY. In the event 209 UNIVERSITY finances the purchase of the Scoreboards, the CITY 210 agrees that the Scoreboards shall be conveyed to it subject to the 211 terms of any financing documents in connection with said purchase. 212 During the term of this Use Agreement including the two option 21.3 periods, if exercised, the CITY hereby agrees not to create or A 90- 370 214 permit to be created or to remain, any pledge, enCUMbrar3ce, lien, 215 claim or charge encumbering or affecting the Scoreboards. 216 3.4 Maintenance and Operation of Scoreboards 217 The CITY shall (i) not remove or relocate the Scoreboards 218 except as permitted hereunder and (ii) be responsible for and 219 assume all costs and expenses incurred in connection with the use 220 and operation of the Scoreboards, including, without limitation, — 221 insurance in an amount equal to the replacement value of the 222 Scoreboards, except that the UNIVERSITY shall be responsible for 223 maintenance and repair of the Sc beds. The UNIVERSITY shall 224 be an additional insured ntn insurance provided by CITY 0 "' 225 hereunder and a certifj shall be issued by the insurer 226 evidencing same. The CITY shall further (i) provide qualified 227 operator(s), subject to the approval of the UNIVERSITY, to run the 228 Scoreboards during all scheduled UNIVERSITY football games and (ii) 229 be solely responsible for and assume all costs associated with 230 providing operator(s) to run the Scoreboards during all scheduled 231 UNIVERSITY football games. The CITY shall also be solely 232 responsible for providing operator(s) for the Scoreboards, and to 233 pay for all costs associated with providing operator(s), for any 234 other athletic and entertainment events, if the CITY chooses to use 235 the Scoreboards during such other athletic and entertainment 236 events. 237 3.5 advertising in the Orange Bowl Stadium 238 In consideration for the UNIVERSITY'S agreement to provide the 239 Scoreboards and the payments by the UNIVERSITY hereinafter 240 described, the CITY hereby grants to the UNIVERSITY, effective from 241 the date of delivery by the UNIVERSITY to the CITY of the 242 Scoreboards pursuant to the terms hereof, the following advertising 243 rights in connection with the Scoreboards and within the Orange 244 Howl Stadium: The University shall have all advertising rights in 245 connection with the Scoreboards, any other now or hereafter 246 existing scoreboard(s) within the Orange Bowl Stadium and any and 247 all facia boards located on the facing of the Orange Bowl Stadium 248 which separates the upper and lower decks of the Stadium for any 7 90 - 370 t2-- 249 and all events held at the Orange Bowl Stadium. The UNXVERSITY 250 agrees that no more than ten (10) facia boards shall be located on 251 the facing on the north and south sides of the Stadium at any one 252 time. UNIVERSITY shall additionally have the right to place or 253 allow to be placed permanent advertising signage in the concession 254 areas, hallways and restrooms of the Orange Bowl Stadium, subject 255 to the approval of the City Manager, which approval shall not be 256 unreasonably withheld. For all UNIVERSITY football games the 257 UNIVERSITY shall further have advertising rights to all other 258 locations within the Orange Bowl, Stadium, including but not limited 259 to the field, balloons anchored on t grounds of the Orange Bowl 260 Stadium or attendant parking lot�an banners, subject to the 261 approval of the City Managergt$�ich approval shall not be 262 unreasonably withheld. T �IVERSITY agrees that a name 263 recognition panel shall be pl d on or near one of the scoreboards 264 containing the name of the City of Miami. If the Orange Bowl 265 Classic is played in the Orange Bowl Stadium, a name recognition 266 panel shall be placed on or near one of the Scoreboards during the 267 Orange Bowl Classic only containing the name of the title sponsor. 268 Any such name recognition panel shall not contain any logo or 269 advertising material other than the name of the sponsor. 270 In connection with the advertising rights granted to it 271 hereunder, UNIVERSITY shall make the following payments to the 272 CITY: 273 (A) UNIVERSITY shall annually pay to CITY during the 274 term of this Agreement, which payment shall be due and payable on 275 or before March 1 of each year commencing on March 1 of the year 276 following the calendar year in which the Scoreboards have been 277 installed and operating for the football season, (i) the sum of 278 $48,000.00; or (ii) fifteen percent (15%) of the net proceeds of 279 revenue received by the UNIVERSITY from the sale of advertising 280 rights attributable to the preceding calendar year on the 281 Scoreboards, any other now or hereafter existing scoreboard (s), and 282 the facia boards, whichever is greater. For purposes of this 283 paragraph, "net proceeds" shall be defined as advertising revenue 8 00- 370 s 294 which is attributable to the preceding calendar year, less the cost 285 of the :scoreboards attributable to the preceding calendar. year 286 (i.e., 1/10 of the cost per year). The "cost" of the Scoreboards 287 shall be defined as the total of all costs associated with 288 acquisition of the Scoreboards including but not limited to the 289 purchase price, financing charges, and interest. The parties 290 expressly agree that in the event any advertiser with whom the 291 UNIVERSITY enters into an agreement for the sale of advertising 292 rights at the orange Bowl Stadium (hereinafter referred to as 293 "ADVERTISER") pays the UNIVERSITY for advertising rignts in 294 advance, UNIVERSITY shall be deem to receive revenue from said 295 payment for purposes of the ca%lation in (ii) above and (B) 296 below, for the number of ye ss r which said advertising rights 0 297 were prepaid in equal ysums of the amount of the total 298 payment divided by the number of years for which payment was made. 299 For example, if an Advertiser pays $15,000.00 to place advertising 300 on a scoreboard panel for a period of ten years, the UNIVERSITY 301 shall be deemed to receive revenue from said sale of advertising 302 for ten years in the amount of $1, 500.00 per year regardless of the 303 year in which the UNIVERSITY receives payment from the Advertiser. 304 (B) In addition to and concurrently with the payment 305 described above, UNIVERSITY shall pay to CITY a sum equal to 306 fifteen percent (15%) of the revenue received by UNIVERSITY from 307 the sale of permanent advertising attributable to the preceding 308 year, which shall be located other than on the Scoreboards, any 309 other now or hereafter existing scoreboard(s) and the facia boards. 310 (C) UNIVERSITY shall pay to CITY a sum equal to fifteen 311 percent (15%) of the revenue received by the UNIVERSITY from the 312 sale of advertising during UNIVERSITY football games, other than 313 advertising described in (A) or (B) above, which payment shall be 314 made as provided in paragraph 10 of this Agreement. 315 Notwithstanding anything herein to the contrary, from the date 316 hereof until such time as the CITY'S grant of the advertising 317 rights described above becomes effective, the CITY hereby agrees 318 and authorizes the UNIVERSITY to enter into negotiations for the 0 90- 370 319 sale of advertising rights as described herein and to sell.- 320 advertising rights at the Orange Bowl Stadium as if the advertising 321 rights were granted immediately, provided that in any advertising 322 agreement that the UNIVERSITY enters into prior to the time the 323 CITY's grant of the advertising rights described above becomes= 324 effective, the ADVERTISER will acknowledge that any advertising 325 rights granted to it are conditioned upon the UNIVERSITY'S delivery 326 of the Scoreboards to the CITY under the terms of this Use 327 Agreement. UNIVERSITY agrees to indemnify and hold harmless the 328 CITY to the extent of the CITY's lAbility set forth in Section 329 768.28 (Fla. Stat. 1989) against�y and all damages, including 330 reasonable attorney's fees, a i out of any claim or suit which 0 331 may be brought against UNI� Y by an ADVERTISER in connection 332 with the sale by UNIVERSITY o�f advertising rights pursuant to this 333 Agreement. The UNIVERSITY shall bear all costs of its advertising 334 and promotion at all UNIVERSITY football games and all commissions, 335 costs, fees and other expenses associated therewith, and the CITY 336 shall not be responsible in any way therefor. 337 At the UNIVERSITY'S request, the CITY agrees to (i) install 338 any and all advertising signage (other than on the Scoreboards or 339 any other now or hereafter existing Scoreboards) and (ii) provide 340 necessary and sufficient electrical power to serve all of the 341 advertising signage. The UNIVERSITY will bear the reasonable cost 342 of installation of advertising signage by CITY pursuant to this 343 paragraph. Any such signage to be installed within the Stadium is 344 subject to the approval of the Public Works Department of the CITY 345 with respect to whether installation of such signage would 346 constitute a safety hazard. 347 Notwithstanding the advertising rights expressly granted by 348 the CITY to the UNIVERSITY herein, the CITY shall have advertising 349 rights for all athletic and entertainment events, other than the 350 UNIVERSITY football games, provided, however, that any 351 advertisements procured by the CITY for such other athletic or 352 entertainment events shall (i) only be used or displayed through 353 the use of the animated portion of the animated scoreboard (not on 10 go- 370 L�,, 354 any other portion of this scoreboard or on the non -animated 355 scoreboard) and in such other parts of the Orange Bowl Stadium as 3.56 permitted hereunder and (ii) shall not interfere with, or obstruct = 357 the view of, any fixed advertisements procured or produced by the 358 UNIVERSITY for use or display within the orange Bowl Stadium 359 (including the facia boards) or on the Scoreboards or any other now 360 or hereafter existing scoreboard. Nothing contained herein shall 361 prohibit the CITY from placing permanent advertising signage on 362 the exterior wall of the orange Bowl .Stadium, provided that said 363 signage shall not face the interiorthe Stadium and shall not 364 interfere with or �� obstruct the v`e�"Zbf he Scoreboards. "'WVand The CITY 365 shall bear all costs of adve 'sb promotion of all athletic 366 and entertainment events o� than UNIVERSITY football games and 367 all commissions, costs, fees and other expenses associated 368 therewith, and the UNIVERSITY shall not be responsible in any way 369 therefor. 370 The CITY acknowledges and agrees that (i) it has granted 371 advertising rights at the orange Bowl Stadium to Miller Brewing 372 Company, Anheuser-Busch, Inc. and Kentwood Spring Water, Inc. 373 pursuant to those certain advertising agreements more particularly 374 described on Exhibit "A" attached hereto and made a part hereof 375 (the "Existing Agreements") ; (ii) it has not and will not grant any 376 other advertising rights at the orange Bowl Stadium to any other 377 person or entity other than as permitted pursuant to this Use 378 Agreement; (iii) any payments the CITY receives pursuant to the 379 Existing Agreements will reduce the annual amount the UNIVERSITY 380 is obligated to pay the CITY pursuant to this Paragraph 3.5 on a 381 dollar for dollar basis; (iv) the CITY hereby authorizes the 382 UNIVERSITY, at the UNIVERSITY'S option, to enter into negotiations 383 with the entities referenced in the Existing Agreements for new 384 advertising agreements between such entities and the UNIVERSITY; 385 and (v) it will not exercise any option to renew and it will 386 terminate any or all of the Existing Agreements upon the written 387 request of the UNIVERSITY and the appropriate entity referenced in 388 the respective Existing Agreement. 11 90- 370 I_� 389 3.64v_ertsny and Concession contracts 390 For purposes of this Paragraph the term "Advertising 391 Agreement" shall mean any now or hereafter advertising agreement 392 that the UNIVERSITY has now or hereafter entered into for the 393 granting of advertising rights at the Orange Bowl Stadium. 394 CITY acknowledges and agrees that (i) it will use its best 395 efforts to comply with all terms and provisions of the Advertising 396 Agreements; (ii) if any or all of the Advertising Agreements 397 provide that the company which has been granted advertising rights 398 have its product be sold or supplied^a'�kphe Orange Bowl Stadium, 399 then the CITY will use its best ef�t4 in good faith to only enter 0 400 into concession contracts w e said product(s) shall be sold or 401 supplied at all athletic an entertainment events held at the 402 Orange Bowl Stadium, including but not limited to, the UNIVERSITY 403 football games; and (iii) in the event subparagraph (ii) applies, 404 it will use its best efforts to cause said product to be available 405 throughout the entire Orange Bowl Stadium, including but not 406 limited to, all concession stands, on the field, and any and all 407 vendors located within the boundaries established by the CITY's 408 concession contract for the sale of concessions at the Orange Bowl 409 Stadium. 410 CITY agrees that it will deliver to UNIVERSITY a copy of each 411 concession contract prior to entering into or renewing same. CITY 412 agrees that it will not enter into or renew any concession contract 413 prior to obtaining from the UNIVERSITY (if timely delivered) a list 414 of all advertisers that desire product rights within the Orange 415 Bowl Stadium. The UNIVERSITY shall have twenty (20) days from the 416 date of its receipt of the CITY'S written request to provide the 417 CITY with said list. If the UNIVERSITY fails to respond to the 418 CITY'S request then it shall be deemed that there are no 419 advertisers that desire product rights. 420 In the event the CITY fails to comply with the provisions of 421 this Paragraph 3.6, the CITY shall be deemed to be in immediate 422 default of this Use Agreement and the UNIVERSITY shall have the 423 immediate right, but not the obligation, to terminate this Use 12 go-- 370 r 424 Arjrp-empnt~ , an(.I/o procr—: cl at ill egll i t:.y In ;Itry a r1 c3 425 all of its rights under. this IJse Agreement. 426 3.7 Warr] d_Cup _ Soccer 2-3a#:cties 427 In the event, a World Cup Soccer mat.cii or matches are played 428 at the Grange howl. Stadium pursuant to or in connection with that 429 certain Reservation Agreement dated July 29, 1-987 by and between 430 World Cup USA 1994, Inc., and the CITY (the "Reservation 431 Agreement") , then for the months of. May, Jane and July of 1994 the 432 rights granted pursuant to the Reservation Agreement shall control 433 and supersede the advertising rights granted to the UNIVERSITY 434 under this Use Agreement. In the ev it is necessary under the 1 435 Reservation Agreement to remov �' ocate any of the advertising 436 granted by the UNIVERSITY, tfi�� Y, at its sole cost and expense, 437 shall perform such r-einoval and/or relocation and shall cause such 438 ad,,,,ert.i-sing to be- returned to its previous location in its previous 439 condition, inaliediately after the conclusion of the World Cup Soccer 440 match or viatche 3. 