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HomeMy WebLinkAboutExhibit 5 V1t:-- � �/ 776_TT I'E "' NON -RELOCATION AGREEMENT This Non -Relocation Agreement (this "Agreement") is made and entered into as of this _ day of , 2009, by and among Miami -Dade County, a political subdivision of the State of Florida (the "County"), the City of Miami, a municipal corporation of the State of Florida (the "City"), and Florida Marlins, L.P., a Delaware limited partnership (the "Team"). The County, City and the Team shall be referred to herein collectively as the "Parties" and individually as a "Party>' Recitals A. The Team owns the Major League Baseball franchise known as the Florida Marlins. B. Contemporaneously with the execution of this Agreement, (i) the County, the City and Marlins Stadium Developer, LLC, an affiliate of the Team, are entering into a Construction Administration Agreement (the "Construction Agreement") providing for the planning, design and construction of the Baseball Stadium and the Public Infrastructure; and (ii) the County, the City and Marlins Stadium Operator, LLC, another affiliate of the Team (the "Stadium Operator"), are entering into an Operating Agreement (the "Operating Agreement") providing for the operation and management of the Baseball Stadium by the Stadium Operator. (Capitalized terms used but not defined in this Agreement have the meanings set forth in the Operating Agreement.) C. As a material inducement to the County and the City to enter into the Construction Agreement and the Operating Agreement, the Team has agreed to enter into this Agreement to assure that the Team will play its MLB home games at the Baseball Stadium on the terms and conditions set forth herein. NOW, THEREFORE, the parties agree as follows: 1. Discontinuation of Relocation Discussions. Subject to Sections 2(d) and 3 below, the Team covenants and agrees that from the date of this Agreement and continuing through the earlier of (i) the Non -Relocation Term (as defined in Section 2 below) and (ii) the termination of this Agreement pursuant to Section 5.5, the Team and its agents shall discontinue all discussions, negotiations and efforts to relocate the Team's MLB franchise either temporarily or permanently to any location other than the Baseball Stadium for the period following the Substantial Completion of the Baseball Stadium. 2. Covenant to Play at Baseball Stadium. Subject to Section 3 below, the Team covenants and agrees that throughout the Non -Relocation Term: (a) the Team shall maintain its principal place of business in the City; (b) the Team shall maintain its MLB franchise in the City and use the Baseball Stadium as its home stadium; contraction of the Team by Major League Baseball shall be deemed a violation of this clause; the Team shall not volunteer for contraction or vote in favor of its contraction; (c) the Team shall play all of its regular season and playoff (including World Series) MLB Home Games at the Baseball Stadium; and (d) the Team shall not enter into any contract or agreement, or make any request or application to Major League Baseball, to (i) relocate its franchise outside of the City in violation of clause (b) above or (ii) play any regular season or playoff MLB Home Game in any location other than the Baseball Stadium in violation of clause (c) above, provided that the Team may take the actions otherwise prohibited in this subsection (d) during the last three (3) years of the Term of the Operating Agreement in connection with any proposed relocation or playing of MLB Home Games that would not occur until the conclusion of the Term. The Team shall notify the County and City promptly after entering into any such contract or agreement, or making any such request or application. The covenants by the Team under this Section 2 are collectively referred to in this Agreement as the "Non -Relocation Covenants" and any violation of any of such covenants is referred to as a "Non -Relocation Default". As used in this Agreement, "Non -Relocation Term" means the period commencing with the Substantial Completion Date and ending on the termination of this Agreement pursuant to Section 5.5 of this Agreement. 3. Exceptions. Notwithstanding Sections 1 and 2 above, the Team shall be permitted to play what would otherwise be an MLB Home Game at a location other than the Baseball Stadium: (a) in the case of an Alternate Site Condition as provided in Section 4; (b) in any consecutive five-year period, up to three (3) regular season MLB home games (not including any games played in different locations under Section 3(a) above) in an international or other location as permitted or requested by Major League Baseball; (c) in the case of playoff MLB games, at any location required by Major League Baseball; and (d) in the case of MLB games other than regular season and playoff games, at any location it chooses. If the Substantial Completion Date occurs during an MLB season after one-half of the Team's regular season games have been played, the covenants in Section 1 shall not apply with respect to that MLB season, and the covenants in Section 2 shall not become effective until the start of the succeeding MLB season. The Team may take any actions otherwise prohibited by Section 1 or 2 in connection with any change in location permitted by this Section 3. Without limiting the generality of any other provision of this Agreement, the covenants of the Team provided in Sections 1 and 2 shall not apply if (i) the County and the City Representatives jointly consent in a writing signed by both parties to any action(s) otherwise prohibited under such section; except that any actions which would allow the Team to permanently relocate from the City shall require the approval of the City Commission and the Board of County Commissioners, or (ii) at any time after the termination of this Agreement. 