HomeMy WebLinkAboutExhibit 3 V1C-XtfM-T SEL"
Final Draft 1/27/09
CITY PARKING AGREEMENT
BY AND AMONG
THE CITY OF MIAMI,
MIAMI-DADE COUNTY
AND
MARLINS STADIUM OPERATOR, LLC
1, 2009
TABLE OF CONTENTS
Article I DEFINED TERMS......................................................................................................1
Article II PARKING FACILITIES.............................................................................................7
ArticleIII TERM..........................................................................................................................7
3.1 Term........................................................................................................................................ 8
3.2 Options to Extend Term.......................................................................................................... 8
3.3 Termination.............................................................................................................................8
Article IV DESIGN AND CONSTRUCTION OF PARKING FACILITIES ..............................8
4.1 Design..................................................................................................................................... 8
4.2 Parking Development Requirements....................................................................................... 9
4.3 Omitted...................................................................................................10
4.4 Construction Work................................................................................................................ 10
4.5 Project Costs......................................................................................................................... 11
4.6 Master Project Schedule................................................................................12
4.7 Right to Inspect and Receive Information............................................................................ 12
4.8 Number of Spaces................................................................................................................. 12
4.9 Liens......................................................................................................................................13
Article V OPERATION OF PARKING FACILITIES.............................................................13
5.1 Operation............................................................................................................................... 13
5.2 Revenue..................................................................................................1 4
5.3 Expenses.................................................................................................14
5.4 Maintenance and Repairs......................................................................................................14
5.5 Insurance............................................................................................................................... 14
5.6 Third Party Manager .........................................
Article VI USE OF PARKING FACILITIES BY TEAM AFFILIATES..................................15
6.1 Team Reserved Parking........................................................................................................ 15
6.2 Stadium Event Parking.......................................................................................................... 15
6.3 Payments for Stadium Event Parking...................................................................................16
6.4 Staffing..................................................................................................................................18
6.5 Soccer Stadium; Other Development.................................................................................... 19
6.6 Advertising Rights, Concessions and Promotional Rights .................................................... 19
ArticleVII Omitted......................................................................................................................21
0
Article VIII DEFAULTS AND REMEDIES................................................................................21
8.1 Stadium Operator Default..................................................................................................... 21
8.2 Government Parry Default.................................................................................................... 21
8.3 Remedies...............................................................................................................................22
8.4 Self -Help Remedies.............................................................................................................. 22
8.5 Termination...........................................................................................................................23
8.6 Exclusive Remedies.............................................................................................................. 23
Article IX INDEMNIFICATION...............................................................................................23
9.1 Indemnification by Stadium Operator................................................................................... 23
9.2 Indemnification by City and County..................................................................................... 23
9.3 Indemnification Procedures.................................................................................................. 24
9.4 Survival.................................................................................................................................25
Article X ARBITRATION........................................................................................................26
10.1 Arbitration.........................................................................................................................26
10.2 Expedited ADR................................................................................................................. 27
10.3 No Indirect Damages......................................................................................................... 27
Article XI
MISCELLANEOUS..................................................................................................27
11.1
Notices..............................................................................................................................
27
11.2
Merger Clause...................................................................................................................
28
11.3
Amendment.......................................................................................................................29
11.4
Binding Effect...................................................................................................................29
11.5
Waiver...............................................................................................................................29
11.6
Nonrecourse Liability of Stadium Operator Personnel.....................................................
29
11.7
Non -Recourse Liability of City Personnel........................................................................
29
11.8
Non -Recourse Liability of County Personnel...................................................................
29
11.9
Assignment........................................................................................................................30
11.10
Consent of Parties.............................................................................................................
31
11.11
Party Representatives........................................................................................................
31
11.12
Headings............................................................................................................................32
11.13
General Interpretive Provisions.........................................................................................
32
11.14
Severability.......................................................................................................................
33
11.15
Further Assurances............................................................................................................
33
11.16
Absence of Third -Party Beneficiaries...............................................................................33
ii
11.17
Governing Law.................................................................................................................
33
11.18
Time of Essence................................................................................................................
33
11.19
Relationship of Parties......................................................................................................
.
11.20
Sovereign Rights...............................................................................................................
34
11.21
Force Majeure...................................................................................................................
34
11.22
Major League Baseball Requirements..............................................................................
34
11.23
Mutual Covenants.............................................................................................................
35
11.24
Anti -Discrimination Clause..............................................................................................
35
11.25
Valid Agreement...............................................................................................................
35
11.26
Books and Records; Audit................................................................................................
36
11.27
County Inspector General and Commission Auditor ..................................... 36
11.28
Counterparts .................................
ui
CITY PARKING AGREEMENT
This City Parking Agreement (this ``Agreement") is made and entered into this day of
2009 by and among the City of Miami, a municipal corporation of the State of
Florida (the "City"), Marlins Stadium Operator, LLC, a Delaware limited liability company (the
"Stadium Operator"), and solely for the purposes of the County Provisions (as defined in Article
I), Miami -Dade County, a political subdivision of the State of Florida (the "County," and
together with the City and the Stadium Operator, the "Parties").
RECITALS
A. On March 3, 2008, the County, the City and Florida Marlins, L.P. executed a
Baseball Stadium Agreement (the `BSA") outlining the general terms and conditions under
which they would move forward to design, develop, construct and operate a Major League
Baseball stadium and related parking facilities to be located on the Entire Site. (Capitalized
terms used herein are defined in Article L)
B. Contemporaneously with the execution of this Agreement: (i) the County, the City
and the Stadium Developer are entering into the Construction Administration Agreement that
provides for the design, development and construction of the Baseball Stadium and the Public
Infrastructure (as defined in the Construction Administration Agreement), and (ii) the County,
the City and the Stadium Operator are entering into the Operating Agreement that provides for
the operation and management of the Baseball Stadium by the Stadium Operator once the
Baseball Stadium has been constructed as provided in the Construction Administration
Agreement.
C. This Agreement provides for the construction, operation and use of parking
facilities to be made available to users of the Baseball Stadium.
NOW, THEREFORE, the Parties agree as follows:
ARTICLE I
DEFINED TERMS
As used in this Agreement, the following terms have the following meanings:
"AAA" is defined in Section 10.1.
"Affiliate" means, with respect to any Person, another Person that directly or indirectly
owns or controls, is owned or controlled by, or is under common control with such Person. For
purposes of this definition, one Person owns another when it owns more than fifty percent (50%)
of the equity interests in the other Person and one Person "controls" another when it has the right
to exercise more than fifty percent (50%) of the voting power of the other Person.
"Applicable Law" means any applicable law, statute, code, ordinance, administrative
order, charter, resolution, order, rule, regulation, judgment, decree, writ, injunction, franchise,
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permit or license, of any Governmental Authority having jurisdiction with respect to the Parking
Premises or to Persons or activities within the Parking Premises, now existing or hereafter
enacted, adopted, promulgated, entered, or issued.
"Baseball Rules and Regulations" means each of the following as amended from time to
time: (i) any present or future agreements applicable to the Major League Baseball Clubs
generally, entered into by or on behalf of Major League Baseball, including, without limitation,
the Major League Constitution, the Professional Baseball Agreement, the Major League Rules,
the Interactive Media Rights Agreement, the Basic Agreement between the Major League
Baseball Clubs and the Major League Baseball Players Association, and each agency agreement
and any operating guidelines among Major League Baseball clubs and Major League Baseball;
and (ii) any present and future mandates, rules, regulations, policies, interpretations, bulletins or
directives issued or adopted by Major League Baseball applicable to Major League Baseball
Clubs generally.
"Baseball Stadium" means the stadium being constructed on the Baseball Stadium Site
pursuant to the Construction Administration Agreement.
"Baseball Stadium Site" means the area of land depicted as such on Exhibit A.
"Board" means the Board of County Commissioners of Miami -Dade County.
"BSA" is defined in the Recitals to this Agreement.
"Business Day" means any day other than a Saturday, Sunday or legal or bank holiday in
the County or the City. If any time period set forth in this Agreement expires on a day other than
a Business Day, such period shall be extended to and through the next succeeding Business Day.
".Casualty" is defined in Section 5.4(b).
"Certificate of Occupancy" means a certificate, whether temporary or permanent, issued
by the City's building official permitting public occupancy and use of the Parking Facilities.
"Ci^yt " is defined in the Preamble to this Agreement.
"City Default" is defined in Section 8.2.1.
"City Parking_ Project' means the design, development, construction and equipping of the
Parking Facilities in accordance with the terms of this Agreement.
"City Parking Site" means the areas of land depicted as such on Exhibit A.
"City Personnel" is defined in Section 11.7.
"City Representative" is defined in Section 11.11.
"Claim" is defined in Section 9.3.
"Commission" means the City Commission of the City of Miami.
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"Construction Administration Aareement" means the Construction Administration
Agreement among the County, the City and the Stadium Developer dated as of the date of this
Agreement, as it may be amended and/or restated.
"County" is defined in the Preamble to this Agreement.
"County Default" is defined in Section 8.2.2.
"County Personnel" is defined in Section 11.8.
"County Provisions" means Sections Articles I and II; Section 3.3; and Articles IV, VII,
VIII, IX , X and XI.
"County Representative" is defined in Section 11.11.
"Default" means a Stadium Operator Default, City Default or County Default.
"Design Standards" is defined in Section 4.1.
"Entire Site" means the area of land described in Exhibit A.
"Expedited ADR" is defined in Section 10.2.
"Expedited ADR Dispute" is defined in Section 10.2.
"Force Majeure" means a war, insurrection, strike or lockout, riot, hurricane, flood,
earthquake, fire, casualty, act of God, act of the public enemy, epidemic, quarantine restriction,
freight embargoes, lack of transportation, governmental restriction, court order, unusually severe
weather, act or the failure to act of any public governmental agency or entity, terrorism, or any
other cause in each case (including the events specified above) beyond the reasonable control
and without the fault of the Party claiming an excuse from performance; provided, however, that
any Force Majeure involving or relating to County or City governmental restrictions or acts or
failures to act of any County or City agency or entity shall not relieve the County or City, as the
case may be, of their obligations under this Agreement unless the failure to act is as a result of
another Force Majeure event beyond the reasonable control and without the fault of the Parry
claiming an excuse from performance.
"Government Indemnitee" is defined in Section 9.1(a).
"Government Party" means each of the County and the City.
"Governmental Authority" means any federal, state, county, municipal or other
governmental department, entity, authority, commission, board, bureau, court, agency, or any
instrumentality of any of them.
"Incremental Labor Costs" shall mean the actual labor costs incurred by the City in the
staffing of the Parking Facilities for a Stadium Event (other than a regular season MLB Home
Game) at staffing levels determined in accordance with Section 6.4., in excess of the labor costs
the City would have otherwise incurred at that time in the operation of the Parking Facilities for
ZD
dates other than Stadium Events, soccer events or other extraordinary events.
"Indemnified Partv" is defined in Section 9.3.
"Indemnitor" is defined in Section 9.3.
"Losses" is defined in Section 9.1(a).
"Major LeaLyUe Baseball" means, individually and collectively, the Office of the
Commissioner of Baseball, the Commissioner of Baseball, the Major League Baseball clubs,
Major League Baseball Enterprises, Inc., Major League Baseball Properties, Inc., Major League
Baseball Properties Canada, Inc., Major League Baseball Productions, MLB Advanced Media,
Inc., MLB Advanced Media, L.P., MLB Media Holdings, L.P., MLB Media Holdings, Inc.,
MLB Online Services, Inc., each of their respective present and future affiliates, assigns and
successors, and any other entity owned equally by the Major League Baseball clubs.
"Maior Sponsor" means a Person that spends at least the following amounts in any
applicable Operating Year with the Team Affiliates (collectively) for Advertising (as defined in
the Operating Agreement) or other rights or benefits relating to the Team Affiliates and/or the
Baseball Stadium: (i) $500,000 in any of Operating Years 1-15, (ii) $525,000 in any of Operating
Years 16-25, or (iii) $600,000 in any of Operating Years 26-35.
"Master Project Schedule" is defined in the Construction Administration Agreement.
"MLB Events" means, collectively, MLB Home Games and MLB Jewel Events.
"MLB Home Games" means each of the Team's scheduled or rescheduled baseball
games at the Baseball Stadium, including exhibition, spring training, regular season, playoff and
World Series games.
"MLB Jewel Events" means the Major League Baseball All-Star Game (and related
events), World Baseball Classic and other Major League Baseball -controlled events expected to
have an attendance of more than 5,000 people scheduled or rescheduled at the Baseball Stadium.
"MLB Reserved Dates" means all dates (x) on which MLB Events have been scheduled
(or rescheduled) or (y) that the Team is required to reserve for the scheduling of MLB Home
Games (including potential post -season games) or MLB Jewel Events under MLB Rules and
Regulations.
"MPA" means the Department of Off -Street Parking of the City, d/b/a the Miami Parking
Authority.
"Neutral" is defined in Section 10.2.
"Non -Relocation Agreement" means the Non -Relocation Agreement among the Team,
the County and the City dated as of the date of this Agreement, as it may be amended and/or
restated.
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"Operating Agreement" means the Operating Agreement among the County, the City and
the Stadium Operator dated as of the date of this Agreement, as it may be amended and/or
restated.
"Operating Standard" is defined in Section 5.1(f).
"Operating Year" means (i) the period commencing on the Substantial Completion Date
and ending on the next succeeding October 31 and (ii) each subsequent twelve (12) month period
during the Term commencing on the November 1 following the Substantial Completion Date and
ending on the next succeeding October 31; provided that if this Agreement terminates on a date
other than October 31, there shall be a partial last Operating Year ending on the date of such
termination.
"Other Development" is defined in the Construction Administration Agreement.
"Other Events" means Stadium Events that are not MLB Events.
"Parking Architect" is defined in Section 4.1.
"Parking Criteria" is defined in Article Il.
"Parkin Desi,an Documents" means, collectively, (i) the schematic design documents of
the Parking Facilities, as may be amended from time to time in accordance with this Agreement,
illustrating the scale and relationship of the components of the Parking Facilities, (ii) the design
development documents of the Parking Facilities, as may be amended from time to time in
accordance with this Agreement, based upon and refining the schematic design documents set
forth in clause (i), illustrating the scope, relationship, forms, size and appearance of the Parking
Facilities by means of plans, sections and elevations, typical construction details, and equipment
layouts and architectural drawings, and (iii) the final construction drawings and specifications, as
may be amended from time to time in accordance with this Agreement, setting forth the complete
design of the Parking Facilities in sufficient detail for the permitting and construction of the
Parking Facilities.