441 4.;i;C1VATOPdS: The CITY agrees to complete renovations — 442 and irclprovements to the Orange Bowl Stadium as provided herein and y aclll=.nuw ti=daes that the foregoing is a material inducement to the UNIVERSITY entering into this Use Agreement. Said renovations and - }= improvements shall include any and all structural repair work to the Orange. Bowl Stadium, which work shall be completed at the r gr` CITY' s expense prior to the 1991 football season. The CITY warrants and represents that the Orange Bowl Stadium is and shall 449 remain throughout the term of this Agreement, including any option 450 periods if exercised, safe and structurally sound in all respects 51, for the staging of the events contemplated herein. 452, The CITY expressly agrees that the Ticket Surcharge collected KP <. pursuant to this Agreement shall be deposited in a Restricted s�; jY 3 Zntturprise F%md and used by the CITY solely for improvements to the Y,4,q - R Prange lBoWl, , Stadium, other than structural repair work or 'Xr _,,, .?e4ipva it Aa, that are determined by the UNIVERSITY and approved by G�Y f The parties agree that such renovations and improvements 13 90— 370 tq 424 Agreement, and/or proceed at law or in equity to enforce any and 425 all of its rights under this Use Agreement. 426 3.7 World Cut) Sgccer Matches 427 In the event a World Cup Soccer match or matches are played 428 at the Orange Bowl Stadium pursuant to or in connection with that 429 certain Reservation Agreement dated July 29, 1987 by and between 430 World Cup USA 1994, Inc., and the CITY (the "Reservation 431 Agreement"), then for the months of May, June and July of 1994 the 432 rights granted pursuant to the Reservation Agreement shall control 433 and supersede the advertising rights _ranted to the UNIVERSITY 434 under this Use Agreement. In the evn it is necessary under the 435 Reservation Agreement to remov ocate any of the advertising 436 granted by the UNIVERSITY, t 1% Y, at its sole cost and expense, 437 shall perform such removal and/or relocation and shall cause such 438 advertising to be returned to its previous location in its previous 439 condition, immediately after the conclusion of the World Cup Soccer 440 match or matches. 441 4. RENOVATIONS: The CITY agrees to complete renovations 442 and improvements to the Orange Bowl Stadium as provided herein and 443 acknowledges that the foregoing is a material inducement to the 444 UNIVERSITY entering into this Use Agreement. Said renovations and 445 improvements shall include any and all structural repair work to 446 the Orange Bowl Stadium, which work shall be completed at the 447 CITY's expense prior to the 1991 football season. The CITY 448 warrants and represents that the Orange Bowl Stadium is and shall 449 remain throughout the term of this Agreement, including any option 450 periods if exercised, safe and structurally sound in all respects 451 for the staging of the events contemplated herein. 452 The CITY expressly agrees that the Ticket Surcharge collected 453 pursuant to this Agreement shall be deposited in a Restricted 454 Enterprise Fund and used by the CITY solely for improvements to the 455 Orange. Bowl. Stadium, other than structural repair work or 456 renovations, that are determined by the UNIVERSITY and approved by 457 the City Commission, which approval shall not be unreasonably 458 withheld. The parties agree that such renovations and improvements 13 90- 370 lq 459 shall include, but shall not be limited to, a new sound system, a 460 Hurricane Club entertainment room and expansion of the press box. 461 Any profits derived by CITY from the Orange Bowl Stadium, including 462 but not limited to use fees and concession payments, shall be used 463 to complete renovations and improvements to the Stadium as agreed 464 upon by the CITY, the UNIVERSITY and any other regular user of the 465 Stadium. For purposes of this paragraph, a "regular user" is an 466 entity with which the CITY has an agreepTnt to use the Stadium on 467 at least an annual basis for a period a least 5 years. In the 468 event of a dispute concerni type of improvements or 469 renovations to be done, oth n improvements or renovations 470 designated by the UNIVERSITY and funded by the Ticket Surcharge, 471 the CITY shall determine the improvements or renovations to be 472 undertaken. 473 5. TELEVISION BROADCASTS: In the event that a UNIVERSITY 474 football game is designated for telecast or, broadcast from the 475 Orange Bowl Stadium, the CITY agrees to abide by N.C.A.A. and any 476 other collegiate association's rules and regulations, if such 477 association has jurisdiction over the UNIVERSITY (e.g. C.F.A) and 478 federal regulations respecting the conduct of televised N.C.A.A. 479 games. All rights to the televised football games shall belong to 480 the UNIVERSITY. In the event of a conflict between such rules and 481 regulations and the terms of this Agreement, then such rules and 482 regulations shall govern to the extent of the conflict. 483 6. WATEE_AND ELECTRICAL POWER: The CITY shall furnish, at 484 its expense, all water and electrical power necessary for the use 485 and operation of the Orange Bowl Stadium and the Scoreboard(s) by 486 the UNIVERSITY pursuant to the terms of this Use Agreement. 487 II. UNIVER ITY HEREBY AGREES: 488 7. TERMS AND USE: UNIVERSITY shall have an affirmative 489 obligation and duty to utilize the Orange Bowl Stadium, owned and 490 operated by the CITY, for not less than sixty (60) home varsity 491 games over a period of ten (10) years, commencing at the time 492 provided below, and thirty (30) home varsity games during each 493 five-year renewal period, if the option(s) for a five-year renewal 14 90-- 370 494 period(s) are exercised. If the UNIVERSITY elects to furnish the 495 Scoreboards pursuant to Paragraph 3.1 and the Scoreboards are 496 installed at the beginning of the 1990 football season, the term 497 of this Agreement shall begin with the 1990 football season. If 498 the Scoreboards are not installed at the beginning of the 1990 499 football season, the term of this Agreement shall commence with the 500 1991 football season. 501 8. USE FEES AND TICKET SURCHARGE: UNIVERSITY shall pay the 502 CITY for the use of said Orange Bowl Stadium for each game, a use 503 fee (hereinafter 1110% Use Fee") equal to ten percent (10%) of the 504 total gross actual ticket sales revenu actually received by the 505 UNIVERSITY from such game, less n,?N�appIicable Federal or State 506 tax, and less the Ticket to the admission price. In no 507 event shall the use feesSIZ, be paid to the CITY be less than 508 $25,000 per game (hereinafter "Minimum Use Fee") as adjusted 509 yearly, beginning one year following the commencement of the term 510 of this Agreement, by an increase, if any, in the Consumer Price 511 Index ("CPI") over the CPI in effect in September, 1990. 512 Notwithstanding the foregoing, it is expressly agreed that the 513 Minimum Use Fee shall not increase by less than four percent (0) 514 nor more than six percent (6%) in any year. This Minimum Use Fee 515 shall be applied against the lot Use Fee and the UNIVERSITY shall 516 pay whichever amount is greater (hereinafter the "Use Fee"). In 517 addition to the above mentioned Use Fee, the UNIVERSITY agrees to 518 collect a Ticket Surcharge in the amount of one dollar ($1.00), to 519 be applied against each paid ticket for admission to all UNIVERSITY 520 home games held in the Orange Bowl Stadium. It is expressly agreed 521 that the amount of the Ticket Surcharge applicable to paid 522 admissions to UNIVERSITY home varsity football games during the 523 term of this Agreement shall not exceed one dollar ($1.00) per paid 524 ticket, notwithstanding any ordinance to the contrary. The 525 application of the Ticket Surcharge shall begin with the first 526 UNIVERSITY game at the Orange Bowl Stadium following commencement 527 of the term of this Agreement and continue through the basic ten 528 (10) year term of this Use Agreement and each of the two (2) five 15 90- 370 529 (5) year options, if exercised. Receipts from the Ticket Surcharge 530 collected from the UNIVERSITY games held at the Orange Bowl Stadium 531 shall be used by the CITY solely for improvements or renovations 532 to the orange Bowl Stadium, which improvements or renovations shall 533 be determined by the UNIVERSITY as provided in paragraph 4 of this 534 Agreement. Notwithstanding the foregoing, the Ticket Surcharge 535 applicable to any renewal period is subject to adjustment during 536 said renewal period, which adjustment sh 11 be mutually agreed upon 537 by the UNIVERSITY and the CITY prior encement of the renewal 538 period, provided that the rev o u�r m the Ticket Surcharge, as ���VVVSSS"�""" 539 adjusted, shall be used by Y solely to perform improvements 540 or renovations to the Orange Bowl Stadium during said renewal 541 period, which improvements and renovations have been approved by 542 the UNIVERSITY. 543 9. PONSIDE O : The Use Fee and the Ticket Surcharge 544 payable for each admission hereunder, except as otherwise set forth 545 herein, shall be the sole consideration payable by the UNIVERSITY 546 for its use of the Orange Bowl Stadium under this Use Agreement. 547 The Use Fee and Ticket Surcharge shall apply and be payable from 548 all admissions whatsoever excluding only: (i) student admissions 549 not in excess of a total of 7,200 such admissions for each game, 550 it being understood that such students will be admitted without 551 tickets, (ii) halftime entertainment including band memberships, 552 (111) complimentary tickets as permitted and limited by Paragraph 553 it hereunder, and (iv) those persons as permitted by Paragraph 18 554 hereunder. In no event shall the UNIVERSITY be obligated to 555 collect or pay a Ticket Surcharge on any of the Complimentary 556 Tickets regardless of the amount distributed. In the event the 557 UNIVERSITY, in its sole discretion, ever sells tickets to its 558 students, the Ticket Surcharge shall apply to such paid admissions. 559 If the CITY incurs any expenses for UNIVERSITY'S use of the Orange 560 Bowl Stadium on non -game days, CITY shall provide UNIVERSITY a 561 written estimate of such expenses prior to use and a written 562 statement of actual expenses at the conclusion of such use. 563 UNIVERSITY shall promptly remit to CITY the necessary payment along 16 90- 370 22 564 with any Use Fee due CITY in the manner prescribed in Paragraph 10 565 hereunder. 566 10. FAYMENT: The UNIVERSITY shall remit to the CITY the Use 567 Fee and Ticket Surcharge referred to in Paragraph 8 herein, and 568 any other sums due CITY, except the annual payments described in 569 paragraph 3.5, within thirty (30) days after each UNIVERSITY game 570 played in the Orange Bowl Stadium. Payment shall be by cash, 571 cashier's check or UNIVERSITY check made payable to the City of 572 Miami. Payments shall be made at the City of Miami Finance 573 Department, 3006 Aviation Avenue d-*�ami, Florida 33133 during 574 regular business hours on week s The CITY may designate other 575 locations for receipt of p n accordance with Paragraph 23.1 576 herein. The CITY may audit a UNIVERSITY'S ticket records to make 577 final settlement of Use Fees and Ticket Surcharges for said 578 football season upon reasonable advanced written notice anytime 579 during the term of this Use Agreement including any options if 580 exercised and for three (3) years thereafter. Late payments shall 581 accrue simple interest at the rate of 12% per annum from the date 582 they are due (or such other rate as is prescribed for judgments by 583 Section 55.03, Florida Statutes, as amended.) 584 il. COMPLIMENTARY TICKETS: The UNIVERSITY shall be 585 permitted to distribute up to seven hundred and fifty (750) 586 complimentary tickets per game for which no Use Fee or Ticket 587 Surcharge shall be charged. For all complimentary tickets in 588 excess of 750 per game, the UNIVERSITY shall pay the applicable Use 589 Fee referred in Paragraph 8 herein but, as stated above, the 590 UNIVERSITY shall not be required to pay any Ticket Surcharge on any 591 complimentary tickets regardless of the amount distributed. In 592 calculating the 10t Use Fee on complimentary tickets in excess of 593 750 per game, the admission price charged (Less applicable taxes 594 and Ticket Surcharge) for a paid admission to the seating area for 595 which each complimentary ticket was issued shall be used as the 596 value of the complimentary ticket throughout the original term of 597 this Use Agreement and any renewal period(s). 598 17 90- 370 El 0 599 12. SEATS. UNIVERSITY shall set aside, at no cost to the 600 CITY, twenty (20) seats each year to be used by the CITY at a 601 location mutually agreed upon each year by the UNIVERSITY and the 602 CITY. In the event that a seating area substantially similar to 603 the present CITY Box is constructed at the Orange Howl Stadium, it 604 is agreed and understood that the twenty (20) seats set aside for 605 the CITY hereunder shall be located in such new seating area. 606 III. 11 IS HEREBY MUTUALLY AGREED: 607 13. RECORDS AND AUDITS: The UNIVERSITY shall keep available 608 at its offices or such other place within Dade County, Florida 609 approved by the City Manager of t e tTY, true, accurate and 610 complete records and accounts o a ticket sales arising in 611 connection with the UNIVER ames on a per game basis, and 612 shall give access to the aut orized representatives of the CITY, 613 during reasonable business hours, to examine and audit such records 614 and accounts. The UNIVERSITY shall also maintain accurate and 615 complete records of all complimentary tickets distributed. Upon 616 execution of this Use Agreement, UNIVERSITY shall furnish a letter 617 to City Manager, or authorized designee, from an independent C.P.A. 618 licensed in Florida, which establishes that the UNIVERSITY'S 619 internal controls are adequate to safeguard its assets and properly 620 reconcile accounting transactions. This report will have to be 621 reissued or supplemented each time, if any, the UNIVERSITY 622 exercises a five (5) year option to renew this Use Agreement. The 623 City Manger reserves the right to audit the records of UNIVERSITY 624 any time during the term of this Use Agreement including any 625 options of exercised and for three (3) years thereafter. 626 14. ,SCHEDULE NOTIFICATION: The UNIVERSITY shall notify the 627 CITY, by furnishing to the City Manager a written schedule each 628 and every year on or before the first day of March of the dates on 629 which UNIVERSITY home varsity football games are to be played 630 during the following season. If the UNIVERSITY elects to 631 reschedule a home varsity football game after it has furnished the 632 City Manager with a written schedule of the dates on which 633 UNIVERSITY home varsity football games are to be played, the CITY `� 7 90- 370 634 hereby agrees to permit the game to be rescheduled upon receipt of 635 written notice from the UNIVERSITY to the City Manager, provided 636 that on the date that the City Manager receives said written 637 notice, the CITY has not executed a contract or use agreement 638 granting another party the use of the Orange Bowl Stadium on said 639 rescheduled date. The CITY shall have three (3) days from receipt 640 of written notice from the UNIVERSITY of its request to reschedule 641 the game to notify the UNIVERSITY wh hik the CITY has in fact 642 executer' a contract or use agreement�a ing another party the use 0 643 of the Grange Bowl Stadium o R scheduled date. If the CITY 644 fails to respond to the UNIV SITY'S request then it shall be 645 deemed that the game is rescheduled for said date. 646 15. PERSONNEL: 647 15.1 UNIVERSITY Responsibilities 648 The UNIVERSITY shall furnish, at its own expense, Ticket 649 Takers, Ticket Sellers, and Ushers as required to stage the 650 UNIVERSITY football games. The UNIVERSITY shall provide all of the 651 aforementioned personnel in sufficient numbers as is necessary 652 during the staging of the games authorized by this Use Agreement. 