4. Alternate Site Condition. (a) Notwithstanding the provisions of Section 1 or Section 2, if, at any time during the Non -Relocation Term, an Alternate Site Condition shall exist, then (i) the Team shall be entitled to make arrangements to temporarily play at alternate sites for the Team's MLB Home Games and (ii) the Team shall be relieved of its obligations under Sections 1 and 2 and shall be entitled to play its MLB Home Games at such alternate sites, but only during the period of time that any such Alternate Site Condition shall exist; provided, however, that if the Alternate Site Condition shall be of such a nature that its expected expiration cannot reasonably be ascertained by the Team, then the Team shall be entitled to honor any commitment it might reasonably have made to play MLB Home Games at an alternate site even if that commitment extends beyond the date such Alternate Site Condition ends. However, if the County or the City obtain or possess reasonable evidence that the expiration of the Alternate Site Condition can be ascertained, either Party may seek to have such matter determined by Arbitration pursuant to Article 18 of the Operating Agreement. The Team shall not, however, make any commitment that extends beyond the end of the MLB Season in or prior to which such Alternate Site Condition occurs, except that, if, as of December 1 of any Operating Year, such Alternate Site Condition is reasonably expected (as determined in accordance with Section 4(b)) to continue for more than sixty (60) days of any subsequent MLB season, then the Team shall be entitled to commit to play its home games at an alternate site for the duration of such MLB season. (b) Not later than November 1 of any Operating Year in which an Alternate Site Condition continues to exist, the Team shall give the County and City Representatives a written notice setting forth the date it reasonably believes such Alternate Site Condition will terminate (the "Proposed Date"). If the City or County Representative fails to object to such notice within five (5) Business Days, it will be deemed to have accepted the Proposed Date and the Team's right to contract with alternate sites under Section 4(a) shall be based on such date. If the County or City Representative timely objects to the Proposed Date, the Parties shall use good faith efforts to resolve such dispute within the next five (5) Business Days. If the dispute cannot be resolved, either Party may seek to have such date determined by Arbitration pursuant to Article 18 of the Operating Agreement and such panel shall be directed to seek to hear and resolve the dispute by the immediately succeeding December 1. Any determination by the Arbitrator Panel shall be final, binding and non -appealable by the Parties for purposes of determining the Team's right to contract with alternate sites under Section 4(a). The County, the City and the Team shall consult, and reasonably cooperate, with one another following any Alternate Site Condition so that the Team can most effectively find and contract for an alternate site during the duration of such Alternate Site Condition. (c) The Team shall use commercially reasonable and diligent efforts to mitigate and overcome any Alternate Site Condition that results in its regular season or playoff MLB Home Games not being played at the Baseball Stadium to the extent such event or condition is within the reasonable control of the Team, but this undertaking shall not be construed to require the Team to take any action, or to relieve the County or the City of any obligation it may have, with respect to a Condemnation Action, Casualty or Force Majeure that is the County's or City's responsibility under the Operating Agreement or require the Team to take any action with respect to strikes, labor unrest or disputes, or take any action that the Operator is not required to take under the Operating Agreement. (d) As used in this Agreement, "Alternate Site Condition" shall mean the existence of any one of the following: (i) Major League Baseball determines the condition of the Stadium Premises is or may be (e.g., due to an impending or recently occurring storm) such that MLB Rules and Regulations, or a specific Major League Baseball directive, prohibits the playing of MLB Home Games at the Baseball Stadium in a written direction, declaration or ruling addressed to the County, the City and the Team; or (ii) a Governmental Authority determines the use or occupancy of any material portion of the Stadium Premises (excluding the Plaza) is (a) not permitted under any Applicable Law or (b) is unsafe for customary usage. 5. Remedies. 5.1 Non -Relocation Default. Upon the occurrence of a Non -Relocation Default, each of the County and the City shall have the option to pursue any one or more of the remedies set forth in Section 5.2, Section 5.3 or Section 5.4, that may be applicable. Upon the occurrence of any other breach or misrepresentation in this Agreement by the Team, each of the County and the City shall have the option to pursue any one or more of the remedies set forth in Section 5.4. 