"Parking Development Requirements" is defined in Section 4.2(a).
"Parking Facilities" is defined in Article II.
"Parking Final Completion" means the occurrence of all of the following: (i) the Parking
Architect has signed and delivered to the City and the Stadium Operator a certificate of final
completion, (ii) a permanent Certificate of Occupancy has been issued with respect to the
Parking Facilities, and (iii) punch list items have been completed.
"Parking Manager" is defined in Section 5.6.
"Parking Premises" means, collectively, the City Parking Site and the Parking Facilities.
"ParkingY Structures" means the parking structures to be constructed by the City on the
City Parking Site as described in the Parking Criteria.
"Parking Substantial Completion" means the occurrence of both of the following: (i) the
Parking Architect has signed and delivered to the City and the Stadium Operator a certificate
certifying that the Parking Facilities have been substantially completed subject to the completion
of minor punch list items that do not materially affect the use of the Parking Facilities as
contemplated by this Agreement, and (ii) a temporary or permanent Certificate of Occupancy has
been issued in respect of the Parking Facilities.
"Parties" is defined in the Preamble to this Agreement.
"Person" means any natural person, firm, partnership, association, corporation, limited
liability company, trust, public body, authority, governmental unit or other entity.
"Promotional Riuhts" is defined in the Operating Agreement, and shall include all
Revenue Rights referred to therein.
"S_i naLye" means all signage (whether permanent or temporary) in or on the Parking
Premises, including banners, fascia boards, displays, message centers, advertisements, signs and
marquee signs, in each case, in accordance with this Agreement. The size, dimensions, location
and design of all Signage shall be subject to Applicable Law respecting such Signage.
"Stadium Agreements" means, collectively, this Agreement, the Construction
Administration Agreement, the Operating Agreement, the Non -Relocation Agreement, and the
Assurance Agreement.
"Stadium and ParkingMUSP" is defined in the Construction Administration Agreement.
"Stadium Developer" means Marlins Stadium Developer, LLC, a Delaware limited
liability company, and its permitted successors and assigns.
"Stadium Event", means any event held at the Stadium Premises, including: MLB Home
Games; MLB Jewel Events; Team practices, exhibitions, clinics, promotions and fan activities;
and other professional or amateur sporting events or exhibitions, concerts, trade shows,
conventions, general audience, family or other targeted audience shows, performances or
exhibitions. Notwithstanding the foregoing, Stadium Events shall not include Community
Events (as defined in the Operating Agreement).
"Stadium Operator" means Marlins Stadium Operator, LLC, a Delaware limited liability
company, and its successors and assigns permitted under Section 11.9(a).
"Stadium Operator Default" is defined in Section 8.1.
"Stadium Operator Indemnitee" is defined in Section 9.2(a).
"Stadium Operator Personnel" is defined in Section 11.6.
"Stadium Operator Representative" is defined in Section 11.11.
"Stadium Premises" is defined in the Operating Agreement.
"State" means the State of Florida.
"Substantial Completion Date" is defined in the Operating Agreement.
"Surface Lots" means the surface parking lots to be constructed by the City on the City
Parking Site as described in the Parking Criteria.
"Team" means Florida Marlins, L.P., a Delaware limited partnership, and its permitted
successors and assigns.
"Team Affiliate" means the Team, the Stadium Operator, the Stadium Developer and any
other entity that is an Affiliate of the Team.
"Term" is defined in Section 3.1.
"Transfer" is defined in Section 11.9(a).
"Work" is defined in Section 4.4.
ARTICLE 11
PARKING FACILITIES
The City shall construct or cause to be constructed, on the City Parking Site, Parking
Structures and Surface Lots (together, the "Parking Facilities") that will include approximately
6,000 (subject to Section 4.8) parking spaces held for use as provided in this Agreement, and will
operate and provide access to such Parking Facilities, on the terms set forth in this Agreement.
The general configuration, layout and design features of the Parking Facilities are more
particularly described in the Parking Criteria attached hereto as Exhibit B (the "Parkin
Criteria"), and will be reflected in the Parking Design Documents.
ARTICLE III
TERM
3.1 Term. The term of this Agreement shall commence on the date hereof and shall
expire on October 31 in the year in which the twentieth (20th) annual anniversary of the
Substantial Completion Date occurs, unless sooner terminated pursuant to any applicable
provision of this Agreement (such term as it may be so terminated, or as it may be extended
pursuant to Section 3.2, being referred to herein as the "Term").
3.2 Options to Extend Term. The Stadium Operator shall have the option (but not the
obligation) to extend the Term on the same terms and conditions set forth in this Agreement for
(a) an additional term of ten (10) years, and (b) if so extended pursuant to clause (a), a further
additional term of five (5) years. The Stadium Operator shall exercise its option to extend the
Term by delivering written notice of such exercise to the City no later than three hundred sixty-
five (365) days prior to the expiration of the initial Term or any extended Term, as applicable.
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3.3 Termination. Notwithstanding anything to the contrary in this Agreement, this
Agreement shall terminate with respect to the Stadium Operator upon the tennination of the
Operating Agreement. Upon any early termination of the Operating Agreement pursuant to
Article XVII thereof, the County shall have the right, at its sole discretion, within 180 calendar
days following the early tennination of the Operating Agreement, to elect to assume the Stadium
Operator's rights and obligations under this Agreement for the remainder of the Tenn. or such
earlier date upon which title to the Baseball Stadium Site may revert from the County to, or at
the direction of, the City pursuant to the Warranty Deed referred to in the Construction
Administration Agreement; provided, however, that upon expiration of such 180 day period, if
the County is able to identify a replacement tenant who fits the criteria set forth in the Warranty
Deed prior to the reversion of the Baseball Stadium site back to the City, the Govermnent Parties
agree to negotiate in good faith with such replacement tenant to enter into a new parking
agreement.
ARTICLE IV
DESIGN AND CONSTRUCTION OF PARKING FACILITIES
4.1 Design. The City shall manage and control the design of the Parking Facilities,
including the hiring of an architect (the "Parking Architect"), and their construction, (a) to
support a forty (40) -minute maximum empty time; (b) in conformity with (i) the Parking
Criteria, (ii) the terms of this Agreement and the other Stadium Agreements, (iii) the functional
requirements of the Baseball Stadium as contemplated in the Construction Administration
Agreement and the Operating Agreement, and (iv) Applicable Law; and (c) in a manner that is
architecturally harmonious with the Baseball Stadium and does not contain highly reflective
materials facing the Baseball Stadium ((a) -(c), the "Design Standards"). The Stadium Operator
Representative and the County Representative shall each have the right to review, comment upon
and approve each of the Parking Design Documents, provided such review and approval (1) shall
be limited to their confirmation that the applicable Parking Design Documents are in conformity
with the Design Standards, and (2) shall not otherwise be unreasonably withheld, conditioned or
delayed. The City shall deliver copies of each Parking Design Document, and any amendments
or modifications thereto, to the Stadium Operator Representative and the County Representative
promptly after they are prepared by the Parking Architect. Each of the Stadium Operator
Representative and the County Representative shall notify the City in writing, within ten (10)
Business Days after receipt of the applicable Parking Design Documents, if it objects to all or
any portion of any Parking Design Document for lack of conformity to the Design Standards. In
such event, the objecting Party shall provide to the City detailed comments setting forth the
reasons that it has determined that the applicable Parking Design Document is not generally
consistent in all material respects with the Design Standards. If, within such ten (10) Business
Day period, the Stadium Operator Representative or the County Representative do not properly
object to the Parking Design Document as set forth in this Section 4. 1, then the Stadium Operator
Representative or the County Representative (as applicable) shall be deemed to have approved
the applicable Parking Design Document. Similarly, if the Stadium Operator Representative and
the County Representative reject only certain specified elements in the applicable Parking
Design Document as non -conforming, then the elements to which they do not object shall be
deemed approved. If the City disagrees with any of the objecting Party's comments, the
objecting Parry and the City shall use good faith efforts to resolve any such objections and, if
applicable, revise the Parking Design Documents, in an expeditious manner so as not to delay the
production of the Parking Design Documents or the City Parking Project. The City shall cause
the Parking Architect to revise the applicable Parking Design Documents to address any
comments raised by the County Representative or Stadium Operator Representative with which
the City agrees and shall submit revised Parking Design Documents to the County
Representative and Stadium Operator Representative for their review and confirmation as
provided above. The County Representative and Stadium Operator Representative shall have
five (5) Business Days from the receipt of the revised Parking Design Documents to review and
approve them. The failure of the County Representative or Stadium Operator Representative to
respond within such five (5) Business Day period shall be deemed approval. If the objecting
Party and the City are not able to resolve any disagreements under this Section 4.1, either of
them may file for Expedited ADR pursuant to Section 10.2.
4.2 Parking Development Requirements.
(a) The City or the County, as applicable, shall expeditiously process all
applications for consents, approvals and permits necessary for the timely construction of the
Parking Facilities, which may include, if applicable, without limitation: (i) major use special
permit and any other special permits and/or special exception applications, (ii) road, alley, and/or
public right of way closure(s) and relocation petitions, (iii) re -platting petitions, including the
Replat, (iv) re -zoning or zoning variance applications, (v) Miami -Dade Department of
Environmental Resources Management and Miami -Dade Water and Sewer Department
approvals, (vi) petitions to relocate all public and private utilities, including, without limitation,
electric, gas, cable, telecommunication, water, sewer, and storm drainage facilities, located
within the City Parking Site to areas to be located outside the boundary of the City Parking Site,
and (vii) building permits (collectively, including (i) — (vii), the "Parking Develo ment
Requirements"). The City and the County shall each act reasonably to expedite any applications
for actions or approvals requested or required of them in connection with the permitting and
construction of the Parking Facilities to allow for the timely completion of the Parking Facilities.
The City and the County shall use reasonable and diligent efforts to issue and facilitate lawful
applications for permits, the consideration of which is a ministerial function, that are necessary
for the timely construction, occupancy and completion of the Parking Facilities.
(b) The City has confirmed via separate letter from its Zoning Administrator
and Director of Planning, respectively, that the proposed use of the Entire Site for the Parking
Facilities is consistent with the current zoning and the City's Comprehensive Land Use Plan for
the Entire Site.
4.3 (Omitted)
4.4 Construction Work. The City shall be responsible for managing, directing,
supervising, coordinating and controlling the City Parking Project (the "Work"), including the
matters addressed in Sections 4.1 through 4.3 and the continuous and orderly performance of all
aspects of the following:
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(a) retaining and managing the services of a construction manager and other
contractors and personnel needed to improve the Surface Lots, as agreed to by the Parties,
construct and equip the Parking Structures, and otherwise perform the Work in accordance with
the Parking Design Documents, the Parking Criteria and the Master Project Schedule;
(b) maintaining, or causing to be maintained, complete and accurate books
and records, consistent with industry standards, regarding the City Parking Project, including the
Parking Design Documents;
(c) taking all action reasonably required to comply with all Applicable Laws
and taking all reasonable action required to cause the Parking Architect and contractors to design
and construct the Parking Facilities in accordance with Applicable Laws;
(d) furnishing promptly to the Stadium Operator Representative and the
County Representative all documents and information required to be provided to them pursuant
to this Agreement and all other information within the City's possession or control relating to the
City Parking Project that the Stadium Operator Representative or the County Representative may
reasonably request (except to the extent such information may not be made available under
Applicable Law);
(e) notifying promptly the Stadium Operator Representative and the County
Representative of any suit, proceeding or action that is initiated or threatened in writing against
the City in connection with the City Parking Project;
(f) providing the Stadium Operator Representative and the County
Representative, upon the date of Parking Final Completion, with a record set of the Parking
Design Documents revised to show the "as -built" condition of the Parking Facilities and other
changes made during construction of the Parking Facilities;
(g) managing punch list and warranty work after Parking Substantial
Completion;
(h) providing the Stadium Operator Representative and the County
Representative with copies of any minutes prepared by the City or by its contractors that are
received by the City, with respect to all project meetings;
(i) causing the completion of the Parking Facilities in accordance with the
approved Parking Design Documents, the Design Standards, the Master Project Schedule and
this Agreement;
0) obtaining or causing to be obtained all permits necessary for construction
of the City Parking Project in accordance with Section 4.2;
(k) maintaining the Parking Premises construction site in safe condition,
properly secured at all times with security against unpermitted access;
(1) subject to Section 5.4(c), promptly causing the repair and restoration of
any portion of the Parking Facilities affected by a Casualty;
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(m) remediating, in accordance with any option available under applicable
environmental law, rules and regulations. including Chapter 24 of the Miami -Dade County Code,
any environmental contamination located on, in or under or originating from the portion of the
City Parking Site, provided, the City shall have no obligation to conduct remediation of any
environmental contamination pursuant to this Agreement to the extent such contamination does
not impact the Parking Facilities or the Public Infrastructure;
(n) supervising and coordinating, or using reasonable efforts to cause the
construction manager to supervise and coordinate, the construction of the Parking Facilities so
that the Parking Facilities are constructed, equipped, furnished and completed in a good and
workmanlike manner in accordance with this Agreement; and
(o) providing the Stadium Operator Representative and the County
representative quarterly progress reports of the status of the City Parking Project through each
design phase and the construction of the Parking Facilities.
4.5 Project Costs. The City shall pay all costs and expenses for the design,
development, construction, equipping and completion of the Parking Facilities, including (a) all
costs associated with any parking infrastructure required for the construction of the Parking
Facilities, (b) all amounts payable to the Parking Architect and contractors, (c) all permit fees
and other Parking Development Requirement fees and costs, (d) all costs to remediate (if
required) the City Parking Site for construction of the Parking Facilities as provided in Section
4.4(m), and (e) all costs to equip the Parking Premises consistent with the Parking Criteria.