653 The personnel's function will be to handle seating and normal crowd 654 control. The UNIVERSITY shall have exclusive use of the southeast 655 ticket office (Gate 8) and small ticket room west of Gate 12 (or 656 equivalent space after the renovations contemplated in this Use 657 Agreement are completed) for administration of ticket sales and 658 personnel from 9:00 A.M. to 11:00 P.M. on days of UNIVERSITY 659 football games. 660 15.2 CITY Responsibilities 661 The CITY shall furnish, at .its own expense, the following: 662 (1) Parks, Recreation and Public Facilities Department 663 Employees routinely scheduled to work at the Orange 664 Bowl Stadium, 665 (2) All Working Field and Sideline Personnel, 666 (3) Electrician (one), 667 (4) Orange Bowl Stadium Assistants, 668 (5) Restroom Personnel (Janitorial & Attendance), 19 90- 370 0 669 (6) Communications Personnel, 670 (7) Groundstenders or Field Personnel., 671 (8) Security Guards, 672 (9) Plumber (one) , 673 (10) Air Conditioning Mechanic, 674 (11) Cleanup Personnel, 675 (12) Fire Marshals, 676 (13) Law Enforcement Officers, 677 (14) Fire Rescue Personnel and Facilities, 678 (15) Parking Lot Attendants, and 679 (16) Two Scoreboard Operators. 680 16. CONDEMNATION: 681 16.1 Complete or Substantial Taking 682 If at any time during the ter of this Use Agreement, title 683 to all or substantially all of 2e orange Bowl Stadium shall be 684 taken by condemnation or. y'\*ght of eminent domain, this Use 685 Agreement shall termina43 the date of such taking and all Use 686 Fee, Ticket Surcharge and advertising payments already made shall 687 be apportioned as of the date of the taking. For purposes of this 688 section, substantially all of the Orange Bowl Stadium shall be 689 deemed to have been taken if that portion of the Orange Bowl 690 Stadium not taken cannot be economically utilized by the UNIVERSITY 691 for those purposes permitted under the preamble to this Use 692 Agreement. 693 16.2 Partial Taking 694 In the event that title to less than all or substantially all 695 of the Orange Bowl Stadium is taken by condemnation or by right of 696 eminent domain, this Use Agreement shall not terminate, but the 697 parties agree to negotiate in good faith any reduction that may be 698 advisable with regard to the appropriate Minimum Use Fee, Ticket 699 Surcharge and the advertising payments referred to in Paragraph 700 3.5, if any, during the remainder of the term of this Use 701 Agreement. 702 16.3 General provisions 703 If there is a complete or substantial taking by right of 20 99- 370 704 eminent domain or a partials. taking by right of eminent domain, then 705 there shall be a division of the awards and proceeds of such 706 condemnation proceedings between the CITY and the UNIVERSITY as 707 shall be just and equitable under the circumstances and in 708 accordance with the eminent domain laws of the State of Florida. 709 It is agreed that, if the UNIVERSITY elected to deliver the 710 Scoreboards, the portion of the awards and proceeds to which the 711 UNIVERSITY shall be entitled shall. include, but shall not be 712 limited to, (i) the remaining principal balance due and owing on 713 the Scoreboards, or, if the purchase of the Scoreboards was not 714 financed, the value of the Scoreboards at the time of the taking, 715 based on the purchase price of the Sq4 reboards amortized over the 716 term of this Agreement, (ii) Sker ising revenue to which 717 UNIVERSITY would have been t� had the taking not occurred, 718 and (iii) sums the UNIV4 Y may be required to refund to 719 ADVERTISERS who have purchased advertising in the orange Bowl 720 Stadium. If the CITY and the UNIVERSITY are unable to agree upon 721 what division is just and equitable within thirty (30) days after 722 such award has been made, then the matters in dispute shall, by 723 appropriate proceedings, be submitted to the court having 724 jurisdiction over the subject matter of such a controversy in Dade 725 County, Florida, for its decision and adjudication of the matters 726 in dispute. Notwithstanding anything stated herein to the 727 contrary, the CITY or any instrumentality or agency thereof shall 728 not cause a complete, substantial or partial taking of the Orange 729 Bowl Stadium by condemnation or right of eminent domain. 730 17. MAINTENANCE OF STADIUM 731 17.1 Maintenance 732 CITY shall, at its own expense, maintain in good repair and 733 condition the Orange Bowl Stadium and grounds, including but not 734 limited to, all structural components, all interior and exterior 735 walls, roofs, stairs, seats, elevators, heating and air 736 conditioning equipment, stadium support structures, electrical 737 lines, plumbing fixtures and parking lots during the term of this 738 Use Agreement including any option period, if exercised. 21 90- 370 2:3 739 1.7.2 pestructon caf :stadium 740 If all or any portion of the Orange Bowl Stadium is damaged 741 by fire or any other casualty during the initial term of this Use 742 Agreement or during any option period to such an extent that, in 743 the reasonable opinion of either the CITY or UNIVERSITY, the orange 744 Bowl. Stadium is no longer usable by the UNIVERSITY for the purposes 745 contemplated herein, then either the CITY or the UNIVERSITY may, 746 at its sole election, terminate this Use Agreement, and all Use 747 Fee, Ticket Surcharge and advertising payments already made shall 748 be apportioned as of the date on which the damage occurred, and 749 both parties shall be relieved of all further obligations 750 hereunder. In the event this Agreement shall terminate 751 pursuant to this Paragraph 17 ,%en at the UNIVERSITY'S request e 752 and without any cost to, e. o, or payment by the UNIVERSITY, 753 the CITY shall detach aemove the Scoreboards from the Orange 754 Bowl Stadium and deliver the Scoreboards to the UNIVERSITY at a 755 mutually agreeable site together with a bill of sale executed by 756 the CITY in favor of the UNIVERSITY. Notwithstanding anything 757 contained herein to the contrary, if the UNIVERSITY can no longer 758 use the Orange Bowl Stadium for the purposes contemplated herein 759 because of such destruction, then neither the CITY nor the 760 UNIVERSITY shall have any obligation to repair, reconstruct or 761 replace all or any portion of the orange Bowl Stadium. 762 18. CONCESSION RIGHTS; DISCONTINUANCE OF BEER SALES: The 763 CITY shall control all concession rights of food, beverage 764 (alcoholic and nonalcoholic) and noncompetitive novelty concessions 765 which are not official UNIVERSITY novelties at all events staged 766 within the orange Bowl Stadium and on its grounds. Notwithstanding 767 the foregoing, the parties agree that the CITY shall consult with 768 the UNIVERSITY concerning selection of concessionaires) at the 769 orange Bowl Stadium and shall inform the UNIVERSITY prior to 770 requesting bids for a new concession contract or prior to renewal 771 of an existing concession contract, and shall give the UNIVERSITY 772 an opportunity to comment concerning same. UNIVERSITY shall retain 773 the right to sell football programs and any UNIVERSITY official 22 90- 370 r dt' 774 novelties at the Orange Bowl Stadium and on orange Bawl .Stadium 775 grounds during the day of the UNIVERSITY football game and be 776 allowed the use of the program room. If by a rule, regulation, law 777 or policy not promulgated by the CITY, the sale of beer is 778 discontinued at the Orange Bowl Stadium for any UNIVERSITY football 779 game, then for each such football game, the UNIVERSITY shall pay 780 the CITY a sum equivalent to the difference between the average per 781 capita concession sales, exclusive of sales and use taxes, for a 782 UNIVERSITY football game at which the sale of beer is allowed, 783 based upon amounts from all of the UNIVERSITY football games 784 occurring in the most recently preceding year in which the sale of 785 beer was allowed, less the per ca 'tkconcession sales, exclusive 786 of sales and use taxes, for th� rent UNIVERSITY football game 0 787 in which the sale of � disallowed, times (X) the total 788 attendance for the current UNIVERSITY football game. Attendance 789 shall be determined by Orange Bowl Stadium turnstile counts, as 790 verified by both UNIVERSITY and CITY. If this amount is negative, 791 UNIVERSITY shall not request a set-off or credit against other fees 792 paid. The CITY hereby acknowledges and agrees that at the present 793 time, beer is sold only during the first half of UNIVERSITY home 794 varsity football games and that beer shall not be sold following 795 the first half of UNIVERSITY home varsity football games during the 796 term of this Agreement including any option periods, if exercised. 797 190 ADMISSION: 798 19.1 UNIVERSITY Employees and Others 799 Employees and agents of the UNIVERSITY necessary to perform 800 the UNIVERSITY'S obligations under this Use Agreement, all players, 801 coaches and support personnel on the visiting football team, all 802 radio and television crews, and all working press personnel shall 803 be admitted free of charge, and not subject to the Use Fee or 604 Ticket Surcharge, into the grange Bowl Stadium prior to and during 805 the staging of these games. Employees and agents of the UNIVERSITY 806 include, but are not limited to, all players, coaches and support 807 personnel on the UNIVERSITY football team. 808 23 90 - 370 Y r_ 809 19.2 CITY Emolcyees and Others 810 Authorized CITY employees and Concessionaire employees shall. 811 have the right of ingress and egress to the Orange Bowl Stadium at 812 any time, except that during UNIVERSITY games held pursuant hereto, 813 only those employees who are actually performing services at that 814 time and who have assigned identification shall be admitted to the 815 Orange Bowl Stadium without payment of regular admission charges, 816 and no UNIVERSITY or CITY employees not actually performing 817 services shall be admitted without admission tickets. A list of 818 such working personnel shall be supplied to the UNIVERSITY two 819 hours before games. 820 20. AALIFRATIONS: The UNIVERSITY shall make no additions, 821 partitions, improvements or alterations to the physical structure 822 of the Orange Bowl Stadium or any a�thereof without first having 823 obtained the written consent o e h City Manager, or designee. All 824 requests shall be in rng and shall include plans and 825 specifications pertaining thereto, and shall be subject to the 826 further review, approval, and issuance of permits by all requisite 827 CITY officials and other public authorities with jurisdiction. All - 828 alterations, improvements, additions or partitions made or = 829 installed by the UNIVERSITY, as described above, shall become the 830 property of the CITY at the conclusion of this Use Agreement, or, - 831 the modified area, structure or portion shall be returned to its 832 original state, at the option of the UNIVERSITY. All such 833 alterations, improvements, additions or partitions as set forth 834 herein shall be made at the UNIVERSITY.'S sole cost and expense. 835 21. PARKING: 836 21.1 Complimentary 'asses 837 The UNIVERSITY (inclusive of all faculty, staff, students, 838 guests, patrons, invitees, media representatives, and licensees and 839 all other persons entering by virtue of the UNIVERSITY) shall be 840 afforded up to a maximum number of one hundred (100) complimentary 841 automobile season parking passes each season, within the Orange 842 Bowl Stadium at such area(s) as are agreed upon by the UNIVERSITY -- 843 and CITY for each game. 24 90- 370 30 844 21.2 Season'arking Passes 845 During the term of this Use Agreement, the UNIVERSITY shall 846 have the option each year to purchase a portion of the season 847 parking passes at the Orange Bowl Stadium reserved parking areas. 848 at the price of Forty Dollars ($40.00) per season parking pass. 849 The parties agree that for the 1991 football season the UNIVERSITY 850 shall have the option to purchase 2000 season parking passes. The 851 number of season parking passes which UNIVERSITY may elect to 852 purchase shall increase by twenty percent (20%) each year during 853 the term of this Agreement until such time as UNIVERSITY shall have 854 the option to purchase 3,400 season parking passes at the Orange 855 Howl Stadium reserved parking areas. N ing herein shall require 856 the UNIVERSITY to purchase all off, t� ason parking passes to 857 which it is entitled. All to;N*-'parking passes purchased by 858 UNIVERSITY pursuant to therms hereof shall apply to parking 859 spaces within 700 feet of the exterior wall currently surrounding 860 the Orange Bowl Stadium. The season parking passes allow parking 861 on the scheduled date of all UNIVERSITY home varsity football games 862 during a particular year. If any such option is exercised, the 863 UNIVERSITY must provide written notice to the City Manager of its 864 intent to do so by the first day of January of the year for which 865 it intends to purchase the season parking passes. The UNIVERSITY 866 shall remit the total purchase price not later than June 30th of 867 the year for which the season parking passes are being purchased. 868 Notwithstanding the UNIVERSITY'S exercise of any of the above 869 granted options, the CITY shall remain responsible at all times for 870 maintenance, security and all other obligations and duties 871 associated with the reserved parking areas as if the 'UNIVERSITY had 872 not exercised such option. The CITY shall, at its own expense, 873 provide four law enforcement officers to handle parking and normal 874 crowd control in the reserved parking areas. If additional law 875 enforcement officers are required in the reserved parking areas 876 because of events or activities occurring therein that are 877 sponsored by the UNIVERSITY, then UNIVERSITY shall (i) provide CITY 878 with at least forty-eight (48) hours advance notice of any such PU 90" 370 31 879 event or activity so that CITY mad- provide additional law 880 enforcement officers, and (ii) pay any costs associated with the 881 additional law enforcement officers. 