5.2 Declaratory or Injunctive Relief. Upon the occurrence of a Non - Relocation Default, each of the County and the City shall be entitled to seek injunctive relief prohibiting or mandating action by the Team in accordance with, or declaratory relief with respect to, the Non -Relocation Covenants. In addition, the Team: (a) acknowledges that the Non -Relocation Covenants are an essential part of the bargain and consideration of the Stadium Agreements and are necessary to protect the business and goodwill of the County and the City; (b) recognizes that the Baseball Stadium is being constructed and certain debt is being incurred by the County and the City to permit the MLB Home Games in the Baseball Stadium during the Non -Relocation Term; (c) recognizes that having the Team play its MLB Home Games in the Baseball Stadium throughout the Non -Relocation Term provides a unique value to each of the County and the City, including generating new jobs, additional revenue sources and economic development and increased tourism for the County and the City; and (d) acknowledges and agrees that any breach by the Team of the Non -Relocation Covenants shall cause irreparable and continual harm to the County and the City and that damages for a default under such Non - Relocation Covenants cannot be estimated with any degree of certainty and that monetary damages cannot fairly or adequately compensate the County and the City for a breach of such Non -Relocation Covenants. Accordingly, the Team agrees that, in the event of any of the actual or threatened breach by the Team of any one of the Non -Relocation Covenants (i) each of the County and the City shall be entitled to seek and obtain, a temporary restraining order, together 4 with temporary, preliminary and permanent injunctive or other equitable relief, from any court of competent jurisdiction, to restrain or enjoin any actual or threatened breach by the Team of any Non -Relocation Covenant without the necessity of posting a bond or other security and without any further showing of irreparable harm, balance of harms, consideration of the public interest or the inadequacy of monetary damages as a remedy, (ii) the administration of an order for injunctive relief would not be impractical and, in the event of any breach of any Non -Relocation Covenant by the Team, the balance of hardships would weigh in favor of entry of injunctive relief, and (iii) each of the County and the City may enforce any Non -Relocation Covenant contained in this Agreement through specific performance. The Parties hereby agree and irrevocably stipulate that (x) the rights of each of the County and the City to injunctive relief pursuant to this Non -Relocation Agreement shall not constitute a "claim" pursuant to section 101(5) of the United States Bankruptcy Code (the "Bankruptcy Code") and shall not be subject to discharge or restraint of any nature in any bankruptcy proceeding involving the Team, (y) this Agreement is not an "executory contract" as contemplated by section 365 of the Bankruptcy Code, and (z) action(s) taken by each of the County and the City pursuant to this Section 5.2 shall not in any way prejudice any other rights or remedies that the County and the City may have under Section 5.3 or Section 5.4 of this Agreement or under the other Stadium Agreements if a court of competent jurisdiction fails to provide injunctive or other equitable relief prohibiting the Team's violation of the Non -Relocation Covenants or, in the case of the remedies set forth in Section 5.4, fails to award liquidated damages under Section 5.3. 5.3 Liquidated Damages. The Parties acknowledge and agree that if the County or the City do not obtain injunctive or other equitable relief pursuant to Section 5.2, the County and the City each shall be entitled to seek and obtain relief pursuant to this Section 5.3 in the event a court of competent jurisdiction determines, in a final and non -appealable order, that the Team has breached its covenants under Section 2(c) (a "Final Order"). The Parties also recognize, agree, and stipulate that the financial, civic, and social benefits to the County and the City from the presence of the Team and the playing of its MLB Home Games in Miami, Florida are great, but that the precise value of those benefits cannot be estimated with any degree of certainty due to the number of citizens and businesses that rely upon and benefit from the presence of the Team in Miami, Florida. Accordingly, the magnitude of the damages that would result from a breach of Section 2(c) hereof that is not enjoined by a court of competent jurisdiction notwithstanding the intent of the parties, would be very significant in size but are not readily ascertainable and would include damages to the reputation and finances of the County and the City. Therefore, the Parties agree that in the event of a violation of Section 2(c) hereof, including, without limitation, any such breach arising pursuant to the provisions of section 365(g) of the United States Bankruptcy Code or similar provision of any successor thereto, the County and the City will be entitled to recover from the Team the amounts set forth in Subsection 5.3.1: 5.3.1 Liquidated Damages. If the County or the City do not obtain injunctive or other equitable relief pursuant to Section 5.2 and the violation of Section 2(c) is not cured prior to the date that a court of competent jurisdiction enters a Final Order, the County shall be entitled to receive, as reasonable estimated liquidated damages and not as a penalty, the County Liquidated Damages (as hereafter defined) and the City shall be entitled to receive, as reasonable estimated liquidated damages and not as a penalty, the City Liquidated Damages (as hereafter defined). For purposes of this Agreement, "County Liquidated Damages" shall mean 5 the sum of (a) the then outstanding balance of principal and interest of the County Bonds (as such term is defined in the Construction Administration Agreement), (b) the unamortized amount of Public Infrastructure Costs and any other costs for the Baseball Stadium Project paid by the County under the Construction Administration Agreement (which amount shall be amortized on a straight line basis over 30 years) without duplicating amounts in (a) if such Public Infrastructure Costs or other costs are funded from County Bonds, and (c) the present value of all Capital Reserve Fund contributions required to be made by the Stadium Operator pursuant to Section 9.3(b) of the Operating Agreement. For purposes of this Agreement, "City Liquidated Damages" shall