4.6 Master Project Schedule. The City shall use reasonable best efforts to ensure that
the Work proceeds in accordance with the Master Project Schedule, subject to extensions
resulting from Force Majeure. The City shall cause Parking Substantial Completion to occur no
later than thirty (30) days prior to the Substantial Completion of the Baseball Stadium pursuant
to the Construction Administration Agreement, and Parking Final Completion to occur as soon
as practicable following Parking Substantial Completion. The Parking Facilities shall be
developed and constructed in a manner that will not delay or would reasonably be expected to
jeopardize Substantial Completion of the Baseball Stadium by the Targeted Completion Date or
the Public Infrastructure by the Substantial Completion Date referenced in the Master Project
Schedule. Notwithstanding anything contained in this Section 4.6, the Stadium Operator
acknowledges and agrees that in the event the staging of construction for the Baseball Stadium
interferes with or otherwise causes a delay in the City's construction of any of the Parking
Facilities, the construction schedules for the affected Parking Facility contained in the Master
Project Schedule shall be extended accordingly, provided that the City has provided the Stadium
Operator with prompt written notice of any such interference with or delay to the construction of
the relevant Parking Facility.
4.7 Right to Inspect and Receive Information. The Stadium Operator Representative
(including the Architect and Construction Manager under the Construction Administration
Agreement) and the County Representative shall be given an opportunity to inspect the
construction work and materials for the Parking Facilities as reasonably necessary to verify that
the work and materials are in general conformity with the Design Standards. The Stadium
Operator Representative and the County Representative shall receive in writing from the City,
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within ten (10) days of providing the City with written request thereof, information regarding the
progress of the City Parking Project through each design phase and the construction of the
Parking Facilities. During the construction of the Parking Facilities, the Stadium Operator
Representative and the County Representative shall receive advance notice of. and shall have the
right to attend, all scheduled meetings among the City and project contractors related to the City
Parking Project, and the right to inspect the Parking Facilities at all reasonable times, subject to
reasonable restrictions imposed by the City or construction manager. The City shall make itself
and the Parking Architect and contractors reasonably available to the Stadium Operator
Representative, the County Representative and their representatives throughout the duration of
the City Parking Project in order to keep the Stadium Operator Representative and the County
Representative reasonably informed throughout the duration of the City Parking Project. Any
rights that the Stadium Operator Representative, the County Representative and their
representatives have under this Section 4.7 shall not be the basis for any liability to accrue to
them from the City or any other Persons for such monitoring or investigation or for the failure to
have conducted such monitoring or investigation.
4.8 Number of Spaces. The City shall have the right to (a) replace spaces in Parking
Structures with spaces in Surface Lots on the City Parking Site; (b) reduce the number of spaces
in the Parking Structures to approximately 5,700; and/or (c) relocate the Surface Lots or any
parking spaces to be located within Surface Lots to other surface lots located outside of the City
Parking Site that are of comparable distance to the Baseball Stadium; provided that in no event
under (a) — (c) above shall the total number of spaces in the Parking Facilities (including any
surface lots and/or parking spaces located outside the City Parking Site as contemplated in clause
(c) above) be less than 5,500.
4.9 Liens. Provided that no Stadium Operator Default exists, the City shall use
commercially reasonable efforts to cause the Parking Facilities to be constructed in accordance
with the Parking Design Documents free and clear of any and all Liens except as otherwise
contemplated or permitted under this Agreement. In the event any such Lien is filed by the
Parking Architect, construction manager or any subcontractors or suppliers due to any act or
omission of the City and provided that no Stadium Operator Default exists, the City shall cause
said Lien to be discharged or transferred to appropriate bond within thirty (30) days of recording.
If the City does not discharge or transfer to appropriate bond any such Lien within thirty (30)
days of recording, the Stadium Operator shall have the right, but not the obligation, to cause the
Lien to be released by any means the Stadium Operator reasonably deems proper, including
payment of the Lien from project funds. The City shall have the right to contest any such Lien in
good faith and, so long as such contest does not result in the imminent loss or forfeiture of the
City's title to the Parking Facilities, the Stadium Operator shall take no actions permitted under
the preceding sentence.
ARTICLE V
OPERATION OF PARKING FACILITIES
5.1 Operation. Subject to Article VI and the other terms of this Agreement, the City
shall have the exclusive right, authority and responsibility to operate, manage, maintain and
control the Parking Facilities on a year-round basis. These rights and responsibilities include:
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(a) subject to Article VI with respect to Stadium Events, determining staffing
levels, scheduling hours of operation and establishing parking rates for the Parking Facilities;
(b) employing, terminating and supervising all personnel necessary for the
operation of the Parking Facilities, including cashiers, maintenance crews and security
personnel;
(c) procuring and entering into contracts for the furnishing of all utilities,
equipment, services and supplies necessary for the operation of the Parking Facilities;
(d) performing, or causing to be performed, all maintenance and repairs in
accordance with Section 5.4;
(e) maintaining or causing to be maintained all necessary, licenses, permits
and authorizations for the operation of the Parking Facilities; and
(f) operating the Parking Facilities in accordance with Applicable Law, the
Operating Standard attached hereto as Exhibit C (the "Operating_ Standard") and this Agreement.
5.2 Revenues. Except as provided in Article VI with respect to Stadium Events, the
City shall have the exclusive right to establish prices for, and to collect and retain, all parking
fees in the Parking Facilities.
5.3 Expenses. Except as expressly provided in Sections 6.1, 6.3(d) and 6.3(e), the
City shall be responsible for the payment of all expenses and taxes relating to the Parking
Premises and the ownership, use and operation thereof, including expenses and taxes arising
from or related to maintenance, repairs, insurance, utilities, event personnel, security and
cleaning services.
5.4 Maintenance and Repairs..
(a) The City shall keep the Parking Facilities in good maintenance and repair
in accordance with the Operating Standard.
(b) Subject to Section 5.4(c), if at any time after the Substantial Completion
Date, all or any part of the Parking Facilities shall be damaged or destroyed by a casualty of any
nature (a "Casually"), the City shall repair, restore, replace and/or rebuild (such work being
"Casualty Repair Work") the Parking Facilities as nearly as practicable to a condition that is at
least substantially equivalent to that existing immediately before the Casualty, with such changes
and alterations thereto as the City shall request and the Stadium Operator Representative shall
approve in accordance with substantially the same procedures set forth in Section 4.1. The
Casualty Repair Work shall commence not later than one hundred eighty (180) days after the
Casualty occurs, which time shall be extended (provided the City is proceeding with reasonable
diligence) by such reasonable time as is commensurate with any delays due to adjustment of
insurance, preparation of any necessary plans and specifications, bidding of contracts, obtaining
of all required approvals and events of Force Majeure. The Casualty Repair Work shall be
performed in accordance with Applicable Law.
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(c) Notwithstanding Section 4.4(1) or 5.4(b), if a Casualty also affects the
Baseball Stadium in a manner that results or may result in a termination of the Construction
Administration Agreement pursuant to Section 8.3(b) thereof or the Operating Agreement
pursuant to Section 1 1.2(c) or 11.4(a) thereof. the City shall have no obligation to undertake the
Casualty Repair Work if the Construction Administration Agreement or the Operating
Agreement is so terminated, or until the Construction Administration Agreement or Operating
Agreement may no longer be terminated under one of those sections.
5.5 Insurance. The City shall obtain and maintain, or shall cause to be obtained and
maintained, the insurance coverage for the periods of time during the Term as set forth in Exhibit
D.
5.6 Third Party Manager. The City may retain a third party with experience in the
management of large parking facilities (a "Parking Manager") to manage the Parking Facilities.
The City shall provide the Stadium Operator an opportunity to review and comment upon the
Request for Proposal for the Parking Manager (which the City and Stadium Operator agree will
include a requirement that the parties submitting proposals thereunder shall consider alternative
methods of payment for patrons, including payment by credit card) and shall provide the
Stadium Operator a voting seat on the evaluation committee that selects the Parking Manager.
The management agreement between the City and a Parking Manager shall expressly incorporate
and require the Parking Manager to adhere to the applicable terms of this Agreement. In
addition, the management agreement shall provide that the City may amend any provisions in the
management agreement, if necessary, in order to maintain the tax-exempt status of any bond
issued by the City for financing the construction of the Parking Facilities. Pursuant to the
management agreement, the City shall cause the Parking Manager to indemnify and agree to
defend the Stadium Operator Indemnitees, the Team Affiliates, the County and each of their
respective officers and employees from and against any Loss arising out of the actions or
omissions of the Parking Manager, its employees, contractors, agents or affiliates. All fees and
other amounts owing to the Parking Manager shall be paid by the City. The retention of a
Parking Manager shall not relieve the City of its obligations under this Agreement, and all
references to the "City" in this Agreement shall include the Parking Manager as appropriate.
ARTICLE VI
USE OF PARKING FACILITIES BY TEAM AFFILIATES
6.1 Team Reserved Parking. The Stadium Operator, the Team and their employees
and guests shall have exclusive use of two hundred -fifty (250) of the parking spaces in the
Parking Facilities, at no cost, on a twenty-four (24) hour per day, year-round basis throughout the
Term (the "Team Reserved Parking Spaces"). The Team Reserved Parking Spaces shall be
located in Parking Garages P1, P2 and/or P3, as determined by the Stadium Operator in its sole
discretion, provided that the Team Reserved Parking Spaces shall not be located on any Surface
Lots. The Team Reserved Parking Spaces shall be separately secured and the Stadium Operator
shall be responsible for paying all of the City's incremental costs incurred or requested by
Stadium Operator in separately securing the Team Reserved Parking Spaces, such as additional
fencing or security cameras. The Stadium Operator shall remit, or cause to be remitted, to the
City such incremental costs within ten (10) Business Days after receiving a reasonably detailed
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invoice from the City. The Stadium Operator shall separately provide and pay for any additional
security personnel or other services it requires for the Team Reserved Parking Spaces.
6.2 Stadium Event Parking.
(a) Subject to the scheduling priorities set forth in Section 5.2 of the
Operating Agreement, (i) the Team Affiliates and/or Major League Baseball, as applicable, and
their respective employees, guests, licensees and patrons, shall have prior and exclusive use of
all of the spaces in the Parking Facilities for all MLB Events, and (ii) the Team Affiliates and/or
the sponsors or promoters of Other Events, as applicable, and their respective employees, guests,
licensees and patrons, shall have prior and exclusive use of as many spaces in the Parking
Facilities as are projected to be needed and have been reserved for such Other Events by the
applicable Team Affiliate, sponsor or promoter in accordance with Section 6.2(b) below. All
parking made available for MLB Events and Other Events hereunder shall be made available
from two (2) hours prior to through at least two (2) hours following each such event.
(b) The Stadium Operator shall notify the City or the Parking Manager in
writing of the MLB Reserved Dates for each Operating Year no later than ten (10) Business
Days after the Team's schedule is finalized for that Operating Year. If the Stadium Operator
wishes to reserve the Parking Facility for any other Stadium Event, it shall deliver to the City or
the Parking Manager a written notice setting forth the date of such proposed Stadium Event at
least fourteen (14) days before contractually committing to the proposed Stadium Event. Such
notice shall be given in good faith and shall identify in reasonable detail the nature of the
Stadium Event, the start time for such Stadium Event, the projected number of parking spaces
and portions of the Parking Facilities that are projected to be used, any special security or other
staffing arrangements that are anticipated, and any other information reasonably necessary for
the City to perform its duties under this Agreement. The Stadium Operator shall promptly notify
the City or the Parking Manager if the scheduled date or start time of a Stadium Event is
changed; provided, however, no such notice from the Stadium Operator of a re -scheduled date or
start time shall in any event be given to the City or the Parking Manager less than fourteen (14)
days prior to the previously scheduled date of such Stadium Event. Notwithstanding the
foregoing, the Stadium Operator shall notify the City or the Parking Manager in writing at least
{fourteen (14)1 days prior to a scheduled Stadium Event, of the terms of admission to the Parking
Facilities (i.e., parking fees to be collected for non -prepaid parking spaces). Subject to the
scheduling priorities set forth in Section 5.2 of the Operating Agreement, the City shall reserve
the Parking Facilities for the exclusive uses contemplated under Section 6.2(a), and shall not
permit any other Persons to use the Parking Facilities with respect to MLB Reserved Dates and
other Stadium Events (except to the extent all of the spaces in the Parking Facilities are not
needed for such other Stadium Events) as to which it or the Parking Manager receives notice
under this Section 6.2(b).
6.3 Payments for Stadium Event Parkin.
(a) In addition to the Stadium Operator's obligation to pay the incremental
costs in separately securing the Team Reserved Parking Spaces under Section 6.1, as the sole
consideration payable by the Stadium Operator, the other Team Affiliates, Major League
Baseball, Other Event sponsors or promoters, and their employees, guests, licensees and patrons,
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for the use of the Parking Facilities pursuant to Sections 6.1 and 6.2 for all Stadium Events (other
than the Incremental Labor Costs of staffing the Parking Facilities for Stadium Events that are
not regular season MLB Home Games as set forth in Section 6.3(e) below), and the operating
and other obligations performed by or on behalf of the City under this Agreement, the Stadium
Operator shall pay, or cause to be paid, to the City an amount representing the purchase of the
Available Number of Parking Spaces for each regular season MLB Home Game played at the
Baseball Stadium in each Operating Year at the following price per space:
Years
Price
1 — 5
$10.03
6-10
$10.10
11-15
$10.20
16-20
$10.86
21 —25
$11.56
26 — 30
$12.29
31 —35
$12.53
For purposes of the foregoing, "Available Number of Parking Spaces" means the number of
parking spaces in the Parking Facilities actually made available to the Stadium Operator for
regular season MLB Home Games, after giving effect to Section 4.8. The Available Number of
Parking Spaces shall exclude the Team Reserved Parking Spaces and shall not exceed 5,750.
(b) If in any Operating Year there are fewer than eighty one (81) regular
season MLB Home Game played at the Baseball Stadium due solely to a strike or lockout of
MLB players, and one or more other Stadium Events are held at the Baseball Stadium in such
Operating Year at which customers pay the Stadium Operator for spaces in the Parking
Facilities, the Stadium Operator shall pay to the City the revenues it receives from those
customers in an amount not to exceed the per space amounts set forth in Section 6.3(a) until the
City has received the amount it would otherwise have received under Section 6.3(a) with respect
to the cancelled MLB Home Games. Such amounts shall not include the taxes or surcharges,
which the Stadium Operator is obligated to remit to the applicable taxing authorities under
Section 6.3(d) below and other direct expenses, and the Incremental Labor Cost payable to the
City under Section 6.3(e).