882 22. rLOSED CIRCUIT PAY TELEVISION: It is understooa rnar- Lne 883 UNIVERSITY has no agreement or contractual commitment with any 884 person, firm or corporation regarding closed circuit pay 885 television. If, however, at any time during the term of this Use 886 Agreement, the UNIVERSITY shall enter into such a television 887 contract and become entitled to receive revenue as a result of the 888 telecast of the UNIVERSITY football games within a radius of 150 889 miles of the site of the said game, then the UNIVERSITY shall be 890 obligated to pay the CITY a portion of its closed circuit pay 891 television revenue to replace the C,;Tgq monetary loss of Use Fees, 892 if any, due to such telecast. d \Amount, it any, snail De Aasea 0 893 upon the following formu a paid attendance of the three (3) 894 most recent UNIVERSITY gam s prior to the telecast game shall be 895 averaged. Said attendance average shall be multiplied by the 896 average ticket revenue per person actually received by the 897 UNIVERSITY for the three (3) most recent UNIVERSITY games prior to 898 the telecast game less any applicable Federal or State tax and the 899 Ticket Surcharge. The resultant figure shall be multiplied by ten 900 (10%) percent. The attendance average shall also be multiplied by 901 the applicable Ticket Surcharge. The sum of these figures shall 902 be the estimate of revenue for the telecast game. The revenue 903 actually received by the CITY for the telecast game will be 904 subtracted from the estimate of revenue for the telecast game (as 905 computed using the above formula) to arrive at the additional 906 monies owed to the CITY by the UNIVERSITY, if any, and said amount 907 shall be payable in the manner as prescribed by Paragraph 3.0 908 herein. An amendment shall be promptly negotiated by the parties 909 to effectuate this provision, at such time as the foregoing events 910 occur. 911 23. GENERAL CONDITIONS: 912 23.1 Ngtices 913 All notices or other communications which shall or may be 26 90 - 370 914 given pursuant to this Use Agreement shall he in writing and shall. 915 be delivered by personal service, or by registered mail addressed 916 to the other party at the address indicated herein or as same may 917 be changed from time to time. Such notice shall be deemed given 918 on the day on which personally served; or if by mail, on the fifth 919 day after being posted or the date of actual receipt, whichever is 920 earlier. 921 922 UNIVERSITY: University of Miami Athletic Department 923 Attn: Director 924 1 Hurricane Drive/P.O. 248167 925 Coral Gables, Florida 33124 926 927 and Assistant 'c President 928 for Busin cervices 929 Max Oro z uilding 930 931 1507 e C tiles, Florida 33124 932 933 CITY: Cit Manager 934 3500 Pan American Drive 935 P.O. Box 330708 936 Miami, Florida 33133 937 938 and Director, Department of Pares, Recreation 939 Public Facilities 940 1390 N.W. 7th Street 941 Miami, Florida 33125 942 943 23.2 Conflict in Terms 944 In the event of conflict between the terms of this Use 945 Agreement and any terms or conditions contained in any attached 946 documents, the terms in this Use Agreement shall prevail. 947 23.3 Severability 948 Should any provisions, paragraphs, sentences, words or phrases 949 contained in this Use Agreement be determined by a court of 950 competent jurisdiction to be invalid, illegal or otherwise 951 unenforceable under the laws of the State of Florida or of the 952 CITY, such provisions, paragraphs, sentences, words or phrases 953 shall be deemed modified to the extent necessary in order to 954 conform with such laws, or if not modifiable to conform with such 955 laws, then same shall be deemed severable, and in either event, the 956 remaining terms and provisions of this Use Agreement shall remain 957 unmodified and in full force and effect. 958 23.4 Vey 959 'Venue in any legal or administrative proceedings (or mutually 27 90- 370 9-1 960 agreed upon arbitration proceedings) shall be in courts end/or 961 before administrative tribunals and/or before arbitrators located 962 in Dade County, Florida. 963 23.5 Arrbitrat on 964 The parties may (but shall be under no obligation to do so) 965 agree, in writing, to submit any controversy existing between them 966 to arbitration in which event the practice and procedure set forth 967 in the Florida Arbitration Code, Chapter 682, Florida Statutes, as 968 amended, shall govern. 969 24. DEFAULT: In the event either party defaults in the 970 performance of any of the provisions of this Use Agreement, the 971 non -defaulting party shall have the following options, and its 972 choice of any option shall in no way ive its right to select any 973 other option at any time. The n�de aulting party or designee 974 shall give the defaulting yitten notice of such default. 975 If the defaulting party d not substantially cure said default 976 within thirty (30) days, in the event of a nonmonetary default, and 977 within seven (7) days, in the event of a monetary default, after 978 written notice was given, or make reasonable progress to cure said 979 default, the non -defaulting party may terminate this Use Agreement, 980 upon the giving of one additional thirty (30) day notice at the end 981 of which the termination will be automatic. Notwithstanding 982 anything stated above to the contrary, if the CITY is the 983 defaulting party, and the orange Bowl Stadium cannot be 984 economically utilized by the UNIVERSITY for any of the purposes 985 permitted under this Use Agreement, including but not limited to, 986 the UNIVERSITY'S scheduled game(s), the UNIVERSITY shall have the 987 immediate right, but not the obligation, to terminate this Use 988 Agreement upon the giving of written notice, at which time the 989 termination will be automatic, and/or proceed at law or in equity 990 to enforce any and all of its rights and/or remedies under this Use 991 Agreement. It is expressly agreed that in the event of termination 992 of this Agreement due to the CITY's default, the UNIVERSIT'Y's 993 damages shall include, but shall not be limited to, the remaining 994 principle balance or the value of the Scoreboards at the time of 4.11 90_ 370 995 the default, advertising revenue to which the UNIVERSITY would 996 otherwise have been entitled, and any sums the UNIVERSITY may be 997 required to refund to Advertisers. 998 In the event that the UNIVERSITY is the defaulting party, the 999 UNIVERSITY'S obligation to pay the Use Fees specified herein will 1000 survive any default and termination of this Use Agreement. The 1001 UNIVERSITY shall remain liable to CITY for the payment of such 1002 Minimum Use Fees for the term of This Use Agreement until 1003 discharged by payment, providing, h<,1,1,1ev* that the CITY shall use 1004 reasonable efforts to re -let h�range Bowl Stadium and fees O 1005 received shall be an offsetlt st the UNIVERSITY payments. 1006 The provisions of this Paragraph shall not be deemed a limit 1007 upon either of the parties' remedies at law or in equity. 1008 25. INSURANCE: 1009 1010 [To Be Determined] 1011 1012 26. NON-DELEGABILITY: The obligations undertaken by 1013 UNIVERSITY pursuant to this Use Agreement shall not be delegated 1014 or assigned to any other person or firm unless the City Manager 1015 shall first consent in writing to the performance or assignment of 1016 such services or any part thereof by another person or firm and 1017 such consent may not be unreasonably denied. 1018 27. ASSIGNMENT OR TRANSFER: The UNIVERSITY shall not sublet, 1019 transfer, convey, assign nor permit the use of the rights, 1020 privileges or premises granted under this Use Agreement in whole 1021 or in part to any other person, firm or corporation without written 1022 consent of the City Manager or designee which consent may not be 1023 unreasonably denied. Any assignment which may be approved by the 1024 City Manager will require that the assignee execute such assumption 1025 agreement and other instruments satisfactory to the City Attorney. 1026 28. SUCCESSORS AND ASSIGNS: This Use Agreement shall be 1027 binding upon the parties herein, their heirs, executors, legal 1028 representatives, successors, and authorized assigns. 1029 29 90 - 370 AO 1030 29 . APPLICABILITY : CITY acknowledges and agrees that City of 1031 Miami Code $2-363 and S$18-67 through 15-77 are not applicable to 1032 this Use Agreement or the UNIVERSITY nor will the CITY enact any 1033 similar ordinance or rule to affect this Use Agreement. 1034 30. NON-pISCRIMINATION: UNIVERSITY agrees that it shall not 1035 discriminate as to race, sex, color, creed., national origin or 1036 handicap in connection with its performance under this Use 1037 .Agreement. 1038 31. INDEPENDENT CONTRACTOR: UNIVERSITY and its employees and 1039 agents shall be deemed to be indepe nt contractors, and not 1040 agents or employees of CITY, and shl of attain any rights or 1041 benefits under the Civil Servi q ouension Ordinances of the City 1042 or any rights generally 4 ded classified or unclassified 1043 employees; further, UNIVERSITY, its employees and agents shall not 1044 be deemed entitled to Florida Worker's Compensation benefits as an 1045 employee of the CITY. 1046 32. gONFGICT OF INTEREST: UNIVERSITY covenants that no 1047 person under its employ who presently exercises any functions or 1048 responsibilities in connection with this Use Agreement has any 1049 personal financial interests, direct or indirect, with CITY. 1050 UNIVERSITY further covenants that, in the performance of this Use 1051 Agreement, no person having such conflicting interest shall be 1052 employed. Any such interests on the part of UNIVERSITY or its 1053 employees, must be disclosed in writing to CITY. UNIVERSITY is 1054 aware of the conflict of interest laws of CITY (Miami. City Code 1055 Chapter 2, Article V), Dade County, Florida (Dade County Code 1056 Section 2-11.1) and the State of Florida, and agrees that it will 1057 fully comply in all respects with the terms of said laws. 1058 33. AWARD OF AGREEMENT: UNIVERSITY warrants that it has not 1059 employed or retained any person employed by CITY to solicit or 1060 secure this Use Agreement and that it has not offered to pay, paid, 1061 or agreed to pay any person employed by CITY and fee, commission, 1062 percentage, brokerage fee, or gift of any kind contingent upon or 1063 resulting from the award of this Use Agreement. 1064 30 90 - 370 1065 34r COPYRIGHT CLAIMS. The UNIVERSITY agrees that it :-hall 1066 not perform any copyrighted material during any UNIVERSITY football 1067 game played in the Orange Bowl Stadium without the authorization 1068 of the copyright owner, its representative, or licensee. 1069 35. ASSURANCES NQ_C_RTIFICATIONS: UNIVERSITY assures and 1070 certifies that UNIVERSITY possesses legal authority to enter into 1071 this Use Agreement; a resolution, motion, or similar action has 1072 been duly adopted or passed as an official act of UNIVERSITY'S 1073 governing body, authorizing the execution of this Use Agreement, 1074 including all understandings and assur ces contained herein, and 1075 directing and authorizing the pers�i ratified as the official 1076 representative of UNIVERSITY t a connection with UNIVERSITY 1077 and to provide such additio i ormation as required. A copy of 1078 such resolution, motion or of er transcribed action is attached 1079 hereto as Exhibit "S" and made a part hereof. The CITY assures and 1080 certifies that CITY possesses legal authority to enter into this 1081 Use Agreement and that the person executing this Use Agreement on 1082 behalf of the CITY has the legal authority to do so and to bind 1083 the CITY to the terms and provisions of this Use Agreement. 1084 36. AST IVE: Except those provisions reserved for CITY or 1085 UNIVERSITY, no waiver of any provision hereof shall be deemed to 1086 have been made unless such waiver be in writing signed by both 1087 parties. The failure of either party to insist upon the strict 1088 performance of any of the provisions or conditions of this Use 1089 Agreement shall not be construed as waiving or relinquishing in the 1090 future any such covenants or conditions but the same shall continue 1091 and remain in full force and effect. 1092 37. JURY TRIAL WAIVER: To the extent allowed by law, the 1093 parties expressly waive their right to a jury trial on any claim 1094 brought against the other which arises by virtue of this Use 1095 Agreement. 1096 38. CQNSTRUCT70N OF AGREEMENT: This Use Agreement shall 1097 be construed and enforced according to the laws of the State of 1098 Florida. The parties to this Use Agreement have participated fully 1099 in the negotiation and preparation hereof; accordingly, this 31 90- 370 1.100 1101 1102 1103 1104 1105 1106 1107 1108 1109 Foowla 1113 1114 1115 1116 1117 1118 2119 1120 1121 1122 1123 1124 1125 1126 1127 1128 1129 1130 1131 1132 1133 1134 1135 1136 1137 1138 1139 1140 1141 1142 1143 Agreement shall not be more strictly constlrt.ied against any one of the parties hereto. 39. COMPLIANCE WITH Fg ERAL, ST�FTE AND LOCAL LAWS: Both parties shall comply with all applicable laws, ordinances and codes of Federal, State and Local Governments. 40. 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 party to the other as of its date. Any prior agreements, promises, negotiations, or representations�t expressly set forth in this Use Agreement are of no fo r effect. 39. HEADINGS: The gs of the sections and subsections �U of this Agreement are c nvenience and reference only and shall not be considered a part hereof nor shall they be deemed to limit or otherwise affect any of the terms or provisions hereof. 41. AMENDMENTS: No amendments to this Use Agreement shall be binding on either party unless in writing and signed by both parties. IN WITNESS WHEREOF, the parties hereto have individually and through their proper corporate officials executed this Use Agreement the day and year first written. ATTEST: City Clerk ATTEST: THE CITY OF MIAMI, a municipal. corporation of the State of Florida Cesar H. Odio City Manager UNIVERSITY: University of Miami, a Not -for -Profit Florida Corporation By: Corporate Secretary David A. Lieberman Vice President for Business Services 32 00- 370 I El 1.144 1145 1146 1147 1148 1149 1150 1151 1152 1153 1154 1155 1156 1157 1158 1159 1160 1161 1162 1163 1164 1165 1166 1167 1168 1169 1170 1171 1172 1173 1174 1175 1176 WIness -- - Witness APPROVED AS TO DEPARTMENTAL REQUIREMENTS: o Tony Pajares, Executive Dil'4ctor Department of Conferences and Conventions APPROVED AS TO INSURANCE REQUIREMENTS: Segundo Perez Insurance Manager Law Department 5/17/90 o4.jf 33 By: Sam Jankovich Director, Intercollegiate Athletics ( SEAL) APPROVED AS TO LEGAL FORM AND CORRECTNESS: Jorge L. Fernandez City Attorney 90-- 370 0 URILRILT-A EXISTING AGREEMENTS 9o- 370 AJE)I IKSJ_ 3(_G_ii,l_G t1T_S_ L1G iiJE_U1 E_N_ THIS AGREEMENT is entered into by and between ANHEUSER-BUSCII, INC., a for profit Missouri corporation, with offices located at 1 Busch Place St., St. Louis, Missouri, 63118, (314) 577-2000 ("ADVERTISER"), and the CITY of Miami ("CITY"), for advertising rights at Lite Miami Orange Bowl Stadium, a sports facility owned and operated by CITY and located in Miami, Florida (the "Stadium"). WITNESSETH WHEREAS, CITY owns the Stadium and hereby represents and warrants that it has Lite exclusive right to sell and lease advertising space in the Stadium; and WHEREAS, CITY has represented that no later than five days after execution of this Agreement one 4' x 16' panel may be { erected at the location on the fascia of the upper deck of the west side of the Stadium. ("Panel"),, and W➢iEREAS, ADVERTISER, desires to display certain advertising materials on the Panel, and CITY desires to grant such rights to ADVERTISER; NOW THEREFORE, in consideration of the premises and mutual covenants and agreements contained herein, the sufficiency of which are hereby.acknowledged, the parties hereby agfee as follows: I. Grad Qf_AdvertisinQ Right . CITY warrants that it has the right to grant, and it hereby grants to ADVERTISER, throughout the term of this Agreement and any extensions or renewals hereof, the right to display advertising materials on the Panel. Except as provided in Paragraph 8 CITY shall not permit itself (or others besides ADVERTISER) to use the panel. r 4•�.. ,04m.• . c. (a) CITY represents and warrants that during the Agreement term no other malt beverage advertising besides ADVERTISER'S shall appear in or on the west upper deck facia of the Stadium. This shall not, however, limit advertising in or on the north or south areas, or preclude advertising by other than melt beverage entities in or on the west upper deck except as provided below, or limit the sale or display for sale of any products (including malt beverage products) at concession stands or by vendors at or around,the Stadium (even i.n the west upper deck), or Lite advertising of other products (including malt beverage products) in printed materials distributed in and around the stadium (such as programs), (b) ADVERTISER, will obtain and maintain all necessary permits and approvals for the installation and display of the Panel and ADVERTISER'S signage thereon. (c) CITY warrants that it does not now have, nor will It obtain during the term of this agreement, any interest-, direct or indirect, financial or otherwise, in any license to sell alcoholic beverages. (d) CITY shall provide liaison personnel satisfactory to ADVERTISER, to consult with ADVERTISER, in connection with the advertising rights granted herein throughout Lite h9 reement term. 90- 370 ap; r ►[fib (e) CITY warranty that the University of fliaml. will play all of Lheir men's varsity home football games in the Stadium each contract year of the Agreement, and that the Orange Bowl Classic men's 14CAA Division I football bowl game will be held in the Stadium each contract year,of this Agreement. 3. 8dverti�i`ng CoDY• In,t,Qn end Mf�k�nt���• (a) The painting of the panel (not installation), the design, layout and content of all advertising copy for use on the Panel during the Agreement term shall be provided by ADVERTISER, subject to CITY's approval, which approval shall not be unreasonably withheld or delayed. The use by ADVERTISER, of similar copy in other sports facilities in the United States shall be the primary standard for establishing reasonableness. Such copy may, at ADVERTISER'S option, be changed at any time (and from time to time); provided that the specifications for such changes shall have been approved in advance by CITY and all painting costs incident thereto are to be borne by ADVERTISER. In the event CITY intends to withhold its approval of any copy submitted by ADVERTISER, It shall notify ADVERTISER, within ten days of its receipt of such copy, or said copy shall be deemed to have been irrevocably approved. (b) Construction of the supporting structures for the Panel and the installation of the Panel shall be at the expense of and shall be -the sole responsibility of CITY. CITY shall insure that workers hired by ADVERTISER, can ( mnximum of twice per year ) have access to the Panel to permit the painting anti repainting of ADVERTISER'S copy thereon upon Len days prior notice to CITY (or such shorter time as may be agreed to by the parties). (c) CITY 'warrents that the Panel will be installed at all events at the Stadium throughout the term of this Agreement. CITY also warrants that the supporting structure for the Panel shall be properly maintained (and if damaged, promptly rebuilt), to permit the proper display of ADVERTISER'S copy on the Panel. CITY shall, at its expense, maintain and protect copy on the Panel (normal wear and tear excepted), and if it is damaged, destroyed, or removed, CITY shall promptly pay the cost of replacing or repairing it (subject to ADVERTISER'S reasonable instruction). (d) At CITY's expense, CITY shall cause ADVERTISER'S copy on the Panel to be properly illuminated during all events except religious, political or youth oriented special events at the Stadium throughout the term of this Agreement. Proper illumination shall not require separate lighting for Lite Panel, but shall require that the Panel not be lit less brightly than the upper deck during any such event. (e) CITY shall not interfere, nor shall it permit others to interfere, with ADVERTISER'S use and enjoyment of the Panel during the term of this Agreement. In this regard, CITY covenants that the Panel shall not during the Agreement period be disturbed by any paramount claim or obstruction of directions from any televising authority, and the CI'rY wiii at Its own expense do all things necessary and/or convenient to protect ADVERTISER from such matters. _2-- 4 .1 370 -12 4. Term QL_,8,ae�mt�k�E'ayJnatti<:—Q�t�on_t�o tienew_. (a) This Agreement shall. commence on December 30, 1987 (the "Commencement Date"). It shall terminate three years later unless terminated earlier as provided below (the "initia). term"). Each one year period between anniversary dates of. this Agreement may hereinafter be referred to as a "contract year". (b) For the rights granted to ADVERTISER hereunder, during the initial term, ADVERTISER, shall pay CITY Forty Five Thousand Dollars ($45,000) (the "ConLrncL Price"), which amount shall be payable as follows: Fifteen Thousand Dollars ($15,000) within Len days after the Commencement• Date; Fifteen Thousand Dollars ($15,000) on or before January 1, 1909; and Fifteen Thousand Dollars (.$15,000) on or before January 1, 1990. Payments by ADVERTISER hereunder shall be deemed to include all applicable taxes, duties and other charges. (c) ADVERTISER, has the option, but no obligation, to renew this. Agreement upon the some terms and conditions as provided herein, including Lite Contract Price, for one additional period of three years (with payments due by January 1 of 1991, 1992 and 1993) by giving CITY notice in writing of its intention to do so at least one hundred twenty (120) days prior to the last day of Lite initial term. No, purpoirted renewal shall bind ADVERTISER, unless agreed to in writing by a corporate officer of ADVERTISER. If ADVERTISER does not exercise its option to renew, CITY may grant the advertising rights similar to that granted hereunder to any other party upon the expiration of this AgreemenL, but during the three year renewal period not upon terms snore favorable than those offered to ADVERTISER without providing ADVERTISER a twenty day right of first refusal with respect to any such more favorable terms. 5. • Default. A party shall be deemed to be in default hereunder if: (a) It fails to perform or observe any terns of the Agreement and such failure has not been completely.cured within thirty days after the party received written notice thereof from the other party; (b) It is insolvent (either unable to pay its debts when due or has a negative net worth), or makes a general assignment for the benefit of creditors; is adjudicated bankrupt; files a voluntary petition in bankruptcy or for reorganization, or to effect a plan or other similar arrangement with creditors; files an answer to a creditor's petition or to another similar petition filed against it, admitting Lite material allegations thereof; applies for or permits the appointment of a receiver or trustee or custodian for any of its property or assets; or a receiver, trustee or custodian is appointed for any of.its property or assets and such receiver, trustee or custodian so appointed is not discharged within sixty days after Lite date of his appointment; or an order is entered and not dismis,ed or stayed within sixty days from its entry, approving any petition for reorganization of the party. 6. 1gimj,n_LW11. Upon a default as defined in Parayraph 5, the non -defaulting party may at its option elect to terminate this Agreement by serving written notice on tine Wier party of its intention to do so. In Lite event of such a. termination, (without prejudice to any other remedies under law -3- 90 - 370 lip or equity) and also in those cases specified in Faragraph 7, CITY shall immediately refund to ADVERTISER a prorated portion of the Contract Price, The proration shall be based on lour Thousand Dollars ($4,000) for each University of Miami men's NCAA Division I football game missed in that contract year up to a maximum refund for games missed in any contract year. (not including any refund on accotint of a missed Orange Fowl as seL- forth below) and four Thousand Dollars ($4,000) for each Orange Bowl men's NCAA Division I football game missed in that contract year. Thus, if six University of Miami games are played and no Orange Bowl, the refund is $4,000. The termination of this Agreement and the payment or accepL•ance of any refund shall not relieve either party of any rights or liabilities accrued through date of termination. 7. ;foreseen Events. (a) If (i) any law, regulation, ordinance or ruling becomes effective which makes advertising of malt beverage products unlawful as contemplated by this Agreement, or requires a modification of the advertising copy that in the reasonable opinion of ADVERTISER materially reduces the value of this Agreement, or (ii) if for any reason the Stadium is not used for at least four University of Miami NCAA Division I men's .football gamer, or is not used in any December 29 - January 3 period for an NCAA Division I Orange Bowl men's football game, then the Agreement may be terminated by ADVERTISER. Such termination shall entitle ADVERTISER to a pro rate refund as provided in Paragraph 6 above. (b) The delay, interruption, or diminution of the performance of this Agreement from power blackout, war, state or national emergency, act of God, strike, work stoppage, picketing, damage or concerted action by any employee or any labor organization, shall not constitute a ground for termination; provided, however, that should such a delay result in ADVERTISER being unable to advertise its product as specified herein at least four University of Miami NCAA Division I Men's home football games in any contract year or at - any Orange Bowl in any December 29,- January 3 period, ADVERTISER shall be entitled to the pro rate refund provided in Paragraph 6. 8. ,A"i nmenta. Neither party may assign any of its rights or obligations under this Agreement without the consent of the other; provided that ADVERTISER may make an assignment to any division or any subsidiary of its parent Anheuser-Busch Companies, Inc. In the event such an assignment does occur, such assignment shall not relieve the assignor from its liabilities or obligations hereunder. Any assignmenL inconsistent with this provision shall be void. 9. Indemnification. (a) CITY will indemnify and hold harmless ADVERTISER, its parent, subsidiary and affiliated corporations, and their respective directors, officers, employees and agents, from and against any and all claims, costs, liabilities, losses, damages, injuries, demands, actions, causes of action, suits, proceedings, judgments and expenses, including, i-iiL-hout limitation, attorneys' fees, court costs anti other legal expenses, arising out of or resulting from the City's willful or negligent failure to install or maintain the Panel as required by this Agreement, subject to the provisions of Section 768.28, Florida Statutes. -4- 90-- 370 im (b) ADVERTISER shall indemnify and hold harmless CITY from and against any and all claims, costs, liabilities, losses, damages, injuries, demands, actions, causes of action, suits, proceedings, judgments and expenses, including, without limitation, attorneys' fees, court costs and other legal expenses, arising out of the contents of the Advertising Copy. (e) Each party shall give Lite other party prompt- notice of any claim or suit coming within the purview of these indemnities. Upon the written request of an indemnitee, the indemnitor will assume Lite defense of any claim, demand or action against- such indemnitee and will permit the indemnitee, at its expense, to participate in the defense thereof. Settlement by the indemnitee without the indemnitor's prior written consent shall release Lite indemnitor from the indemnity as to the claim, demand or action so settled. Termination of this Agreement shall not affect the continuing obligations of each of the parties as indemnitors hereunder. 10. JnAUjr_nC@. CITY hereby certifies that City is self insured with sufficient funds to insure it against any and all los§ for property damage and personal injury (including death), and contractual liability assumed under Section 10 of this Agreemetnt. CITY shall provide ADVERTISER, on or before the execution of this Agreement with a certificate evidencing the foregoing. In the event CITY does not strictly adhere to the foregoing obligations, ADVERTISER may either construe such failure to be a material default or obtain insurance on behalf of CITY and charge CITY the cost thereof. Advertiser shall require any agent of Advertiser providing maintenance services on Elie Advertising Copy to maintain insurance with customary coverages and naming the City as an additional insured. 