(c) The amounts due to the City under Sections 6.3(a) and (b) with respect to
each Operating Year shall be payable semi-annually on or before May 31 of such Operating Year
and November 30 following such Operating Year. Such amounts shall be payable without taxes
or surcharges, provided that this shall not limit the Stadium Operator's obligation to remit taxes
and surcharges to the applicable taxing authorities under Section 6.3(d) below. The prices in
Section 6.3(a) assume that the City is required to maintain a one (1) year debt service reserve for
the contemplated Parking Facility bond financing and that the City satisfies such reserve with a
surety. The City shall use best efforts to utilize such a surety, or to otherwise utilize a letter of
credit or similar financial instrument. If the City is nevertheless required to maintain a cash
reserve to satisfy this requirement, the prices in Section 6.3(a) shall be increased by the net
incremental cost of maintaining such cash reserve on a $44,000,000 portion of such Parking
Facility bonds (i.e., interest on any additional borrowings to fund the reserve, less earnings on
the reserves and the assumed surety rate). The City shall use best efforts to minimize any such
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incremental costs, including by maximizing the earnings on the reserves. provided that such
earnings may not exceed the interest rate on the Parking Facility bonds.
(d) The Team Affiliates or their designees shall determine the prices and other
ten -ns upon which the Parking Facilities will be made available to patrons for Stadium Events
(including regular season and post -season MLB Home Games and MLB Jewel Events) in their
sole discretion, and shall receive and retain all revenues derived therefrom. Such terms may
include higher or lower parking prices than those set forth in Section 6.3(a) above, and the
provision of free, discounted or prepaid parking passes for Stadium Events. The City shall honor
such parking passes without payment by the patrons. The City shall collect all parking revenues
payable at the Parking Facilities for Stadium Events as agent for the Stadium Operator in cash.
Except as provided in Section 6.3(g) below, all cash collections shall be deposited by the City on
the date of the Stadium Event or the next Business Day directly into an account designated by
the Stadium Operator. The Stadium Operator shall be responsible for all generally applicable
taxes and surcharges payable from all sales from which the Stadium Operator or the Team or any
Team Affiliate is paid the revenues. The amount of such taxes and surcharges shall be calculated
and paid by the Stadium Operator in accordance with generally Applicable Law. In connection
therewith, the Parties agree that the parking surcharge to be remitted by the Stadium Operator for
free, discounted or prepaid parking passes for regular season MLB Home Games shall be
calculated on an amount not less than the amount set forth in Section 6.3(a) above. Except as
provided herein, the City acknowledges that neither it nor the Parking Manager shall have any
right or interest in any parking revenue generated from Stadium Events or in any account or
funds held therein relating to such revenue.
(e) The Stadium Operator shall pay the Incremental Labor Costs of staffing
the applicable Parking Facilities for Stadium Events that are not regular season MLB Home
Games. The City and the Stadium Operator shall agree upon such staffing levels as set forth in
Section 6.4. The Stadium Operator shall remit, or cause to be remitted, to the City the
Incremental Labor Costs with respect to all such Stadium Events (that are not regular season
MLB Home Games) occurring during any calendar month within ten (10) Business Days after
receiving a reasonably detailed invoice following the end of such month. Except as provided in
this Section 6.3, none of the Team Affiliates or Major League Baseball shall be required to pay
for their use of the Parking Facilities for Stadium Events.
(f) The City shall maintain accurate and complete books and records,
compiled in a consistent manner, so as to permit an audit by the Stadium Operator of the parking
revenues relating to Stadium Events. The City shall retain such records for no less than three (3)
years. All such books and records shall be made available to the Stadium Operator within
twenty (20) days of the City's receiving written request from the Stadium Operator, for
inspection, copying and audit. The City shall implement appropriate entrance and exit controls
to calculate and compile entrance and exit data with respect to the number of vehicles entering
and exiting the Parking Facilities for Stadium Events. The City shall submit to the Stadium
Operator a preliminary report of such entrance and exit data and parking revenues within
twenty-four (24) hours, and a final report within two (2) business days, after each Stadium Event.
The Stadium Operator agrees that it shall be subject to and bound by the provisions of Chapter
35, Article IX of the City of Miami Code and other Applicable Law relating to the City's audit
rights.
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(g) Notwithstanding anything contained herein, the City shall have the
exclusive right to establish prices for, and to collect and retain, all parking fees for any and all
parking spaces that are not reserved by a Team Affiliate for Stadium Events pursuant to Section
6.2.
6.4 Staffing. With respect to Stadium Events, the City shall employ, at its cost
(except as provided in Section 6.3(e)), sufficient, qualified and well-trained (a) cashiers and other
personnel to allow for the shortest practicable entry and empty times; and (b) other personnel
consistent with the Operating Standard. The City and the Stadium Operator shall agree upon the
staffing levels for traffic control and security personnel prior to any Stadium Event. If the parties
are unable to agree despite their good faith efforts to do so, then the City shall decide the final
staffing levels for any regular season MLB Home Game and the Stadium Operator shall decide
the final staffing levels for all other Stadium Events, in each case consistent with the Operating
Standard. The City shall use reasonable efforts to cause Parking Facility personnel to perform
their duties in a courteous, professional and timely manner. All Parking Facility personnel shall
be deemed employees or agents of the City or the Parking Manager and shall not for any purpose
be considered employees or agents of the Stadium Operator or other Team Affiliates.
6.5 Soccer Stadium; Other Development. The City shall not provide or permit use of
the Parking Facilities by any owner or operator of a soccer team or soccer stadium (or its
employees, licensees, guests or patrons) at lower prices than those set forth in Section 6.3(a) or
on otherwise more favorable terms than those set forth in this Agreement, without the prior
written consent of the Stadium Operator; provided, however, that the City may impose on the
soccer team or soccer stadium a minimum space purchase requirement of less than 5,750 to
reflect a relatively smaller size and projected attendance at the soccer stadium. The City shall
not permit the use of Other Development that in any material respect interferes with the
operation of the Parking Facilities for MLB Events, or Other Events expected to have attendance
of at least 5,000 people.
6.6 Advertising Rights. Concessions and Promotional Rights.
(a) The Team Affiliates shall have the exclusive right to sell and enter into
agreements with respect to all Signage and advertising rights with respect to the Parking
Premises, on such terms and conditions as the Team Affiliates shall determine. The Stadium
Operator shall pay to the City 50% of all net revenues (i.e., revenues less fulfillment costs and
sales commissions, but excluding salary and benefits paid to the Team Affiliates' officers,
directors and employees) derived from such sales. Such payments shall be made together with
the payments by the Stadium Operator under Section 6.3(a). If any such sale is for non -monetary
consideration, the revenue from that sale shall be determined based on the fair market value of
such consideration. The revenue attributable to the Signage for purposes of this Section 6.6(a)
shall be based on the rate card for such Signage as approved by the City Representative. If the
City Representative has not approved of a rate card for such Signage, the Stadium Operator shall
not sell such Signage without the City Representative's prior consent, which shall not be
unreasonably conditioned, withheld or delayed.
(b) The Stadium Operator shall maintain accurate and complete books and
records, compiled in a consistent manner, of the net revenues payable to the City under Section
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6.6(a). The Stadium Operator shall retain such records for no less than three (3) years. All such
books and records shall be made available to the City Representative within twenty (20) days of
the Stadium Operator's receiving written request from the City Representative, for inspection,
copying and audit.
(c) The Stadium Operator shall be responsible for installing all Signage on the
Parking Premises resulting from sales under Section 6.6(a). The City shall permit the display of
all such Signage or other advertising sold by the Team Affiliates. Except as provided in Sections
6.6(d) below, the City shall not sell, authorize or permit any Signage or advertising in the
Parking Premises. Notwithstanding anything to the contrary in this Agreement, no Signage shall
promote tobacco, adult entertainment or guns.
(d) The provisions of Section 6.6(a) shall not apply to reasonable and
customary Signage placed in the Parking Facilities by retail tenants in the Other Development
with respect to themselves. Notwithstanding the foregoing, no such Signage may relate to a
business conducted by, or otherwise conflict with, any Major Sponsor; provided, however, that
no retail tenant in the Other Development that competes with a new Major Sponsor (i.e., a Major
Sponsor that enters into an agreement with a Team Affiliate or the Baseball Stadium following
the Team's first year in the Baseball Stadium) shall be required to terminate its agreement early
or to remove its competing advertising until the expiration of the term of its agreement; provided,
further, that no such agreement shall be renewable if it conflicts with a Major Sponsor at the time
of such renewal.
(e) Ambush Advertising shall be prohibited at the Parking Premises during
(and within two hours before and after) MLB Events, and Other Events expecting to have an
attendance of at least 5,000 people. "Ambush Advertising" means any promotions, contests or
other sponsorship activation activities directed at undercutting the value or impact of a
competitor's advertising signage or sponsorship at the Stadium Premises or the Soccer Stadium
(as defined in the Operating Agreement).
(f) Nothing in this Agreement shall limit the Team Affiliates' exclusive
ownership of, and rights to exercise and exploit, the Promotional Rights as set forth in the
Operating Agreement. Such exclusive exercise and exploitation shall extend to the Parking
Premises with respect to Stadium Events, and the City shall not exercise or exploit, or authorize
or permit the exercise or exploitation of, any such rights (e.g., the City shall not permit MLB
Home Games to be broadcast from the Parking Premises).
(g) The following uses shall not be permitted within the Parking Premises,
unless the Stadium Operator otherwise provides its prior written consent: (i) ticket brokerage
businesses (other than brokerage services provided by a Team Affiliate for Major League
Baseball games), (ii) retail businesses whose primary business directly competes with the
naming rights sponsors of the Baseball Stadium at the time the retail business is established at
the Parking Premises, (iii) QSRs (as defined in the Operating Agreement), (iv) portable or
temporary food, or the give-away of food or beverage, during the period from three (3) hours
before and one (1) hour after MLB Home Games, or other Stadium Events expected to have
attendance of at least 5,000 people, (v) the sale of beer in an outdoor bar (beer garden) within
one hour before MLB Home Games, or other Stadium Events expected to have attendance of at
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least 5,000 people, and (vi) the promotion and sale of baseball branded or themed memorabilia
and merchandise by persons other than a Team Affiliate, The City shall not permit the use of the
Parking Premises that in any material respect interferes with the operation of the Baseball
Stadium for MLB Home Games, or other Stadium Events expected to have attendance of at least
5,000 people.
ARTICLE VII
[Omitted]
ARTICT.F. VITT
DEFAULTS AND REMEDIES
8.1 Stadium Operator Default. Each of the following shall constitute a default by the
Stadium Operator hereunder (a "Stadium Operator Default"):
(a) If the Stadium Operator fails to pay or remit any amount payable by the
Stadium Operator under this Agreement and fails to cure the same within twenty (20) days after
written notice thereof to the Stadium Operator from the City.
(b) If the Stadium Operator shall breach any of the other covenants or
provisions in this Agreement and such failure is not cured within forty (40) days after written
notice thereof is given to the Stadium Operator by the City; provided, however, that if it is not
reasonably possible to cure such breach within such forty (40) -day period, such cure period shall
be extended for up to one hundred eighty (180) days following the giving of the original notice if
within forty (40) days after such written notice the Stadium Operator commences and thereafter
diligently pursues the cure.
8.2 Government Party Default.
8.2.1 Each of the following shall constitute a default by the City hereunder (a
"Lily Default"):
(a) If the City fails to pay or remit any amount payable by it under this
Agreement and fails to cure the same within twenty (20) days after written notice thereof to the
City.
(b) If the City shall breach any of the other covenants or provisions in
this Agreement and such failure is not cured within forty (40) days after written notice thereof is
given to the City; provided, however, that if it is not reasonably possible to cure such breach
within such forty (40) -day period, such cure period shall be extended for up to one hundred
eighty (180) days following the giving of the original notice if within forty (40) days after such
written notice the City commences and thereafter diligently pursues the cure.
8.2.2 Each of the following shall constitute a default by the County hereunder (a
"County Default"):
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(a) If the County fails to pay or remit any amount payable by it under
this Agreement and fails to cure the same within twenty (20) days after written notice thereof to
the County.
(b) If the County shall breach any of the other covenants or provisions
in this Agreement and such failure is not cured within forty (40) days after written notice thereof
is given to the County; provided, however, that if it is not reasonably possible to cure such
breach within such forty (40) -day period, such cure period shall be extended for up to one
hundred eighty (180) days following the giving of the original notice if within forty (40) days
after such written notice the County commences and thereafter diligently pursues the cure.
8.3 Remedies.
(a) Subject to complying with Article X with respect to matters that must be
resolved by arbitration or Expedited ADR, as applicable, the Government Parties may institute
litigation to recover damages or to obtain any other remedy at law or in equity (including specific
performance, permanent, preliminary or temporary injunctive relief, and any other kind of
equitable remedy) for any Stadium Operator Default.
(b) Subject to complying with Article X with respect to matters that must be
resolved by arbitration or Expedited ADR, as applicable, the Stadium Operator may institute
litigation to recover damages or to obtain any other remedy at law or in equity (including specific
performance, permanent, preliminary or temporary injunctive relief, and any other kind of
equitable remedy) for any City Default or County Default.
(c) Except with respect to rights and remedies expressly declared to be
exclusive in this Agreement or the other Stadium Agreements, the rights and remedies of the
Parties are cumulative and the exercise by any Party of one or more of such rights or remedies
shall not preclude the exercise by it, at the same or different times, of any other rights or
remedies for the same Default or any other Default.
(d) Any failure of a Parry to exercise any right or remedy as provided in this
Agreement shall not be deemed a waiver by that Parry of any claim for damages it may have by
reason of the Default.
(e) Notwithstanding anything to the contrary in this Agreement, the County
may only provide a notice of default and exercise remedies with respect to a breach by another
Party of a County Provision.
Notwithstanding anything to the contrary in this Agreement or the other Stadium Agreements, so
long as the County continues to perform its obligations under the Interlocal Cooperation
Agreement dated December 14, 2004, among the County, the City and the Miami Sports and
Exhibition Authority, as amended (the "MSEA Interlocal") even while in default under this
Agreement, any recovery of damages by the City against the County under this Agreement shall
be offset by any amounts the County is obligated to remit to the City pursuant to the MSEA
Interlocal. Alternatively, if the City elects to recover and is awarded damages against the
County which include the amount the County is obligated to remit to the City pursuant to the
MSEA Interlocal, the County shall be relieved of its funding obligations under the MSEA
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Interlocal as of the judgment date. Such proceeds from the recovery of damages shall be used
for the repayment of any outstanding Parking Facility bonds issued to fund the Parking Facilities.
8.4 Self -Help Remedies.
(a) If a court of competent jurisdiction or the arbitrators or the Neutral
pursuant to Article X has determined pursuant to a final judgment or award that a Stadium
Operator Default has occurred and such Stadium Operator Default is continuing, in addition to
any other remedy available to the Government Parties under this Agreement, the Government
Parties shall have the right, but not the obligation, to render the performance required to cure the
Stadium Operator Default.
(b) If a court of competent jurisdiction or the arbitrators or the Neutral
pursuant to Article X has determined pursuant to a final judgment or award that a City Default or
County Default has occurred and such Default is continuing, in addition to any other remedy
available to the Stadium Operator under this Agreement, the Stadium Operator shall have the
right, but not the obligation, to render the performance required to cure such Default.
8.5 Termination. Notwithstanding any other provision in this Agreement to the
contrary, this Agreement may not be terminated by any Parry (upon a Default or otherwise), and
each Party waives any right to terminate it may have at law or in equity, except (a) as provided in
Sections 3.3, and (b) this Agreement shall automatically terminate upon a termination of the
Construction Administration Agreement in accordance with its terms and with the consequences
set forth therein. Notwithstanding the foregoing, if this Agreement terminates as a result of a
termination of the Operating Agreement pursuant to Section 17.5.2(c) thereof, -then the City shall
have the right to institute litigation to recover damages or to obtain any other remedy at law or in
equity (including specific performance, permanent, preliminary or temporary injunctive relief,
and any other kind of equitable remedy) as if such termination would constitute a Stadium
Operator Default. Further, if the Construction Administration Agreement is terminated pursuant
to Section 11.1.4 of the Construction Administration Agreement, then each of the Parties who
are not in Default under the Construction Administration Agreement shall have the right to
institute litigation against the Defaulting Party to recover damages arising under this Agreement
or to obtain any other remedy available at law or in equity (including specific performance,
permanent, preliminary or temporary injunctive relief, and any other kind of equitable remedy)
relating to the Parking Facilities.
8.6 Exclusive Remedies. The rights and remedies conferred upon or reserved to the
Parties in this Article VIII are intended to be the exclusive remedies available to each of them
upon a breach or default by the other Parties, except as may be otherwise expressly set forth in
this Agreement or in any of the other Stadium Agreements.
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ARTICLE IX
INDEMNIFICATION
9.1 Indemnification by Stadium Operator.
(a) Except as otherwise provided in this Agreement or the other Stadium
Agreements, the Stadium Operator shall indemnify, defend and hold harmless the City and the
County and their respective officers, employees, attorneys, agents and instrumentalities
(collectively, "Government Indemnitees") from and against any and all losses, liabilities,
damages, suits, claims, judgments and expenses (including reasonable attorneys" fees)
(collectively, "Losses") incurred by a Government Indemnitee and caused by any of the
following occurring during the Term:
(i) any breach of this Agreement by the Stadium Operator; or
(ii) any negligence or willful misconduct of the Stadium Operator or
its contractors, employees or agents.
(b) Notwithstanding the provisions of Section 9.1(a), the Stadium Operator
shall not be required to indemnify for any Losses arising from or in connection with:
(i) any injury to or death of a Person or any damage to property
(including loss of use) to the extent caused by the negligence or willful act of any Government
Indemnitee or their respective representatives or contractors;
(ii) any violation by the City or the County of any provision of this
Agreement, any other Stadium Agreement or any Applicable Law or the insurance policies
referred to in Exhibit D;
(iii) any other matter for which the City or the County is obligated to
provide indemnification under this Agreement or any other Stadium Agreement; or
(iv) any Losses arising from or relating to a Force Majeure.
9.2 Indemnification by City and County.
(a) City does hereby agree to indemnify and hold harmless the Stadium
Operator and the Team (collectively, "Stadium Operator Indemnitees") to the extent and within
the limitations of Section 768.28 Fla. Stat., and subject to the provisions of that Statute whereby
the City shall not be held liable to pay a personal injury or property damage claim or judgment
by any one person which exceeds the sum set forth in said statute, or any claim or judgments of
portions thereof, which, when totaled with all other occurrences, exceeds the sum set forth in
said statute, from any and all personal injury or property damage claims, liabilities, losses and
causes of action arising from the same claim which may arise solely as a result of the negligence
of the City in connection with its rights and obligations under this Agreement. The City
expressly understands and agrees that any insurance protection required by this Agreement or
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otherwise provided by the City shall in no way limit the responsibility to indemnify, keep and
save harmless and defend the Stadium Operator Indemnitees as herein provided.
(b) The County does hereby agree to indemnify and hold harmless the
Stadium Operator Indemnitees to the extent and within the limitations of Section 768.28 Fla.
Stat., and subject to the provisions of that Statute whereby the County shall not be held liable to
pay a personal injury or property damage claim or judgment by any one person which exceeds
the sum set forth in said statute, or any claim or judgments of portions thereof, which, when
totaled with all other occurrences, exceeds the sum set forth in said statute, from any and all
personal injury or property damage claims, liabilities, losses and causes of action arising from
the same claim which may arise solely as a result of the negligence of the County in connection
with its rights and obligations under this Agreement. The County expressly understands and
agrees that any insurance protection required by this Agreement or otherwise provided by the
County shall in no way limit the responsibility to indemnify, keep and save harmless and defend
the Stadium Operator Indemnitees as herein provided.
(c) Notwithstanding the provisions of Sections 9.2(a) and (b), the Government
Parties shall not be required to indemnify for any Losses arising from or in connection with:
(i) any injury to or death of a Person or any damage to property
(including loss of use) to the extent caused by the negligence or willful act of the Stadium
Operator or any of its Affiliates or its representatives or contractors;
(ii) any violation by the Stadium Operator or its Affiliate of any
provisions of this Agreement, any other Stadium Agreement or any generally Applicable Law;
(iii) any other matter for which the Stadium Operator or its Affiliate is
obligated to provide indemnification under this Agreement or any other Stadium Agreement; or
(iv) any Loss arising from or relating to a Force Majeure.
9.3 Indemnification Procedures.
(a) If any Person entitled to indemnification pursuant to this Article IX (an
"Indemnified Party") shall discover or have actual notice of facts that have given rise, or which
may give rise to, a claim for indemnification under this Article IX, or shall receive notice of any
action or proceeding of any matter for which indemnification may be claimed (each, a "Claim"),
the Indemnified Parry shall, within twenty (20) days following service of process or other written
notification of such claim (or within such shorter time as may be necessary to give the Person
obligated to indemnify the Indemnified Party (the "Indemnitor") a reasonable opportunity to
respond to such service process or notice of claim), and within twenty (20) days after any other
such notice, notify the Indemnitor in writing thereof together with a statement of such
information respecting such matter as the Indemnified Parry then has; provided, however, the
failure to notify the Indemnitor shall not relieve the Indemnitor from any liability which it may
have to the Indemnified Parry except and solely to the extent that such failure or delay in
notification shall have adversely affected the Indemnitor's ability to defend against, settle or
satisfy any such Claim.
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(b) The Indemnitor shall be entitled, at its cost and expense, to contest or
defend any such Claim by all appropriate legal proceedings through attorneys of its own
choosing, provided the Indemnitor shall have first notified the Indemnified Party of its intention
to do so within twenty (20) days after its receipt of such notice from the Indemnified Parry. If
within twenty (20) days following such notice from the Indemnified Parry, the Indemnified Parry
has not received notice from the Indemnitor that such claim will be contested or defended by the
Indemnitor, the Indemnified Party shall have the right to (i) authorize attorneys satisfactory to it
to represent it in connection therewith and/or (ii) subject to the approval of the Indemnitor, which
approval shall not be unreasonably withheld or delayed, at any time settle, compromise or pay
such Claim, in either of which events the Indemnified Parry shall be entitled to indemnification
thereof as provided in this Article IX. These provisions in no way prevent the Indemnified Party
from taking whatever actions are necessary to defend the Claim during the time before the
Indemnified Party learns whether the Indemnitor will contest or defend the Claim. Attorneys'
fees and costs accrued by the Indemnified Party during this time are indemnifiable. If required
by the Indemnitor, the Indemnified Party shall cooperate fully with the Indemnitor and its
attorneys in contesting or defending any such Claim or, if appropriate, in making any
counterclaim or cross complaint against the Person asserting the Claim against the Indemnified
Party, but the Indemnitor will reimburse the Indemnified Party for any expenses reasonably
incurred by the Indemnified Parry in so cooperating.
(c) The Indemnitor shall pay to the Indemnified Parry in cash all amounts to
which the Indemnified Party may become entitled by reason of the provisions of this Article IX,
such payment to be made within thirty (30) days after such amounts are finally determined either
by mutual agreement or by judgment of a court of competent jurisdiction. Notwithstanding that
the Indemnitor is actively conducting a defense or contest of any Claim against an Indemnified
Party, such Claim may be settled, compromised or paid by the Indemnified Parry without the
consent of the Indemnitor; provided however that if such action is taken without the Indemnitor's
consent, its indemnification obligations with respect thereto shall be terminated and the
Indemnitor shall have no obligation to the Indemnified Party. The Indemnitor shall have the
right to settle, compromise or pay any Claim being defended by the Indemnitor without the
Indemnified Party's consent so long as such settlement or compromise does not cause the
Indemnified Parry to incur any present or future material costs, expense, obligation or liability of
any kind or nature, or require any admission or action or forbearance from action by the
Indemnified Party that would have a material adverse effect on the Indemnified Party.
(d) In the event any Claim involves matters partly within or partly outside the
scope of the indemnification by an Indemnitor hereunder, then the attorneys' fees, costs and
expenses of contesting or defending such Claim shall be equitably allocated between the
Indemnified Party and the Indemnitor. If a conflict of interest exists between the Indemnified
Party and the Indemnitor with respect to any Claim, the Indemnified Party shall have the right to
participate in the defense of such Claim with separate counsel chosen by the Indemnified Parry,
subject to the reasonable approval of the Indemnitor, and paid by the Indemnified Party.
9.4 Survival. The obligations contained in this Article IX will survive the expiration
or earlier termination of this Agreement but only with respect to an event that may give rise to a
Claim that in turn gives rise to a right of indemnification under this Article IX and which such
event occurs prior to such expiration or termination.
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ARTICLE X
ARBITRATION
10.1 Arbitration. Subject to Section 10.2, any dispute or controversy among the
Parties or their Affiliates arising under or with respect to this Agreement shall be resolved
exclusively by final and binding arbitration in the City of Miami before a panel of three
independent arbitrators under the auspices and pursuant to the rules of the American Arbitration
Association ("AAA"). Unless otherwise provided in this Agreement, the arbitration hearing
will be scheduled so that it is completed within sixty (60) days from the date of the filing of the
arbitration and a written award is rendered within forty-five (45) days from the date of such
completion. Arbitrators will be chosen from the AAA Large and Complex Case Panel of
Arbitrators except that none of the arbitrators shall have performed, directly or indirectly, a
material amount of work for the County, the City or a Team Affiliate within the five (5) -year
period immediately preceding the date of their selection or intend or desire to perform work for
the County, the City or a Team Affiliate within one (1) year following the date of their selection.
Issues determined by arbitration pursuant to this Section 10.1 shall be given preclusive or
collateral estoppel effect. The decision rendered by the arbitrators shall be final and conclusive
and binding upon the Parties. Judgment may be entered on the arbitrators' award in any court
having jurisdiction. Each Party shall bear its own attorneys' fees and costs relating to the
arbitration, but the costs and fees of the panel and the AAA shall be borne equally by the Parties
to the arbitration.
10.2 Expedited ADR.
(a) Disputes or deadlocks among any of the Parties arising under or with
respect to Article IV (each, an "Expedited ADR Dispute"), shall be submitted to expedited
alternative dispute resolution ("Expedited ADR") under this Section 10.2. The Parties have
mutually agreed to establish a panel ("Panel") of at least three (3) or more arbitrators (with the
lead Panel member to be reached by mutual agreement) qualified to resolve design and
construction -related contract disputes to be available to resolve Expedited ADR Disputes. The
Parties shall exchange proposed Panel compositions within ten (10) days following the effective
date of this Agreement and agree on the Panel (and the lead Panelist) within thirty (30) days
following the effective date of this Agreement. The arbitrator selected from the approved Panel
to resolve each Expedited ADR Dispute shall be designated as the Person (the "Neutral") to
whom Expedited ADR Disputes are to be submitted for resolution under this Section 14.2.
(b) The Neutral shall not have the power or authority to award any damages
or require any payments other than those described in the last paragraph of this Section 10.2.
There shall be no discovery permitted with respect to any Expedited ADR other than that
required by the Neutral and each of the Parties who is party to such Expedited ADR shall present
its position with respect to the issue(s) to be determined by such Expedited ADR by an oral
presentation to the Neutral. Each of the Parties who is party to such Expedited ADR shall be
given the opportunity to hear and orally respond to the others' presentations to the Neutral, and
to present documents to the Neutral in support of such Parry's position. The Neutral shall have
the right to limit the documents presented to the Neutral to assure a prompt resolution of the
issue(s) to be determined by the Neutral. The Parties who are party to such Expedited ADR may
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have their respective counsels present at such Expedited ADR, but there shall be no examination
or cross-examination of witnesses other than as required or permitted by the Neutral.
(c) The Parties shall use Expedited ADR exclusively, rather than litigation or
arbitration, as a means of resolving all Expedited ADR Disputes. The Expedited ADR will be
scheduled so that it is completed and a decision is rendered within twenty (20) days from the
date of the filing of the Expedited ADR Dispute, and, if requested by the Parties, a written award
is rendered within twenty (20) days of such completion. The written award by the Neutral shall
be the binding, final determination on the merits of the Expedited ADR Dispute, and shall
preclude any subsequent litigation or arbitration on such merits. The Parties agree that any
disputes that arise out of such a written award shall be resolved exclusively by Expedited ADR
pursuant to this Section 10.2, provided that the Parties may institute legal proceedings in a court
of competent jurisdiction to enforce judgment upon an Expedited ADR award in accordance with
generally Applicable Law. Each Party shall bear its own attorneys' fees and costs relating to the
Expedited ADR, but the costs and fees of the Neutral shall be borne equally by the Parties to the
Expedited ADR.