1 s t 1 (a) CITY represents, warrants and covenants to ADVERTISER as follows: (i) It has Elie full right and legal authority to enter into and fully perform this Agreement in accordance with its terms. (ii) It has the exclusive right to sell advertising for the Stadium. (M) This Agreement when executed and delivered by CITY, will be its legal, valid and binding obligation enforceable against CITY in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors` rights generally. (iv) The execution and delivery of this Agreement has been duly authorized by CITY, and such execution and delivery and the performance by CITY of its obligations hereunder, do not and will not violate or cause a breach of any other agreements or obligations to which it is a party or by which it is bound, and no approval or other action by any governinental authority or agency is required in connection herewith, (v) CITY is not a retailer of alcoholic beverages at the Stadium or elsewhere and lies no ownership interest in any alcoholic beverage retail license at the Stadium or p1sewhere. I&M 90- 370 —1-- (vi) No monies paid by ADVERTISER for the advertising purchased under this Agreement are intended to be or will be passed on by City to any alcoholic beverage retail licensee as an inducement to any such retailer to pure hasp any alcoholic -- - beverage produced, sold or offered for sale by.ADVERTISER. (vii) There is no agreement or understanding between ADVERTISER and City that, as consideration for. AI)VERTISER's purchase of advertising under this Agreement, City will requite any alcoholic beverage retail licensee to purchase any alcoholic beverage produced, sold or offered for sale by ADVERTISER. (viii) The advertising purchased under this Agreement is being purchased by ADVERTISER at a rate no higher than that at which such advertising is available to other advertisers. (ix) Each of the foregoing representations, warranties, and covenants shall be true at all times during the term hereof. City acknowledges that each of such representations, warranties and covenants are deemed to be material and have been relied upon by ADVERTISER notwithstanding any investigation made by ADVERTISER. (b)' ADVERTISER represents, warrants and covenants to CITY as fotlows: (i) It has the full right and legal authority to enter into and fully perform this Agreement in accordance with its terms. (ii) This Agreement when executed and delivered by ADVERTISER, will be its legal, valid and binding obligation enforceable against ADVERTISER in accordance with its terms, except to the extent that enforcement thereof may be limiter] by bankruptcy, insolvency or other similar laws affecting creditors' rights generally. (iii) The execution and delivery of this Agreement has been duly authorized by ADVERTISER, and such execution and delivery and the performance by ADVERTISER of its obligations hereunder, do not and will not violate or cause a breach of any other agreements or obligations to which it is a party or by which it is bound, and no approval or other action by any governmental authority or agency is required in connection herewith. (iv) This Agreement is entered into solely for the purchase of advertising as described herein and for no other purposes. (v) ADVERTISER's purchase of advertising under 'this Agreement is in no way conditioned on any agreement or understanding that CITY will require any alcoholic beverage retail licensee to purchase any alcoholic -beverage produced, sold or offered for sale by Advertiser. (vi) By the purchase of advertising under this Agreement, Advertiser does not agree, expect, or intend Lo induce the purchase by or through CITY or any alcoholic beverage retail licensee of any alcoholic beverage proOticed, sold or offered for sale by Advertiser. (vii) Advertiser has no agreement with any alcoholic beverage retail licensee related to or respecting this Agreement. -G- 90- 370 � U 0 ♦. 12• kt�JLt�tsznbhi�P U:11e._p��e Clothing contained herein or done pursuant hereto shall be construed to create any relationship of principal and agent, or employer and employee, between ADVERTISER and CITY, or to make them joint venturers. 13. Iteadinc1_a. Headings are supplied for convenience only and are not to be construed as an interpretation of any language of this Agreement. 14. �lai[Lt�na AQo k��13e_�o rs For, a period or at least two (2) years following the termination of this Agreement, CITY shall maintain such books and records (collectively, "Records") as are necessary to substantiate that (i) all invoices and other charges submitted to ADVERTISER for payment hereunder were valid and proper, and (ii) no payments have been made, directly or indirectly, by or on behalf of CITY to or for the benefit of any ADVERTISER employee or agent who may reasonably be expected to influence ADVERTISER's decision to enter into this Agreement, or the amount to be paid by ADVERTISER pursuant hereto. (As used herein, "payments" shall include money, property, services, and all other forms of consideration.) All Records shall be maintained in accordance with generally accepted accounting principles consistently applied. ADVERTISER and/or its representative shall have the right%at any time during normal business hours, upon twenty-four (24) hours notice, to examine said Records. 15. Governing Law. This Agrebment, and all matters of issue collateral thereto, shall be governed by and construed under the internal laws of the State of Florida applicable to agreements made and to be performed entirely within the State of Florida. 16. Ent Ia'�e Aareemetl �e11 nt etl� This Agreement sets forth the final and complete understanding of the parties with respect'to this subject matter. It is understood and agreed that there are no other representations with respect to this Agreement and this Agreement supersedes all prior discussions, agreements sand undertakings relating to the subject rpatter hereof. It is further agreed that the rights, interests, understandings, agreements and obligations of the respective parties pertaining to the subject matter of this Agreement: ins), not be amended, modified or supplemented in any respect except: by a subsequent written instrument evidencing ttie express written consent of each of the parties duly executed by the parties. Any terms inconsistent with or additional to the terms set forth in this Agreement which may be included with a purchase order, acknowledgment, invoice, etc., of either party shall not be binding on the other party hereto. 17. Noti=. Any notice required or permitted to be given tender the terms of this Agreement shall be in writing, and shall be deemed to be given as of the date of delivery if hand delivered or as of the postmark if sent by United States certified or registered mail, return receipt requested, postage fully prepaid, to the applicable address set forth below, or to such other person or address as the receiving party may have designated by written notice to the other). An extra copy of all future notices to ADVERTISER must be sent to ADVERTISER'S legal department in order for the notice to be binding on ADVERTISER. -7- 90 - 370 I1 Director - Advertising Services ANIIEUSER-BUSC1t , INC. 1 Busch Place St. Louis, Missouri 63116 Legal Department ANIIEUSER-BUSCN, INC. 1 Busch Place St. Louis, Missouri 63118 City Manager 3400 Pan American Drive Coconut�Grove, FL 33133 18. H-a-Wig—of—A • CITY achnowIedges that the rights and privileges granted to ADVERTISER hereunder are special, unique, extraordinary and impossible of replacement, which gives them a peculiar value, the loss of which could not be reasonably or adequately compensated in damages in an action at law, and that CITY's failure or refusal to perf:orin its obligations hereunder would cause ADVERTISER irreparable loss and damage. If CITY fails or refuses to perform such obligations, ADVERTISER shall be entitled to injunctive or other.equitable relief against CITY, including temporary relief prior to a time at which a preliminary bearing may be held by a court%of competent jurisdiction to prevent the continuance of such failure or refusal or to prevent CITY from granting rights to.others in violation of this Agreement. 19. Wjjy_ek. The failure of either party hereto to insist in any instance upon the strict performance of any provisions of this Agreement or to exercise any election contained herein shall not be construed as a waiver or relinquishment for the future of such provision or election. No waiver or modification by any.party shall have been deemed to have been made unless expressed in writing by such party. 20. CDDmoliance witlj the Law. Should ADVERTISER determine that this Agreement or any provision hereof violates any federal, state or local law or regulation, then the parties shall promptly modify this Agreement to the extent -necessary to bring about compliance with such law and/or regulation; provided, however, that if such modification would cause this Agreement to fail in its essential purpose or purposes, it shall be deemed cancelled by mutual agreement of the parties. In the event of such cancellation, payment shall be made only to the extent of a party's performance to and including the date of cancellation, and any payments which shall have been made and which are applicable to future time periods shall be refunded pro rate to the date of cancellation, and neither party shall have any further obligations or liability with respect to this Agreement. 21. xme of -the -u-*-ej-w-e . Time is of the essence in the performance of all matters hereunder. MIM 90- 370 AP 0 IN WITNESS WHEREOF, the parties hereto have executed this Agreement: AN11EUSER-HUSCH, INC. Dated , 1988 13y :-4 % Attest: Exe tive Yi 'residei iL (SEAL) Dated , 1.98/4 Approved as to Insurance In' ur c e/-6 n a g e r ApproyAq as to form and Corr ess: ;9udia A: Dougherty City At -to rney CITY OF MIAMI, a Municipal Corporatio of the State of orida By' .CESAR 11. ODIO, City Manager Attes wf't�d� -MATTY HIRAI, City Clerk C� Approled as to m6tting Uep,ar dhltc �� 1iui. men•ts lWalter E. Golby?Vrector 4 - 0 I -9- 30- 370 Ack n ADVERTI SI00 AORFFMPHT This Agreement, entered into this 4" day of 1987, by and between Kentwood Spring Water, Inc. a• for profit Louisiana corporation, iocated at 3410 lloward Avenue, P.U. Box 52043 uew t,rleans, L.A. 7U152-2043, (504) 821-4505 (hereinafter referred to as "ADVLl('rA' Sb)t"), and the City of Miami, (hereinafter referred to as "CITY"), for advertising at Lite Miami orange Bowl Stadium, a sports facility owned alid operated by the City of Miami and located in Miami, Florida. R E C I T A L WHEREAS, the CITY hereby represents and warrants that it has the exclusive right to sell advertising space in the Prange Bowl Stadium, hereinafter referred to as the "Stadium" on the terms'and conditions set forth in this Agreement= and WHEREAS, the ADVERTISER desires to place certain advertising materials on advertising space in the Stadium arid the CITY desires to grant such rights to the ADVERTISER; L:UW, 'II(EIIEFURE, in consideration of the mutual covenants and agreements hereinafter contained, the parties hereby agree as followst 1. Grant of Advertising Ri hts CITY hereby grants ADVERTISER the right to 'display its advertising material during the term hereof on a four (4') foot by thirty-five (35') foot "Advertiser's Panel" located on the facia of the upper deck of the north side of the orange Bowl Stadium directly left of center advertising panel. Also, a four (4') foot by sixteen (16') foot "Advertiser's Panel" on tire facia of the upper deck of the west side of the Orange Bowl Stadium on the center -most space available. It is understood that several advertising panels of this size, being the one provided for hereunder and that of different advertisers shall be located in this area. +t is also understood that the different advertiser's product shall not be a competitive product to the advertiser.. Vor example, only one thirst quencher advertiser will be permitted on the north and west side upper deck area; however, a - 1 - 9 0 - 370 � different thirst gt.aencher Advertiner will hp permitted to =- advertise on the f.aci:z are: of the soijF_h POP ul,per ciec_k bens, (b) ADVERTISER will obtain and maintain all necessary permits and approvals for the installation and display of 10-K Panels. _ (c) CITY warrants that it does not now have, nor will it obtain during the term of this Agreement, any interest, direct or indirect, financial or otherwise, in any license to sell thirst quencher beverages. (d) CITY shall provide liaison personnel satisfactory to ADVERTISER to consult with ADVERTISER in connection with the advertising rights granted herein throughout the Agreement tern.. (e) ADVERTISER shall pay any and all applicable sales tax that are incurred, or use and property taxes and special assessmOnts relating to the sign, file all necessary returns and register, where required, with local tax authorities. 2. Representations of City (a) The CITY warrants that the !University of Miami and = the Orange Bowl classic will play their regular season home games and exhibition games in the Stadium during each Contract Period Las defined in Paragraph 5 (a) hereinJ. (b) CxTY warrants to ADVERTISER that Advertiser's Panel will be displayed at all events conducted within the Stadium. 3. hdvertising Co ,y, Installation and Maintenance (a) The design, layout and content of all advertising copy provided for herein shall be dubject to approval by the CITY which approvals shall not be unreasonably withheld. The use by ADVERTISER of similar copy in other sports facilities in the United States shall be one standard establishing reasonableness. 1. Such copy may be changed at any time, provided, however, the specifications for such changes (as well as any change in the product to be advertised) shall have been approved in advance by the CITY and all costs incident thereto borne by ADVERTISER . In the event the CITY intends to withhold its approval of any copy submitted by ADVERTISER, it Shull notify ADVERTISER of Buell intention within ten (10) days of the receipt of Such copy. _ 2 _ 90- 370 5� o 11 n n (I fnn I ntetintice of A DV F RT I S F R S Copy for All Advertising covered by th i F; Agreement, fiicludhiq CbAi-iqP_iq' shall be at the expeiisp of the ADVERTISER. Tlie CITY shall be responsible for installation of ADVERTISER'S Advertising Panels only. ADVERTISER shall be permitted reasonable access to the sign an necessary to accomplish the purposes expressed herein. (c) The City of Miami will guarantee to ADVERTISED that Advertiser Panel's will not be obstructed during any events In the Orange Bowl Stadium during the term of this Agreement. 4. Payment ADVERTISER shall pay His CITY for the advertising rights granted herein, the sum of twenty-five thousand ($25,000) and applicable tax if any, which sum shall be payable as followst Twelve- thousand five hundred dollars ($12,500) upon signing and delivery of this agreement prior'to Devember 15, 1987 and the balance'of twelve -thousand five hundred dollars ($12,500) due on or before April 1, 1988. Any payments in default thereof shall bear interest at the rate of eighteen (181) percent per annum. 5. Term and Renewal of Agreement (a) The term of this Agreement shall commence as of December 15, 1987 and shall continue through December 14, 1968 which shall include the entire football season and concert events. The ADVERTISER may have the option to -extend the Advertising term for the years 1969 and 1990 at the same rate of compensation per this agreement. All option years to be paid in full upon signing and delivery of agreement prior to December 15th of each year. The term or extended term Is herein called the "Contract Period". (b) Delay, interruption, or diminution of the ,performance of this Agreement from any cause beyond the control of the CITY, including, without limitation, power blackout, war, state or national emergency, act of God, strike, work stoppage, picketing, damage or concerted action by any employee or any labor organization, or delays occasioned by Construction, 8hall not constitute a ground for cancellation. Provided, however, that, should such a delay result in ADVERTISER being unable to advertise its product at any Football Game or Concert Events, of - 3 - 90- 370 52- any contract: year; bpcause Of? product i.r? no )ongv.r manufactured or sold, or if. any Inw, requ.lation, ordfiinnee or rti.titag becomes effective which makes advertising of thirst quincher products unlawful as comtemplated by this Agreement, then the ADVERTISER shall be entitled to cancel this Agreement without penalty or interest for the ensuing contract year. No refund shall be applicable in any contract year as a result of ADVERTISER'S inability to display its advertising panels notwithstanding the cause of dame. (c) The CITY may, within one hundred eighty (180) days from expiration of this Agreement, submit to ADVERTISER :its proposal for an extension hereof. ADVERTISER shall Notify CITY within thirty (30) days from receipt of said proposal whether or not -it will accept same. ADVERTISER'S failure to notify CITY shall bc� deemed to be a rejection of said proposal, and CITY may tliereafeer sell said advertising to any other party or entity of its choosing without further obligation to ADVERTISER. 