10.3 No Indirect Damages. In no event shall any party be liable under any provision
of this Agreement for any special, indirect, incidental, consequential, exemplary, treble or
punitive damages, in contract, tort or otherwise, whether or not provided by statue and whether
or not caused by or resulting from the sole or concurrent negligence or intentional acts of such
party or any of its affiliates or related parties. Notwithstanding the foregoing, this limitation of
liability shall not apply to any indemnification for third -party claims available at law or
pursuant to, and subject to the limitations in, Article IX. The preceding limitation shall not be
a basis for any claim or argument that a dispute should not be arbitrated.
ARTICLE XI
MISCELLANEOUS
11.1 Notices. Any notice, consent or other communication under this Agreement shall
be in writing and shall be considered given when delivered in person or sent by facsimile or
electronic mail (provided that any notice sent by facsimile or electronic mail shall
simultaneously be sent personal delivery, overnight courier or certified mail as provided herein),
one (1) Business Day after being sent by reputable overnight carrier, or three (3) Business Days
after being mailed by certified mail, return receipt requested, to the Parties at the addresses set
forth below (or at such other address as a Party may specify by notice given pursuant to this
Section to the other Parties):
If to the County:
To the attention of: County Manager
111 NW I st Street, Suite 2900
Miami, Florida 33128
Attn: George M. Burgess
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With a copy to: County Attorney
111 NW 1St Street, Suite 2810
Miami, Florida 33128
Attn: Robert A. Cuevas, Jr.
and Geri Keenan
If to the City:
To the attention of: City Manager
444 SW 2nd Avenue, 10th Floor
Miami, Florida 33130
Attn: Pedro G. Hernandez
With a copy to: City Attorney
444 SW 2nd Avenue, 9th Floor
Miami, Florida 33130
Attn: Julie O. Bru
and Olga Ramirez-Seijas
If to the Stadium Operator:
To the attention of: 2267 Dan Marino Boulevard
Miami, Florida 33056
Attn: David Samson
and Derek Jackson
With a copy to: Proskauer Rose LLP
1585 Broadway
New York, New York 10036
Attn: Wayne Katz
Notwithstanding the foregoing, periodic and ordinary course notices, deliveries and
communications between the Stadium Operator and the Government Representatives may be
given (and shall be considered given when provided) by any of the means set forth above, and to
the address provided by the Government Representatives to the Stadium Operator from time to
time.
11.2 Mercer Clause. This Agreement, including the schedules and exhibits to this
Agreement, and the other Stadium Agreements contain the sole and entire agreement among the
Parties and their Affiliates with respect to their subject matter, are fully integrated, and supersede
all prior written or oral agreements among them relating to that subject matter, including the
BSA. Except as specifically set forth in this Agreement and the other Stadium Agreements,
there shall be no warranties, representations or other agreements among the Parties or their
Affiliates in connection with the subject matter hereof or thereof.
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11.3 Amendment. This Agreement may not be amended or modified except in a
writing signed by the Parties affected by the amendment or modification, or except as otherwise
provided in this Agreement.
11.4 Bindina Effect. This Agreement shall be binding upon the Parties and their
respective successors and assigns, subject to the limitations on Transfer stated herein.
11.5 Waiver. Waiver by any Parry of any breach of any provision of this Agreement
shall not be considered as or constitute a continuing waiver or a waiver of any other breach of the
same or any other provision of this Agreement. Any waiver must be in writing and signed by all
Parties whose interests are being waived.
11.6 Nonrecourse Liability of Stadium Operator Personnel. Notwithstanding and
prevailing over any contrary provision or implication in this Agreement and except for their
criminal acts with respect to this Agreement (i.e., acts which would constitute crimes were they
prosecuted for and convicted of such acts), the officers, directors, partners, shareholders,
members, employees and agents of the Stadium Operator, the Team and the Team Affiliates (the
"Stadium Operator Personnel'') shall not in any way be liable under or with respect to this
Agreement; no deficiency or other monetary or personal judgment of any kind shall be sought or
entered against any of the Stadium Operator Personnel with respect to liability under or with
respect to this Agreement; no judgment with respect to liability under or with respect to this
Agreement shall give rise to any right of execution or levy against the assets of any of the
Stadium Operator Personnel; and the liability of the Stadium Operator under this Agreement
shall be limited to the assets of the Stadium Operator.
11.7 Non-Recourse Liability of City Personnel. Notwithstanding and prevailing over
any contrary provision or implication in this Agreement and except for their criminal acts with
respect to this Agreement (i.e., acts which would constitute crimes were they prosecuted for and
convicted of such acts), no member, elected or appointed official, officer, employee or agent of
the City (the "City Personnel") shall not in any way be liable under or with respect to this
Agreement to the Stadium Operator, or any successor in interest to the Stadium Operator; no
deficiency or other monetary or personal judgment of any kind shall be sought or entered against
any of the City Personnel with respect to liability under or with respect to this Agreement; and
no judgment with respect to liability under or with respect to this Agreement shall give rise to
any right of execution or levy against the assets of any of the City Personnel.
11.8 Non-Recourse Liability of County Personnel. Notwithstanding and prevailing
over any contrary provision or implication in this Agreement and except for their criminal acts
with respect to this Agreement (i.e., acts which would constitute crimes were they prosecuted for
and convicted of such acts), no member, elected or appointed official, officer, employee or agent
of the County (the "County Personnel") shall not in any way be liable under or with respect to
this Agreement to the Stadium Operator, or any successor in interest to the Stadium Operator; no
deficiency or other monetary or personal judgment of any kind shall be sought or entered against
any of the County Personnel with respect to liability under or with respect to this Agreement; and
no judgment with respect to liability under or with respect to this Agreement shall give rise to
any right of execution or levy against the assets of any of the County Personnel.
29
11.9 Assignment.
(a) The Stadium Operator shall not sell, assign, convey, transfer, pledge or
otherwise dispose of voluntarily or involuntarily (each, a "Transfer") this Agreement or any of
its rights under this Agreement without the prior written consent of the City; provided, however,
that the Stadium Operator may, without the prior written consent of the City or any other
Governmental Authority:
(i) Transfer all of its rights hereunder to any Person (or Affiliate of
any Person) that acquires directly or indirectly the controlling interest in the Team or the Major
League Baseball franchise owned by the Team with the approval of Major League Baseball,
provided that (A) such transferee executes and delivers to the City its agreement, in form and
substance reasonably satisfactory to the City, to assume all of the obligations of the Stadium
Operator under this Agreement and to keep and perform all provisions of this Agreement, and
(B) such transferee or its Affiliates assume all of the other obligations of the Stadium Operator
and its Affiliates under the other Stadium Agreements;
(ii) Transfer any of all of its rights hereunder to the Team and/or one
or more Team Affiliates; and
(iii) pledge or collaterally assign any or all of its rights hereunder to
any provider, guarantor or insurer of financing to the Stadium Operator or its Affiliates, provided
that such pledge or collateral assignment shall not relieve the Stadium Operator of its obligations
under this Agreement. The provisions of Section 14.8 of the Operating Agreement shall apply to
this Agreement as if contained herein.
(b) The Stadium Operator shall be relieved of its obligations under this
Agreement from and after the date of a Transfer pursuant to Section 11.9(a)(i) or (ii) above.
(c) Other than a transfer by the City to MPA, the City and the County shall not
Transfer this Agreement or any of their rights hereunder, and the City shall not Transfer its ownership of
the Parking Premises, without the prior written consent of the Stadium Operator. Any transfer to the
MPA shall not relieve the City of its construction obligations under this Agreement.
(d) Any Transfer or attempted Transfer by a Party in violation of this Section
11.9 shall be void.
11.10 Consent of Parties.
Whenever in this Agreement the consent or approval of any Party is required, such
consent or approval: (i) shall not be unreasonably or arbitrarily withheld, conditioned or delayed
unless specifically provided to the contrary in this Agreement; (ii) shall not be effective unless it
is in writing; and (iii) shall apply only to the specific act or transaction so approved or consented
to and shall not relive the other Parties of the obligation of obtaining the consenting Party's prior
written consent or approval to any future similar act or transaction. Notwithstanding anything
contained in this Agreement, in the event a consent or approval is required, by generally
Applicable Law, to be granted by the Commission or Board, then such consent or approval shall
be subject to the Commission's or Board's standard process of review.
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I 1.11 Party Representatives.
(a) The County Manager for his designees (the "County Representative')
shall act as liaison and contact person between the Stadium Operator and the County in
administering and implementing the terms of this Agreement. The City Manager for his
designee} (the "City Representative' and, together with the County Representative, the
"Government Representatives") shall act as liaison and contact person between the Stadium
Operator and the City in administering and implementing the terms of this Agreement. The
County Manager and City manager shall notify the other Parties in writing if they designate (or
re -designate) another individual to serve as County Representative or City Representative,
respectively. Each of the County Representative and the City Representative shall have the
power, authority and right, on behalf of the County and City, respectively, and without any
further resolution or action of the Board or Commission, to:
(i) review, approve and consent, in writing, to documents and requests
required or allowed by the Stadium Operator to be submitted to the Government
Representative(s) pursuant to this Agreement;
(ii) consent to and approve, in writing, actions, events and
undertakings by the Stadium Operator or other Persons for which consent and/or approval is
required from the Government Representatives(s);
(iii) make appointments, in writing, of individuals or entities required
to be appointed or designated by the Government Representative(s) in this Agreement;
(iv) sign any and all documents on behalf of the County and/or City, as
the case may be, necessary or convenient to the foregoing approvals, consents and appointments;
and
(v) grant written time extensions that extend deadlines or time periods
up to 180 days, and that do not otherwise materially affect the rights or obligations of the
County or City, as the case may be, under this Agreement.
However, nothing contained herein shall preclude the County Representative and the City
Representative from seeking Board and/or Commission approval for the delegated authority
contained in 11.11(a)(i)-(v). In addition, and notwithstanding any of the foregoing, the
Government Representatives shall be required to seek Board and/or Commission approval, as
applicable, for any approvals, consents, actions, events or undertakings by any Party or any other
third parties that would violate, alter, or ignore the substantive provisions of this Agreement, or
that would create a financial obligation, cost, or expense to the County and/or the City that is
greater than the delegated procurement authority of the County Mayor or City Manager, as set
forth in the applicable County and City Charters, County and City Codes, and any related
administrative or implementing orders. Any consent, approval, decision, determination or
extension under this Agreement by the County Representative or the City Representative shall be
binding on the County and the City, respectively. The Stadium Operator and any other Person
dealing with the County or City in connection with this Agreement or any matter governed by
this Agreement may rely and shall be fully protected in relying upon the authority of its
31
Government Representative to act for and bind the County and City, as the case may be, in any
such matter. The County and City shall cause its Government Representative to comply with all
of the provisions of this Agreement.
(b) The President of the Stadium Operator or his designee (the "Stadium
Operator Representative') shall act as liaison and contact person between the Stadium Operator,
on the one hand, and the County and/or the City, on the other hand, in administering and
implementing the terms of this Agreement. The President of the Stadium Operator shall notify
the other Parties in writing if he designates (or re -designates) another individual to serve as
Stadium Operator Representative. The Stadium Operator Representative shall have the power,
authority and right, on behalf of the Stadium Operator, and without any further resolution or
action of the Stadium Operator to:
(i) review, approve and consent to documents and requests required or
allowed by the Government Representative(s), the County and/or the City, as the case may be, to
be submitted to the Stadium Operator pursuant to this Agreement;
(ii) consent to and approve actions, events and undertakings by the
Government Representatives(s), the County and/or the City, as the case may, or other Persons for
which consent and/or approval is required from the Stadium Operator;
(iii) make appointments of individuals or entities required to be
appointed or designated by the Stadium Operator in this Agreement;
(iv) sign any and all documents on behalf of the Stadium Operator
necessary or convenient to the foregoing approvals, consents and appointments; and
(v) grant waivers and enter into amendments to this Agreement.
Any consent, approval, decision, determination, waiver or amendment under this Agreement by
the Stadium Operator Representative shall be binding on the Stadium Operator. The
Government Parties and any other Person dealing with the Stadium Operator in connection with
this Agreement or any matter governed by this Agreement may rely and shall be fully protected
in relying upon the authority of the Stadium Operator Representative to act for and bind the
Stadium Operator in any such matter. The Stadium Operator shall cause the Operator Stadium
Representative to comply with all of the provisions of this Agreement.
11.12 Headings. The headings in this Agreement are included for convenience and
identification only and are in no way intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or of its provisions.
11.13 General Interpretive Provisions. Whenever the context may require, terms used in
this Agreement shall include the singular and plural forms, and any pronoun shall include the
corresponding masculine and feminine forms. The term "including", whenever used in any
provision of this Agreement, means including but without limiting the generality of any
description preceding or succeeding such term. Each reference to a Person shall include a
reference to such Person's successors and assigns. All references to "Articles", "Sections",
"Schedules" or "Exhibits" shall be references to the Articles, Sections, Schedules and Exhibits to
32
this Agreement, except to the extent that any such reference specifically refers to another
document. Each of the Parties has agreed to the use of the particular language of the provisions
of this Agreement and any questions of doubtful interpretation shall not be resolved by any rule
or interpretation against the draftsman.
11.14 Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under Applicable Law, but if any
provision of this Agreement is held to be prohibited by or invalid under generally Applicable
Law, the parties to this Agreement shall, to the extent possible, negotiate a revised provision
which (a) complies with generally Applicable Law, (b) does not alter any of the substantive
rights, obligations or liabilities of any Party under this Agreement or any other Stadium
Agreement, and (c) confers upon the Parties the benefits intended to be conferred by the invalid
provision; and the remaining provisions of this Agreement, if capable of substantial performance,
shall be enforced as if this Agreement was entered into without the invalid provision.
11.15 Further Assurances. The Parties, whenever and as often as each shall be
reasonably requested to do so by another Party, shall execute or cause to be executed any further
documents and take any further actions as may be reasonably necessary or expedient in order to
consummate the transactions provided for in, and to carry out the purpose and intent of, this
Agreement and each of the other Stadium Agreements. The City shall assist and cooperate with
the Stadium Operator and its Affiliates in connection with their financing activities, including by
executing such documents as the Stadium Operator or its Affiliates may reasonably request to
facilitate such financings.