6. Termination and Default (a) In the event of a default by either party in the performance of any of the terms or conditions of this Agreement, which default shall not have been remedied within ten (10) days after notice of the default has been given in writing to the defaulting party, the non -defaulting party may in addi•ti�on to any other remedies which may under the circumstances be available to it, terminate this Agreement, effective immediately, upon Notice of termination given in writing. Notwithstanding the above notice and right to cure provision, no written notice of a monetary default by ADVERTISER need be given by CITY as prerequisite to declaring said default and exercising the rights % (b) If the CITY no longer intends to use the Orange !Bowl Stadium for football or concert events, for arty reason including termination of University of Miami, or the Orange [fowl Committee (hereinafter "leasses"), then this Agreement may be terminated by the ADVERTISER as of the day after tine season during which the last game was played at the Stadium. 4 ` 90-- 370 (c) In the PVPIlt this Agreement Is terminated beca!_rse of the defa�rl.t of C;TY rit ns n rQAtalt_ of a l.PnRPPB ceasing t.o play its Football or Concert Events in the orairge Bowl StadiuRi on a regular bash;, prior to the end of a period for which ADVERTISER has paid the CITY, their the CITY shall make appropriate refund to ADVERTISER. The amount of any refund to ADVERTISER shall be calculated by (a) dividing the number of home games actually played in the Stadium by the Lessees during a season for which ADVERTISER has paid the CITY by the number of home games originally scheduled to be played in the Stadium by the Lessees during such season, (b) multiplying this quotient by the total payment made by ADVERTISER of such season, (c) subtracting the product so obtained from the total payment made by ADVLRT15L•'R for such season, and (d) refunding the difference to ADVERTISER. �(d) Should either party default hereunder, the rron- defaulting party may elect to cancel this Agreement and seek all applicable damages in connectiosti therewith, pr at its discretion the non -defaulting party may seek to specifically enforce the obligations of the defaulting party for the remaining term of this Agreement. ` (e) In the event of any dispute arising under this Agreement or should either party be required to specifically enforce this Agreement, then in all such events the prevailing panty shall be entitled to collect from the other its attorney's fees and court costs incurred in connection therewith. 7. Assignment Neither party may assign any of its rights under this Agreement without the consent of the other except Lite merger of the ADVERTISER into an entity substantially owned and controlled by its present parent corporation shall not constitute an assignment hereunder. B. Indemnification (a) ADVERTISER sliall defend, indemnify and save the City, harmless from any and all loss, liability, claims and demands including attorneys' fees and court costa arisilrg out of - 5 - 90- 370 5�- AL fire chartact(�r, cc,�tl.ents tend sttb:ject mattpr Of atey cooly displayed i by 1L11Vt:.kt'I'iSER in the Stadit_tm or any injttriomn rauntai.teed by any person or property as a result o£ improper inainten, or installation (following initial installation) of the Advertising Panels. tb) CITY shall indemnify the ADVERTISER and hold it harmless from and against any and all claims, damages, liabilities, costs and expenses, including reasonable legal fees, arising from or in connection , with the City's negligent installation of the Advertising Panels as specified in Paragraph 3(b) of this Agreement, subject to the provisions of section 768.28, Florida Statutes. 9. Authority The parties represents and warrant that they have the full and exclusive right and authority to enter into this Agreement. 10. Insolvency, Rankruptcl In the event that ADVERTISER becomes insolvent, makes an assignment for the benefit of creditors, becomes the subject of any bankruptcy, reorganization or arrangement proceeding or defaults .in any obligation, whit)) default would allow the party to whom the obligation is owed to attempt to foreclose ADVERTISER from exercising its rights to prevent ADVERTISER from,paying its obligations hereunder, then this Agreement may be terminated by the CITY after ten (10) day written notice is given to the ADVERTISER. 11. Relationship -of the Parties Nothing contained herein or done pursuant hereto shall be construed to create any relationship of principal and agent - or employer and employee between the ADVERTISER and the CITY or to hake them joint venturers. 12. Headingn Headings are supplied for convenience only and are not to be construed as an interpretation of any of the language of this Agreement. - 6 - 4 90- 370 5' 3.3. Audits; Metentiol► alid Iris ,ecti.on of Records CITY rsIlal..i maintaili records of PI11 contracts, paper6 correBpondence, proof of payment, affidavits of performance, Ledgers, books, accoulfts and other informatiol► relating to the payments made by AIJVI K'f sun to CITY for the services hereunder or performance hereunder. ADVERTISER or its designee may inspect, • examine, and review such records (and make copies thereof) at any time during normal business hours, provided prior permission from CITY is received. 14. Laws to Govern This Agreement, and all matters of issue collateral thereto, shall be governed by the laws of the State of Florida applicable to agreements made and to be performed entirely within the State of Florida, 15k. Entire Understanding This Agreement contains the entire understanding to the parties hereto relating to the subject matter herein contained and may not be changed except by consent of the parties hereto in writing. 16. Notices Any notices required or permitted to be given under the terms of this Agreement shall be in writing and shall, be deemed to be given if sent by United States certified mail, return receipt requested, postage fully prepaid, to the addresses set forth below, or to such other person or address as either party may designate by written Notice to the other party as herein provided. ADVERTI SER e CITY OF' 14I1UH Kentwood' Spring Water, Inc. Attn: City anager 3418 Howard Avenue 3400 Pan American Drive P.U. Box 52043 Coconut Grove, Florida 33133 Whew Orleans, La. 70152-2043 17. Waiver The failure of either party hereto to insist in any instance upon the strict performance of any provision of this Agreement or to exercise any election contained herein shall not be constured as a waiver or relinquishment for the future of such provision or election. IJo waiver by an}+ par. t y shall hnve beets deetnotl to hrivp beets made unl.esS Pxprespecl its writ.inq 11' noels party. 18. Time of Essence 1,11ne shaaii be of the essence with respect to all matters set forth herein. 19. Amendments No amendments to this Agrement shall be binditig on either party unless in writing and signed by both parties. IN WITNESS IIIERCOF, the respective parties hereto have hereunto caused these presents to be signed, sealed ai)d delivered on the date and year first above written. ATTEST: RATTY HIRAi City Clerk ATTESTt Corporate/Se ret r APPROVED AS TO INSURANCE Insurance Manager CITY OF MIAMI, a Municipal Corporatioti of the State of Florida BYt CESJIR 6i. OUiU • City Manager APPROVED AS TO FORM AND CORRECTNESS: LUCIA A. DOUGHERTY City Attorney APPROVED BY THE DIRECTOR OF PA 8, KECAEATPN AND PUBI"F'1-.Ci LLZI F.Il/UEPARTMENT ADVERTISER, Kentwood Spring Water, Inc. a for profit Louisiana corporation B Y t Title t (SEAL) 90- 370 5-1 61 CORPORATE RESOLUTION WHEREAS, Kentwood Spring Water, Inc. desires to enter into an agreement with tl►e City of Miami for use or the north and west side upper deck area facia for Advertising Panels of the Orange Bowl Stadium; and WHEREAS, the Board of Directors of Kentwood Spring Water, .r►c@ has examined terms, conditions and obligations of the proposed contract with the City of Miami for use of the orange Bowl Stadiums and WHEREAS, the Board of Directors at a duly held corporate meeting •.has considered the matter in accordance with the By -Laws of the corporation; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS of Kentwood Spring Water, Inc. that the President( ) or Vice- president( ) or Secretary( ) (please check one) is hereby authorized and instructed to enter into a contract in the name of and on b4half of this corporation with the City of Miami for the use of the orange Bowl Stadiums in accordance with tile contract documents furnished by the City of Miami, atad for the price and upon the terms and payments contained in the proposed contract submitted by the City of Miami. IN WITNESS WHEREOF, this il` day of beSr'r111:r 198 Attest: Corporate y cretary i'�g u - Print �t or. 'Type Name CHAIRMAN, Board of Directors By "-Ov� signature) Pr nt or Type Name (SEAL) EXHIBIT 1 90— 370 5 p This Agreement, is entered into by end between Ffillcr Brewing Compnny, a Wlscorrrirr corporation witli of fires located at 3939 West IliebInnd l;oulevnrd, Kiltwaukee, Wineviisi.n 53201 ("ADVERTISER"), and fire City of Miami ("CITY"), eor advertising rights at the Man. nrnnge Bowl Stadium, n sports Cecility owned and operated by CITY rind located in Miami, Florida (the "Stadium"). WITNESSETII: WHEREAS, CITY owns the Stadium ,and hereby represents and warrants that it tins the exclusive right to sell and lease advertising space in the Stadium; and WHEREAS, CITY has represented that one 4' x 35' panel has been erected at the location on the fascia of the upper deck of the north side of the Stadium, shown on Exhibit A attached hereto and that one 4' x lb' panel has been erected by it on the fascia of the south side of the upper deck of the Stadium shown on Exhibit "B" attached hereto (collectively the "Panels") ; and WHEREAS, ADVERTISER desires to display certain advertising materials on the Panels, and CITY desires to grant suchlrights to ADVERTISER; DOW THEREFORE, in consideration of the premises and mutual covenants and agreements contained herein, the sufficiency of which are hereby acknowledged, the parties hereby agree as follows: I. Grant of Adverting Rights. CITY warrants that it Inns the right to grant, and it hereby grants to ADVERTISER h throughout this Agreement, the right to display advertising materials on the Panels, Except as provided in I'aragraph 8, CITY shall not permit itself (or others besides ADVERTISER) to use the Panels. l of 11 0 90- 370 2. Additional Obligations of Both 11artiee. -i ' (a) CITY represents and warrants that during the Agreement term no other malt beverage advertising beside =— ADVERTISER'S shall appear in or on the north and south (between -_ goal lines) upper decks of the Stndium. This stall. not, however, • limit advertising on the west area, or preclude advertising by other than malt beverage entities in or on the north and south upper decks except as provided below, or limit the sale or display for sale of any products (including malt beverage products) at concession stands or by vendors at or around the Stadium (even in the north upper deck), or the advertising of other products (including malt beverage proddcts) in printed materials distributed in and around the stadium such as programs). (b) CITY will obtain and maintain all necessary approvals for the installation and display of Lite Parcels and ADVERTISER'S signage thereon. (c) CITY warrants that it does not now have, nor will it obtain during the term of this agreement, any interest, direct or indirect, financial or otherwise, in any license to sell alcoholic beverages. (d) CITY shall provide liaison personnel satisfactory to ADVERTISER to consult with ADVERTISER in connection with the advertising riyhts grant-ed herein throughout the .Agreement term, (e) CITY warrants Lhat the University of Miami will play all of their men's varsity home football games in the Stadium each contract year of the Agreement, and that the orange Bowl Classic men's NCAA Division 1 football bowl game will be held in the Stadium each contract year of this Agreement. 2 of 11 90- 370 Ap ,rit r• 3. Advertising Cap,, Installation and Maintenance. (a) The construction of the panels, the design, layout and content of all advertising copy for use on Lite Panels during title Agreement term shall be provided by ADVERTI§ER, subject to CITY's approval, which approval SIMII net be unreneona.bly withheld of delayed. The use by ADVERTISER of similar copy in other sports facilities in Lite United States shall be one standard of establishing reasonableness. Such copy may, at ADVERTISER'S option, be changed at any time ( and from time to time); provided that the specifications for such changes shall have been approved in advance by CITY and all painting cost; incident thereto are to be borne by ADVERTISER. In the event CITY intends to withhold its approval of any copy submitted by ADVERTISER, it shall. notify ADVERTISER within ten days of,its receipt of such copy, or said copy shall be deemed to have been irrevocably approved. (b) Construction of the supporting structures for the Panels and the installation of *the Panels shall be at the expense of and shall be the sole responsibility of CITY. CITY shall insure' that workers Hired by ADVERTISER can (as many times as ADVERTISER requests) Ilave access to the Panels to permit the painting and repainting of ADVERTISER's copy thereon upon ten d&ys prior notice to CITY (or such snorter time as may be agreed to by the parties). (c) CiTY warrants that the Panels will be installed at all events at the Stadium throughout the term of this Agreement. City also warrants that the supporting structure for the Panels shall be properly maintained (and if damaged, promptly o � rebuilt), to permit the proper display of ADVERTISER's copy oil the Panels. CITY shall, at its expense, maintain and protect ADVERTISER's copy on the Pastels (normal wear and tear excepted), and if it is damaged, destroyed, or removed, CITY shall promptly pay the cost of replacing re repairing it (subject to ADVERTISER's reasonable instruction), 3 of 11 90-• 370 L4C>J (d) CITY '...ld AM i"R't'I5rM shnl l ench irrr:trr-e tint t hv I r Activities Are In compilrrncc with nlI federnl, r.tnte and local leans, ordieint►ces, Permit?,', rules and orders. (e) At CITY's expense, CITY shall cnusr ADMITMR's copy on the Panels to be properly it luminnted during nil events except religious, politicnl or youth oriented spetinl events nt the Stadium throughout the term cif this Agreeme.rrt . Proper illumination shall not require separate lil;hting for the Panels, but shall require tint the Panels not be lit less brightly than the upper deck during any such event. (f) CITY shall not interfere, nor shall it permit others to interfere, with ADVT; vriSER's use and enjoyment of the Panels during the term of this Agreement. Ili this regard, CITY covenants that the Panels shall not during the Agreement period be disturbed by any paramount claim or obstruction or directioys from any televising authority, and the CITY will nit its own expense do all thinks necessary and/or convenient to protect ADVERTISER from such matters. 4. Term of Agreement; Payment; Option to Renew. (a) This Agreement shall commence ten (10) days after execution, or if earlier the date on which ADVERTISER's Panels have been fully installed (tile "Commencement Date") . It 611811 terminate three (3) years later unless terminated earlier as provided below. ADVERTISER's panels have been installed since December 30, 1987. (b) For the rights granted to ADVERTISER hereunder during the initial term, ADVERTISER shall pay CITY Sixty Thousand Dollars ($60,000) (tire "Contract Price"), which amount ----------- shall be payable as follows: Twenty Thousand Dollars ($20,000 with ten (10) days after execution of this Agreement; Twenty 'thousand Dollars ($20,000) on or before January 1, 1909; arid Twenty Thousand Dollars ($20,000) oil or before Jnnunry 1, 1990. Payment by ADVERTISER hereunder shall be deemed to include all applicable taxes, duties and other charges. 4 of 11 go- 370 toe s 'I 9 (c) ADVCIItISEM Itnn tltt, option, but no oblipntiott, to renew this Agreerrviit upon the same tertrs and condI ttons nr provided herein, including; the Contract price, for one additional period of three (3) years (w(th payments due by January 1 of 1991, 199) , aaid 1993) by giving CITY not ice in writing of its intention to do so at least six (6) months prior to the last day of the inning Agreement term. 14o purported renewal shall bind ADVERTISrR unless agreed to in writing by a corporate officer of ADVERTISER. if ADVERTISER does not exercise its option to renew, CITY mny grant the advertising rights similar to that granted hereunder to any other party upon the expiration of this Agreement, but during the three (3) year renewal period not upon terms more favorable than those offered to ADVERTISER without providing ADVERTIS 11% a twenty (20) day right of first refusal with respect to any such more favorable berms. 5. Default. A party shall be deemed to be in default hereunder if: • (a) It fails to perform or observe any terms of the Agreement and such failure has not been completely cured within thirty (30) days afterAhe party received written notice thereof from the other party: (b) It is insolvent (either unable to pay its debts when due or has a negative net worth), or makes a general assignment for the benefit of creditors; is adjudicated bankrupt; files a voluntary petition in bankruptcy or for reorganization, or to effect a plan or other similar arrangement with creditors; files an answer to a creditor's petition or to another similar petition filed against it, admitting the toaterial allegntion thereof; applies for or Vpermits the appointment of a receiver or trustee or custodian for any of its property or assets; or a receiver, trustee or custodian is appointed for any of its property or assets and such receiver, trustee or custodinn so appointed is not 5 of 11 90- 370 Les discharged with nl.. (60) clr.yr. nft.er Lhv tinte 'of t.hlr appointment; or nn ordo.-r Jr, mitered tend ncit dismi rsecl or A1_AVr1(1 within sixty (60) clnys fr-om its Qntry, approving navy petition for reorganization of the party. 6. Termination. Upoti n default ns defines) in Paragraph 5, the non-deinulting party may nt its option elect to terminate this Agreement by nerving written notice on the other party of its intention to do so. In the event of such n termination (without prejudice to any other remedies under Inw or equity) and also in those cases specified -in Paragraph 7, CITY shall immediately refund to ADVERTISER a prorated portion of the Contract Price. The proration shall be based on Four Thousand Dollars ($4,000) for each University of 111ami Men's NCAA Division I football g,nme less than four played in the Stadium in that contract year and for each Orange Bowl Men's NCAA Division I football bowl game less than one played in the Stadium during the contract year. Thus, if six University of Miami games are played and no Orange Bowl, the refund is Four Thousand Dollars ($4,000). 7. Unforeseen Events. (a) If (i) any law, regulation, ordinance or ruling becomes effective which mnkes advertising of malt beverage products unlawful as contemplated by this Agreement, or i requires a modification of the advertising copy that in the reasonable opinion of ADVI,RTISF.R materially reduces the value of this Agreement, or (ii) if CITY or the University of Miami no longer intends to use the Stadium for at least four University of Miami NCAA Division I lien's home football games in any fall or (iii) if City or the University of Miami no longer intends to use the Stadium in any December 29 - January 3 period for an NCAA Division I Orange (jowl Men's football game, then the Agreement may be terminnted by !ADVERTISER. Even though such n n1tuntion shall not be deemed a breach, sucli termination shall entitle ADVERTISER to a pro ratn refund as provided in Paragraph 6 nbove. 6 of 11 90m 370 ILN - -- (1�) The t,ui nv. i It, er-rtip1. 1 nn or dimInIII- 4 nvi of t.i11P. perfarmnr�ce of .s Ag,rei-mv t. from power binckow , wnr-, state a or nntionnl emergency, nct of Cod, strike, work stoppnge, picketing damage or coiicerted nction by nny employee or nnv labor organization, shall not constitute n ground for termination; provided, however, thnt should such b delny result in ADVERTISER being; unable to nOvertise its product as .� specified herein at at least four University of Miami NCAA Division I Men's home football Snmes in any contract year or nt any Orange Bowl in any December 29 - January*3 period, ADVERTISER shall be entitled to the pro rate refund provided in Paragraph 6. 8. ,Assignments. Neither party may assign any of its rights or obligations under this Agreement without Cite consent of the other; provided that ADVERTISER may make an assignment to any division or any subsidiary of its parent Philip Morris ZZ Companies, Inc. In Cite event such an assignment does occur, _ such assignment shall not relieve the assignor from its liabilities or obligations hereunder. Any assignment — inconsistent with this provision shall be void. 9. Indemnification: (a) ADVERTISER shall defend, indemnify and save the CITY, harmless from any and all loss, liability, claims Arid demands including attorneys' fees and court costs arising out of the character, content and subject matter of any copy displayed by ADVERTISER in the Stadium. (b) CITY shall indemnify the ADVERTISER and hold it harmless from and against all claims, damages, liabilities, costs and expenses, including; reasonable legal fees, arising from or in connection with the CITY's negligent installation of the Advertising Panels as specified in Paragraph 3(b) of this Agreement, subject to the provisions of Section 768.26 rloridn Statutes and against any and all claims, damages, liabilities, costs and expenses whatsoever (including reasonable attorneys' fees), arising from or in connection with the type of risks which are insured against pursunnt to Paragraph 11. 7 of 11 90-- 370 1+0. Authority. Each undersigned person repreRentA that they ( and the entities they represent) have the authority and right to enter into this Agreement. 11. City is self insured. And will provide letter to Advertiser to this effect. 12. Relationship of the Parties. Nothing contained herein or done pursuant hereto shall be construed to create any relationship of principal and agent, or employer and employee, between ADVE.RTISEIk and CITY, or to make them joint venturers. 13. Headings. headings are supplied for convenience only and are not to be construed as an interpretation of any language of this Agreement. 14. Audits; I(etention and Inspection of Records. CITY shall maintain records of all contracts, papers, correspondence, proof of payment, affidavits of performance, ledgers, books, accounts and other information relating to the payments made by , ADVERTISER or CITY for the services hereunder or performance hereunder. ADVERTISER or its .designee may inspect, examine and review ouch records (and make copies thereof) at any time upon at least three days notice during normal business hours during the Agreement and for two years thereafter. 15. Governing Law. This Agreement, and all matters of Issue collateral thereto, shall be governed by and construed under the internal laws of the State of Florida applicable to agreements made to be performed entirely within the State of Florida. lb. Entire Agreement; Amendments. This Agreement sets forth the final and complete understanding of the parties with respect to this subject matter. It is understood and agreed that there are no other representations with respect,to this Agreement and this Agreement supersedes all prior discussions, agreements and undertakings relating to the subject matter hereof. It is further agreed that the rights, interests, understandings, agreements and obligations of the respective parties pertaining 8 of ll 9®-• 370 to the subject matter nf trig Agrr_emerat m�,y tic t be ameridec3, modified or supplelnenteci 111 ,'any respect except by a subsequent written instrument evidencing the express written consent of each of the parties duly executed by the parties. Any terms inconsistent with or additional to thy+ terms set forth in this Agreement which may be itic lud►,d with a purchase order, - acknowledgment, invoice, etc., of either party shall not be binding on the other party hereto. 17. Notices. Any notice required or permitted to be given under the terms of this Agreement shall be in writing, and shall be deemed to be given as of the date of delivery if hand delivered or as of the postmark if sent by United States certified or registered mail, return receipt requested, postage fully prepaid, to the applicable address set forth below, or to such other person or address as the receiving party may have _ designated by written notice to the other) . An extra copy0of all future notices to ADVERTISER must be sent to ADVERTISER's legal -- y department in order for the notice to be binding on ADVERTISER. 4 ADVERTISER CITY Director —Advertising Services City Manager Miller Brewing Company 3400 Pan American Drive 3939 W. Highland Boulevard Coconut Grove, Fla. 3313:3 Wlwaukee, WI. 53201 begal Department Miller brewing Company 3939 W. Highland Boulevard Milwaukee, WI. 53201 18. Nature of ADVERTISER's Rights. (a) It is mutually agreed that ttte advertising rights described herein are special, unique, and extraordinary in nature and have a particular value to ADVERTISER. In the event of any breach of this Agreement, ADVERTISER shall. be entitled, in 7dddition to arty other remedies available to it, to obtain equitable relief by way or temporary acid permanent injunction, 9 of 11 90- 370 Cil (lr) I l�t,r I Sir l,t rtl,t► rrntlrtrtnrit) nrrtl ncicrrnwlerlfr thnt tlit p Agret•rnrnt it noIpIy it,r tlrr I,ttr,chnr.r I,f ntiveIt. tIpIng and i,rotnt►tIunni rIplrtr., nrrtl ootItinl, rt+trtnInrtl fir t.r in tlrr rref;otintIvns lit ecedItip, tine executIotr of this Agr-eetnent shnll require the purchase of nny mlctrirol fir bcvernl;e by, or prevent, deter, hinder or restrict in ntty wny the rights of the CITY, Its affiliated compotrirs, cvtrcer.slotrnircr., null/or ntry other Persons, from purchasing ntry brnnd(s) of nlcoholic bevernges in their sole discretion. 19. Waiver. Iltr failure of either party hereto to insist in any instance upon the strict performance of tiny provisions of this Agreement or to exercise nay election contaitied herein shall not be construed es a waiver or relitrquishmertt for the future of such provis jolt or elect ion . No we ivet- or modification by any party shrill have been deemed to hnve been made unlgss expressed fit writing; by such party. ' 20. Time of Lite Essence. Time is of Lite essence in this Agreement. IN WITNESS Wl1EIMor, Lite parties hereto have ind iv idua l l y and through their proper corporate officials executed this Agreement the clay anti "ear written below. I OOP- 370 ) () of ) ) �ps 13 Dated �'-�, 1913n (SEAL) Date/ y d" 1999 MILLER BREWING COMPANY by: � Atf-.esLed : CITY OF MIAMI A Municipal Corporation of the state of Florida e j� gy: Cesar 11. Od o City Manager Attestec,:r�2 ,,-Matt ie 1irai City Clerk APPROVED AS TO INSURANCE: APPROVED AS TO FORM AND. CORRUCTNEBB: , I u anc IpAM er , , r.ucia pbugherty ✓ City Attorney APPROVED: Walter E. Golby, Director Parks, Recreation and Public Facilities Department 3®- 370 11 of 11 m CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM TO: Honorable Mayor and Members DATE. of the City Commission SU&JFCT Cesar H. O FROM: City Manage REFERENCES ENCLOSURES: RECOMMENDATION: CAm4l May 17, 1990 FILE Resolution for new long-term Agreement with University of Miami/Orange Bowl Stadium it Is respectfully recommended that the City Commission adopt the attached Resolution establishing charges, terms and conditions for the use of the Orange Bowl Stadium by the University of Miami for the presentation of Its season home football games for a ten- year period, with two five-year options. The legislation would also authorize the City Manager to execute an agreement with the University for this purpose. BACKGROUND: The Department of Parks and Recreation has prepared the attached legislation regarding the new long-term agreement with the University of Miami for Its continued use of the Orange Bowl Stadium. The existing agreement between the City and the University Is due to expire after the last scheduled regular season home football game In November 1990. Staff of the City Manager's Office, the Law Department and Commissioners J. L. Plummer and Victor DeYurre have worked diligently to complete negotiations for this contract. A synopsis of the proposed terms and conditions are detailed below: TERM: Ten years. The University has the option to extend the term for two additional five-year periods. USE FEE: A per game minimum guarantee of $255,000 versus 10% of gross admission sales receipts, whichever is greater. The minimum guarantee Is subject to annual escalation according to the consumer price Index, and shall be no less than 4% and no more than 6%. SURCHARGE: The University will collect for the City a $1 ticket surcharge on each game admission. Surcharge revenue Is to be used for capital Improvements to the stadlum that are recommended by the University and approved by the City. t� (1,4YI-1 SO- 370 0 Honorable Mayor and Members of the City Commission Agreement with University of MIamI/Orange Bowl Stadium page 2 PARKING: University shall pay the City the prevailing parking rate for the right to control (and resell) parking in the vicinity of the stadium, starting with 2000 spaces and Increasing 20% per year until a maximum of 3400 spaces is reached. SCOREBOARD: Until January 1991, the University has the option to purchase a computerized, animated scoreboard system for the stadium, which will be installed and owned by the City, but maintained by the University. ADVERTISING: The University will have the right to collect revenue from advertising on the scoreboard system and on ten facia boards located on the stadium deck. For this right, It will annually pay the City a minimum of $48,O0O or 15% of gross advertising revenue, whichever is greater. 2- so- 370