11.16 Absence of Third -Party Beneficiaries. Except for the Team Affiliates, nothing in
this Agreement, express or implied, is intended to (a) confer upon any Person other than the
Parties and their permitted successors and assigns any rights or remedies under or by reason of
this Agreement as a third -party beneficiary or otherwise except as specifically provided in this
Agreement; or (b) authorize anyone not a Party to maintain an action pursuant to or based upon
this Agreement.
11.17 Governing Law. This Agreement and the interpretation of its terms shall be
governed by the laws of the State, without application of conflicts of law principles. Venue for
any judicial, administrative or other action to enforce or construe any term of this Agreement or
arising from or relating to this Agreement shall lie exclusively in Miami, Florida.
11,18 Time of Essence. Time is of the essence with respect to the performance of each
of the covenants and obligations contained in this Agreement.
11.19 Relationship of Parties. No partnership or joint venture is established among the
Parties under this Agreement. Except as expressly provided in this Agreement, no Party or its
officers, elected or appointed officials, employees, agents, independent contractors or consultants
shall be considered employees or agents of any other Party or to have been authorized to incur
any expense on behalf of any other Party or to act for or to bind any other Party. No Party shall
be liable for any acts, omissions or negligence on the part of the other Parry or their employees,
officials, agents, independent contractors, licensees and invitees.
33
11.20 Sovereign Rights. The City and the County retain all of their respective sovereign
prerogatives and rights as a city or county under State law with respect to the City Parking
Project and the operation of the Parking Facilities, respectively. It is expressly understood that
notwithstanding any provisions of this Agreement and the Stadium Agreements and the City's or
the County's status thereunder:
(a) The City and the County retain all of its respective sovereign prerogatives and rights
and regulatory authority (quasi-judicial or otherwise) as a city or a county under State law and
shall in no way be estopped from withholding or refusing to issue any approvals of applications
for building, zoning, planning or development under present or future laws and regulations
whatever nature applicable to the planning, design, construction and development of the Parking
Facilities or the operation thereof, or be liable for the same; and
(b) any City or County covenant or obligation that may be contained in this Agreement
shall not bind the Board, the County's Planning and Zoning Department, Miami -Dade
Department of Environmental Resources Management, the Commission or any other City,
County, federal or state department or authority, committee or agency to grant or leave in effect
any zoning changes, variances, permits, waivers, contract amendments, or any other approvals
that may be granted, withheld or revoked in the discretion of the City, the County or other
applicable governmental agencies in the exercise of its police power.
11.21 Force Maieure. Except as otherwise herein expressly provided, if any Party shall
be delayed in the performance of any covenant or obligation hereunder (other than any covenant
or obligation to pay money), as a result of any Force Majeure, then the performance of such
covenant or obligation shall be excused for the period of such delay and the period for the
performance of such covenant or obligation shall be extended by the number of days equivalent
to the number of days of the impact of such delay. In response to and during any delay caused
by a Force Majeure, the Parties shall at all times act diligently and in good faith to bring about
the termination or removal of the Force Majeure as promptly as reasonably possible and any
Parry seeking an excuse of performance due to such Force Majeure shall work diligently and in
good faith to reduce or eliminate any damage, cost or delay caused by such Force Majeure.
11.22 Major League Baseball Reguirements. Notwithstanding any other provision of
this Agreement, except for the last sentence in this Section, the obligations of the Stadium
Operator under this Agreement shall in all respects be subordinate to the approval requirements
and other Baseball Rules and Regulations as they are applied generally to all Major League
Baseball clubs. The City and the County agree not to seek an injunction or similar relief against
Major League Baseball to enjoin its implementation of the Baseball Rules and Regulations. In
the event that any act or omission taken by the Stadium Operator to comply with Baseball Rules
and Regulations materially affects the rights of the City or the County under this Agreement or
deprives the City or the County of the essential benefits of this Agreement, the Parties will work
in good faith to amend the terms of this Agreement to neutralize the effect. The Stadium
Operator agrees in any event that if compliance by it with Baseball Rules and Regulations results
in a failure of the Stadium Operator to fulfill its obligations under this Agreement, the City and
the County may enforce remedies for the Stadium Operator's failure to fulfill its obligations as
provided in this Agreement and the other Stadium Agreements.
34
11.23 Mutual Covenants.
(a) The Parties, whenever and as often as each shall be reasonably requested
to do so by another Party or by the Team, shall execute or cause to be executed any further
documents and take any further actions as may be reasonably necessary or expedient in order to
consummate the transactions provided for in, and to carry out the purpose and intent of, this
Agreement and each of the other Stadium Agreements, except to the extent such actions by the a
Government Party requires approval by the Board or the Commission, as applicable.
(b) No Parry shall tenninate this Agreement on the ground of ultra vires acts
or for any illegality or on the basis of any challenge to the enforceability of this Agreement,
except as otherwise permitted in this Agreement or in the other Stadium Agreements. Subject to
the preceding sentence, no such challenge may be asserted by any Party except by the institution
of a declaratory action in which the Parties and the Team are parties.
(c) Each Party shall vigorously contest any challenge to the validity,
authorization or enforceability of this Agreement (a "Challenge"), whether asserted by a
taxpayer or any other Person, except where to do so would be deemed by such Party as
presenting a conflict of interest or would be contrary to Applicable Law. The applicable Party
shall pay all of the legal fees, costs and other expenses incurred by it in contesting the Challenge.
The applicable Party shall consult with the Parties in contesting any Challenge. The Parties shall
take all ministerial actions and proceedings reasonably necessary or appropriate to remedy any
apparent invalidity, lack or defect in authorization, or illegality, or to cure any other defect,
which has been asserted or threatened. However, the County or City, shall not be obligated to
take any action which requires approval of the Board or Commission, as the case may be, or
which is deemed by the County or City to present a conflict of interest or is deemed by the
County or City to be contrary to Applicable Law.}
(d) In exercising its rights and fulfilling its obligations under this Agreement,
each Party shall act in good faith. Notwithstanding the foregoing, each party acknowledges that
in each instance under this Agreement where a Party is obligated to exercise good faith, to use
good faith efforts or to use diligent reasonable efforts or other similar efforts, such Party shall not
be required to expend any funds, or grant any other consideration of any kind, in the performance
of such undertaking, and each Party further acknowledges that the obligation of any Party to act
in good faith, undertake good faith efforts, or to use diligent reasonable efforts or other similar
efforts does not constitute a warranty, representation or other guaranty that the result which the
Parties are attempting to achieve will be successfully achieved and no Party shall be liable for
any failure to achieve the result or results intended so long as the Party has complied with its
obligation to act in accordance with the applicable standard.
11.24 Anti -Discrimination Clause. In accordance with Applicable Law, the Parties
shall not discriminate against any person or group of persons on the basis of race, sex, religion,
national or ethnic origin, age or disability.
11.25 Valid Agreement. Each Government Party agrees for the benefit of the Stadium
Operator that the Stadium Operator shall have the right to collect damages and otherwise enforce
this Agreement against such Government Party with respect to any breach of this Agreement by
35
such Government Party, including for any third party claims against the Stadium Operator
arising from any breach of this Agreement by a Government Party.
11.26 Books and Records: Audit. The Stadium Operator shall keep and maintain all
books, records and documents of all kinds in any way related to the Stadium Operator's rights
and obligations under this Agreement, separate and identifiable from its other books, records
and documents, and shall make such books and records available to the City for inspection,
copying and audit, in accordance with Applicable Law.
11.27 County Inspector General and Commission Auditor. The attention of the Parties
is hereby directed to Section 2-1076 of the County Code establishing the Miami -Dade County
Office of the Inspector General (the "OIG"), which has the authority and power to investigate
County affairs and review past, present and proposed County programs, accounts, records,
contracts and transactions. The OIG contract fee shall not apply to this Agreement or any other
Stadium Agreement, and the City and the Team Affiliates shall not be responsible for any
expense reimbursements or other amounts payable to the OIG or its contractors. The attention of
the Parties is hereby directed to Section 2-481 of the County Code related to the Commission
Auditor.
11.28 Counterparts. This Agreement may be executed in any number of counterparts
with the same effect as if all Parties had executed the same document. All counterparts shall be
construed together and shall constitute one instrument.
With respect to the County Provisions only:
CITY OF MIAMI, FLORIDA MIAMI-DADE COUNTY, FLORIDA
By:
Pete Hernandez
City Manager
City of Miami
ATTEST:
By:
City Clerk
APPROVED AS TO FORM
AND CORRECTNESS:
City Attorney
By:
George M. Burgess
County Manager
Miami -Dade County
ATTEST:
By:
Clerk of the Board
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY:
County Attorney
MARLINS STADIUM OPERATOR, LLC APPROVED AS TO INSURANCE
REQUIREMENTS:
By: By:
Name: Name:
Title: Risk Management Director
37
Exhibit List
Exhibit A — Entire Site, Baseball Stadium Site and City Parking Site
Exhibit B — Parking Criteria
Exhibit C — Operating Standard
Exhibit D — Insurance
{FS484442;15}
0255/48633-016 Current/110906600
0255/48633-016 Current/1327B51242
Baseball Stadium Site/ Citi Parking Site
M
I A M I B A L L P A R
K
0
WK
21 JANUARY 2009
BASEBALL STADIUM SITE, PARKING FACILITIES
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EXHIBIT B
PARKING CRITERIA
General
Approximately 5,713 parking spaces available for the Baseball Stadium, located within
the Entire Site, which comprise of approximately 4,744 spaces in four (4) parking
structures and 969 spaces in six (6) surface lots with the following allocation:
Description
Structured Parking Garages:
P 1: Located to the East of the building that is located at the S/E corner of
NW 7th Street and NW 16th Avenue.
Approximate number of spaces: 928
Number of levels: 5
Approximate total parking area: 354,700 sq. ft.
Approximate height to top tier: 47 ft.
Width of typical spaces: 9'0" on first five levels.
P2: Located at S/W corner of NW 7th Street and NW 14th Avenue.
Number of levels: 5
Approximate number of spaces: 1,316
Approximate total parking area: 495,700 sq. ft.
Approximate height to top tier: 47 ft.
Width of typical spaces: 9'0" on first five levels.
P3: Located at N/E corner of NW 3rd Street and NW 16th Avenue.
Number of levels: 6
Approximate number of spaces: 1,226
Approximate total parking area: 480,400 sq. ft.
Approximate height to top tier: 54 ft.
Width of typical spaces: 9'0" on first six levels.
Page 1 of 3
P4: Located at N/W corner of NW.) Street and NW 14th Avenue.
Number of levels: 6
Approximate number of spaces: 1.274
Approximate total parking area: 491,400 sq. ft.
Approximate height to top tier: 54 ft.
Width of typical spaces: 9'0" on first six levels.
Surface Lots:
A total of six (6) lots, three (3) lots located West of NW 16th Avenue between NW 4th
Street and NW 7th Street, and three (3) lots located East of NW 14th Avenue between NW
3`d Street and NW 6th Street.
Approximate number of spaces: 969
Design Criteria
• Approximately 5,700 to 6,000 parking spaces located within the Entire Site.
• Design should be governed as "event" style parking structure (ability to support large
events).
• All ADA spaces to be located on grade level of each structured parking garage.
• Design to support a 40 -minute exit time at capacity.
a) Plan for one exit lane for every 400/450 cars.
b) Ramps strategically located to accommodate required exiting time.
c) Build number of stairs and elevators to support the exiting criteria.
• Develop building edges that compliment the architecture of the neighborhood and the
ballpark with approximately 15 feet sidewalks.
• Design Parking Facilities to support the Baseball Stadium in achieving certification via
the Sustainable Buildings Program (i.e.: space for Alternative Fuel and Low Emissions
Vehicles, provision for charging stations for electric vehicles (empty conduits) and space
allocated for carpool vehicles, dedicated area for bicycles in one or more structured
parking garage).
• Vehicular Entrance/Exit points cannot be placed on either 4th Street or 6th Street. These
streets will be closed on game days.
• Lobbies to provide clear vertical circulation and to be focal points of the structure.
• Integrate parking access control system for baseball games, other events and non event
days (i.e. ticket dispensers for other events and non -game days).
Page 2 of 3
• Two-way traffic flow with 90 degree parking; or One -way traffic flow with 60/75 degree
parking at the option of the City.
• Minimum 60' parking bays, aisle widths of 24', 9' by 18' parking stalls on all levels of
each structured parking garage lot on the North and South side.
• All surface lots will consist of 9' by 18' parking stalls with markers for each stall (except
for W3).
• For surface lots, except for W3, the minimum drive aisle will be 20' and all drive aisle
will be paved, subject to zoning and code compliance.
• First floor must clear height of 12' to meet ADA standards.
• Ramp parking cannot exceed a 6% slope while speed ramps cannot exceed a 13% slope.
• Specifications for elevators in structured parking garages:
a) Ratio of 2 elevators for the first 500 parking spaces, 1 for every 500 spaces
thereafter;
b) Minimum of 3,000 lb capacity.
• Safety and security requirements:
a. Well lit, and well distributed lighting systems including perimeter lighting
(average of 40 foot candles at entrance, exits, stairs, and elevator lobbies,
average of 10 foot candles at driving sites);
b. Provisions (empty conduit) for "Call for assistance" stations with blue
lights, located at pertinent locations on each floor, including at the end of
parking aisles, in front and inside of elevators, in lobbies and stairs;
c. Provisions (empty conduit) for CCTV at entrances/exits to and from the
facility, elevator lobbies, and security office;
d. Concrete filled steel pipe bollards and curbs to protect equipment.
Page 3 of 3
EXHIBIT C
OPERATING STANDARD
General:
The Parking Facilities shall be operated as "event parking" (in a manner that
allows the ingress and egress of a large volume of cars in a short period of time in a
safe and efficient manner) in accordance with other comparable sports facilities
with adjacent parking.
All parking spaces in each Parking Facility will be individually numbered
with a distinct numbering system from other Parking Facilities. Each season ticket
parking pass will be associated with a specific Parking Facility (or portion thereof),
as designated by the Stadium Operator. All Parking Facilities will be individually
named and clearly identified for patrons to easily return to their vehicles after
Stadium Events.
Staffing:
Personnel Standards: The City will hire qualified and well-trained personnel
to operate the Parking Facilities efficiently and to assure collection, security, and
reconciliation of revenues, with emphasis on customer service. All personnel will
treat patrons in a courteous, professional and timely manner. All employees will
wear a uniform so as to present a neat, clean and professional appearance at all
times.
Types of Personnel: The City will provide sufficient personnel to operate,
maintain and secure the Parking Facilities, including the following:
• Cashiers/Parking attendants to control access at entries and collect
fees and/or passes to allow for the fastest entry and empty times;
• Supervisor and cashiers to reconcile cash and passes with number of
parked cars at the end of each event;
• Supervisors to generally assist with ingress and egress from the
parking facility in an orderly and efficient manner;
• Custodial personnel to clean i) the Parking Facilities before each
Stadium Event, ii) stairs, lobbies and the elevators before each
Stadium Event and as required during and after Stadium Events.
Trash will be removed before each Stadium Event and dumpster areas
will be sanitized as required;
• Security personnel to ensure i) patrons can access and exit the
Parking Facilities in a safe manner, ii) no unauthorized person is
present in or around the Parking Facilities, and iii) elevators are
functioning, and the stairwells and Parking Facilities are lighted
adequately. Security to periodically circulate the Parking Facilities to
Pagel of 3
prevent theft and vandalism and to assist patrons with disabled
vehicles.
Staffing Levels: The City shall consult with the Stadium Operator with
respect to its staffing levels from time to time, and at least prior to each home stand
of MLB Home Games. If the parties are unable to agree to staffing levels for MLB
Home Games, the City shall decide the final staffing levels, which shall not be less
than the minimum staffing levels with respect to MLB Home Games:
Cashiers/Parking Attendants
Directors
Custodial Personnel
Security Personnel
Custodial:
26 (5 per structured lot; 1 per surface lot)
44 ( for each structured lot: 2 per floor on
first 3 floors, 2 for upper floors; 2 per
surface lot)
6 (1 per structured lot; 1 for each of East
and West surface lots)
8 during MLB Home Games (2 for each of
the structured lots, and roving in the
surface lots)
The Parking Facilities, including their entrances, elevators, stairwells, aisles
and ramps, will be kept in a clean condition at all times, free of odors, debris and
trash.
Maintenance and Repairs:
The City shall keep the Parking Facilities in good maintenance and proceed
with repairs as needed, including by procuring all work, labor and materials
necessary to (a) maintain the Parking Facilities in good, clean, working order, (b)
maintain the surfaces and striping of the Parking Facilities in good condition, (c)
promptly repair or restore equipment, fixtures and other components of the Parking
Facilities as a result of ordinary wear and tear or casualty of any nature (including
promptly repairing elevators, signs and lighting equipment), (d) replace equipment,
fixtures and components of the Parking Facilities at the end of their economic life
cycle, and (e) improve the Parking Facilities so that they comply with this Operating
Standard. To ensure the Parking Facilities are operated in a safe manner with a
minimum of inconvenience to its patrons, the City will establish and maintain a
Preventive Maintenance Program. The City shall conduct maintenance and repairs
so as not to limit the availability of all spaces in the Parking Facilities for Stadium
Events.
Regular equipment maintenance must be conducted on all parking control
equipment in each Parking Facility to ensure that revenues and accounting systems
are accurate. Parking equipment must be inspected daily prior to each Stadium
Page 2 of 3
Event. This includes computers, ticket dispensers, gates, counters, credit card and
debit card machines. Parking control devices shall be equipped with locks to
prevent the devices from being manipulated. In addition, security seals must be in
place on every piece of equipment. City or Parking Manager employees will be
responsible to visually inspect equipment daily to ensure that all locks and
equipment seals are in place.
Inoperable motor vehicles, trailers, storage or similar items shall not be
allowed to remain in the Parking Facilities and shall promptly be removed by the
City.
Records and controls:
The City will follow prudent policies and procedures so as to secure the
parking fee revenues from the Stadium Events and to provide complete and
accurate information on parking proceeds and use.
The City shall, and shall cause its parking personnel and Parking Manager (if
any) to, liaise with Stadium Operator for the planning of the staffing and other
operational issues regarding the Stadium Events, and to review and reconcile all
accounting reports and records regarding the event parking activities.
Signage:
The City will be responsible for appropriate directional and informational
signage related to the Parking Facilities on and around the Entire Site.
Vehicle TowingService:
As part of basic service made available to patrons for all MLB Events and
Other Events expected to have attendance of at least 5,000 people, the City will be
responsible for having a vehicle towing service on-site from at least one hour before
through at least two hours after each such Stadium Event.
Parking Procedures Manual:
The City and the Stadium Operator shall develop, at least 90 days prior to
opening of the Baseball Stadium, a detailed Parking Procedures Manual that will
contain specific information regarding the operation of the Parking Facilities in
accordance with this Operating Standard. A Parking Employee Handbook shall be
provided to parking personnel (and updated from time to time) with all relevant
customer service information on the Baseball Stadium, the Parking Facilities, traffic
and directions.
Page 3 of 3
n
x
I.
II.
CITY PARKING AGREEMENT
EXHIBIT D-1
INSURANCE REQUIREMENTS
MIAMI CITY PARKING CONSTRUCTION PHASE
Commercial General Liability (PROJECT SPECIFIC)
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $ 1,000,000
General Aggregate Limit $ 2,000,000
Products/Completed Operations $ 1,000,000
Personal and Advertising Injury $ 1,000,000
Medical Payments $ 10,000
B. Endorsements Required
City of Miami, Marlins Stadium Operator, LLC, Marlins Stadium
Developer, LLC, Florida Marlins, LP and Miami -Dade County included as
an additional insured (CG 201011/85)
Contingent Liability (Independent Contractors Coverage)
Contractual Liability
Waiver of Subrogation
Premises & Operations Liability
Explosion, Collapse and Underground Hazard
Loading and Unloading
Completed Operations for a period of 10 Years
Business Automobile Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto/Owned Autos/Scheduled Autos
Including Hired, Borrowed or Non -Owned Autos
Any One Accident $1,000,000
Page 1 of 4
B. Endorsements Required
City of Miami, Marlins Stadium Operator, LLC, Marlins Stadium
Developer, LLC, Florida Marlins, LP, and Miami Dade County included as
an Additional Insured
Employees as insureds
III. Worker's Compensation
Limits of Liability: meeting the statutory requirements of the State of
Florida, including, as applicable, Chapter 440, Florida Statutes.
Waiver of subrogation
IV. Employer's Liability
A. Limits of Liability
$1,000,000 for bodily injury caused by an accident, each accident.
$1,000,000 for bodily injury caused by disease, each employee
$1,000,000 for bodily injury caused by disease, policy limit
V Umbrella Policy/Excess Liability (Excess Following FornvTrue Excess
Following FormlTrue Umbrella) in excess of the commercial general
liability, employer's liability and business automobile liability coverage
provided hereunder.
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $20,000,000
Aggregate $20,000,000
B. Endorsements Required
City of Miami, Marlins Stadium Operator LLC, Marlins Stadium
Developer, LLC, Florida Marlins, LP and Miami Dade County included
as an additional insured
Increased limits to General Liability, Auto and Employer's Liability
Coverage
Page 2 of 4
VI. Payment and Performance Bond Full Contract Amount
City of Miami, Marlins Stadium Operator LLC, Marlins Stadium
Developer, LLC, Florida Marlins, LP and Miami Dade County included as
Obligees.
VII. Builders' Risk
Causes of Loss: All Risk -Specific Coverage Project Location
Valuation: Replacement Cost
Deductible: $25,000 All other Perils
5% maximum on Wind & Hail and Flood
City of Miami, Marlins Stadium Operator, LLC, Marlins Stadium
Developer, LLC, Florida Marlins, LP, Marlins Stadium Developer, LLC
and Miami Dade County listed as an Additional Insured
A. LimitNalue at Location or Site: Replacement cost of Parking
Facilities, subject to customary sub -limits in the South Florida
insurance market
B. Coverage Extensions
• Materials, supplies and similar property owned by others for
which you are responsible.
• Full coverage up to policy limits for equipment breakdown.
• Temporary storage/transit coverage.
• Full coverage up to policy limits for site preparation,
re -excavation, re-preparation and re -grade in the event of a loss.
• Fences, scaffolding, construction forms coverage and signs
• Valuable papers coverage for blueprints, site plans and similar
documents.
• Trees, shrubs, sod, plants while at premises.
• Flood, including inundation, rain, seepage and water damage.
• Earthquake
• Terrorism
• Business Interruption (Delay in Completion /Soft Costs)
• New ordinance or law; reimbursement for any resulting loss of
value to the undamaged portion, and required demolition
expenses, including construction necessary to repair, rebuild or re-
construct damaged parts.
• Temporary structures, cribbing and false work built or erected at
construction site.
• Unintentional errors and omissions in reporting clause
• Debris Removal
• Expediting and contractor's extra expense.
Page 3 of 4
VIII. Professional Liability
A. Limits of Liability
At a minimum
Each Claim $ x,000,000
General Aggregate Limit $ x,000,000
The above policies shall provide the City of Miami and each additional insured with
written notice of cancellation or material change from the insurer not less than (30) days
prior to any such cancellation or material change. Further, coverage for the Additional
Insureds shall apply on a primary basis irrespective of any other insurance, whether
collectible or not. Any policy deductibles or retentions, whether self-insured or self-
funded, shall be the obligation of City and shall not apply to Team Affiliates. All policies
shall be endorsed to provide a waiver of subrogation in favor of the "Additional
Insureds". City shall furnish Team Affiliates with certificates of insurance evidencing
compliance with all insurance provisions noted above prior to the commencement of the
Work and annually prior to the expiration of each required insurance policy.
Companies authorized to do business in the State of Florida, with the following qualifications,
shall issue all insurance policies required above:
The company must be rated no less than "A-" as to management, and no less than
"Class VII" as to Financial Strength, by the latest edition of Best's Insurance Guide,
published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies
and /or certificates of insurance are subject to review and verification by Risk
Management prior to insurance approval.
Page 4 of 4
I.
II.
CITY PARKING AGREEMENT
EXHIBIT D-2
INSURANCE REQUIREMENTS TO BE PROVIDED
BY CITY OR PARKING MANAGER FOR THE
OPERATIONAL PHASE OF THE PARKING
GARAGE FACILITY
Commercial General Liability (Primary & Non Contributory)
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence
$1,000,000
General Aggregate Limit
$2,000,000
Products/Completed Operations
$1,000,000
Personal and Advertising Injury
$1,000,000
Damage to Rented Premises
$300,000
Medical Payments
$10,000
B. Endorsements Required
City of Miami, Marlins Stadium Operator, LLC, Florida Marlins, LP and
Miami -Dade County included as an additional insured (CG 201011/85) or
its equivalence
Contingent Liability (Independent Contractors Coverage)
Contractual Liability
Waiver of Subrogation
Premises & Operations Liability
Explosion, Collapse and Underground Hazard
Loading and Unloading
Business Automobile Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto/Owned Autos/Scheduled Autos Including Hired, Borrowed or
Non -Owned Autos Any One Accident $ 1,000,000
Page 1 of 4
B. Endorsements Required
City of Miami, Marlins Stadium Operator, LLC, Florida Marlins, LP, and
Miami Dade County included as an Additional Insured
Employees as insureds
III. Worker's Compensation
Limits of Liability: meeting the statutory requirements of the State of
Florida
Waiver of subrogation
IV. Employer's Liability
A. Limits of Liability
$500,000 for bodily injury caused by an accident, each accident.
$500,000 for bodily injury caused by disease, each employee
$500,000 for bodily injury caused by disease, policy limit
V. Umbrella Policy/Excess Liability (Excess Following Form/True Excess
Following FormJTrue Umbrella) in excess of the commercial general
liability, employer's liability and business automobile liability coverage
provided hereunder.
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $10,000,000
Aggregate $10,000,000
B. Endorsements Required
City of Miami, Marlins Stadium Operator LLC, Florida Marlins, LP and
Miami Dade County included as an additional insured
Increased limits to General Liability, Auto and Employer's Liability
Coverage
Page 2 of 4
VI. Garage keeper's Legal Liability (GKL)
A. Limits of Liability $2.000,000
Other than Collision Deductible $500/2,500 maximum
Collision Deductible $1,000/5,000 maximum
City of Miami, Marlins Stadium Operator LLC, Florida Marlins, LP and
Miami Dade County included as an additional insured
VII. Crime Coverage
A. Limits of Liability
Employee Dishonesty including
Forgery and alteration $1,000,000
Money & Securities In & Out Coverage $ 25,000
City of Miami, Marlins Stadium Operator LLC, Florida Marlins, LP and
Miami Dade County included as Loss Payee on this coverage
VIII. Property Coverage
City will provide the County and the Team Affiliates with evidence of insurance
affording coverage against "All Risk" of direct physical loss or damage and Time Element
coverage, in an amount equal to the replacement cost of the Parking Facilities, including
coverage for windstorm, hail, earthquake and flood, subject to sub -limits customarily
maintained by the City. This policy shall further provide coverage for contingent business
income to protect against potential loss of income under the terms of this Agreement as a
result of a casualty to the Stadium Premises from a covered cause of loss.
IX. Performance Bond (If Applicable) $ TBD
City of Miami, Marlins Stadium Operator LLC, Florida Marlins, LP and Miami Dade
County included as Obligees.
The above policies shall provide the City of Miami and each additional insured with
written notice of cancellation or material change from the insurer not less than (30) days
prior to any such cancellation or material change. Further, coverage for the Additional
Insureds shall apply on a primary basis irrespective of any other insurance, whether
collectible or not. Any policy deductibles or retentions, whether self-insured or self-
funded, shall be the obligation of City and shall not apply to Team Affiliates. All policies
shall be endorsed to provide a waiver of subrogation in favor of the "Additional
Insureds". City shall furnish Team Affiliates with certificates of insurance evidencing
compliance with all insurance provisions noted above prior to start of operations of the
Parking Facilities and annually prior to the expiration of each required insurance policy.
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Every five years from the date of this Agreement, the Parties will revisit the limits and
sub -limits of the policies above and adjust to levels that are reasonable and customary in
the South Florida insurance market.
Companies authorized to do business in the State of Florida, with the following qualifications,
shall issue all insurance policies required above:
The company must be rated no less than "A-" as to management, and no less than "Class
VII" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by
A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or
certificates of insurance are subject to review and verification by Risk Management prior
to insurance approval.
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