mean the sum of (i) the then outstanding balance of principal and interest of the City Bonds (as such term is defined in the Construction Administration Agreement), (ii) the unamortized balance of the funds (other than the proceeds of the City Bonds) deposited in the City Account (as such term is defined in the Construction Administration Agreement) in an amount that, together with proceeds of the City Bonds, will be equal to $13,000,000 (which balance shall be amortized on a straight line basis over 30 years), (iii) the present value of all regular season MLB Home Game parking fees owed to the City under Section 6.3(a) of the City Parking Agreement (assuming 81 regular season MLB Home Games) prior to the end of the Term (as such term is defined in the City Parking Agreement), and (iv) the unamortized amount of Public Infrastructure Costs and any other costs for the Baseball Stadium Project paid by the City under the Construction Administration Agreement (which amount shall be amortized on a straight line basis over 30 years), without duplicating amounts in (i) and (ii) if such Public Infrastructure Costs or other costs are funded from City Bonds or amounts referred to in (ii). 5.3.2 Present Value. All calculations of the present value of any unpaid amounts to be made by the Team under this Section 5.3 shall use a discount rate of seven percent (7%) per annum. 5.3.3 [Intentionally Omitted] 5.3.4 Acknowledgement. The Parties hereby acknowledge that they have negotiated the amounts set forth in this Section 5.3 in an attempt to make a good faith effort in quantifying the amount of damages due to a violation of Section 2(c) hereof despite the difficulty in making such determination. 5.4 Actual Damages. In the event of any breach of or misrepresentation in this Agreement by the Team (other than a Non -Relocation Default subject to the remedies set forth in Section 5.2 or, if applicable, Section 5.3), or in the event of a Non -Relocation Default for which, notwithstanding the intent of the Parties, the County and the City are unable to obtain the relief set forth in Section 5.2 or, if applicable, Section 5.3, the County and the City shall have the right (i) to institute any and all proceedings or claims permitted by law or equity to recover any and all amounts necessary to compensate the County and the City for all damages proximately caused by the Team's breach under this Agreement, and (ii) to institute any and all proceedings or claims permitted by law or equity to compel specific performance with respect to the Team's obligations under this Agreement and one or more actions to seek and obtain a temporary restraining order, together with such other temporary, preliminary and permanent injunctive or other equitable relief, from any court of competent jurisdiction capable of issuing or granting such relief, to compel the Team to comply with or refrain or cease from breaching or violating the terms, covenants and conditions of this Agreement. 5.5 Termination. (a) Upon the entry of a Final Order with respect to a default by the Team under Section 2(c), the County and the City shall have the right, but not the obligation, to give to the Team joint written notice (a "Final Notice") of their intention to terminate this Agreement and all other Stadium Agreements. After the expiration of a period of thirty (30) days from the date such Final Notice is given, unless the default is cured, this Agreement and the other Stadium Agreements may, at the sole option of the County and the City, be terminated without liability to the County and the City by further written notice to the Team. If, however, within such thirty (30) day period, the Team's default under Section 2(c) is cured, then this Agreement and the other Stadium Agreements shall not terminate by reason of such Final Notice. (b) This Agreement, and all obligations of the Parties under this Agreement, shall terminate without further action by, or liability to, any Party upon the expiration or termination of the Operating Agreement for any reason expressly permitted under the Operating Agreement; provided that upon a termination of the Operating Agreement jointly by the County and the City upon the entry of a Final Order that the Team has breached Section 2(c) of this Agreement, this Agreement shall only terminate as provided in Section 5.5(a) above. For the avoidance of doubt, until the end of the Non -Relocation Term, the Team shall remain bound by, and shall not be relieved of, its obligations under this Agreement upon a termination by the County and the City of the Operating Agreement due to a breach of Section 2(c) of this Agreement by the Team as described in the preceding sentence. Except for the provisions of this Agreement that are expressly to survive termination, and except as provided in this Section 5.5(b), in the event of a termination of this Agreement and the other Stadium Agreements under this Section 5.5, then all obligations of the Parties under this Agreement and such other Stadium Agreements automatically also shall terminate. (c) Termination of this Agreement and the other Stadium Agreements shall not alter any existing claim of any Party for breaches of this Agreement or the other Stadium Agreements occurring prior to such termination and the obligations of the Parties thereto with respect to such existing claims shall survive termination, including, without limitation, the obligations under Sections 5.1, 5.2, 5.3 and 5.4 hereof. 5.6 Cumulative Remedies. Except as expressly set forth in Section 5.2, Section 5.3 and Section 5.4, each right or remedy of the County and the City provided for herein shall be cumulative of and shall be in addition to every other right or remedy of the County and the City provided for in this Agreement, and the exercise (or the beginning of the exercise) by the County and the City of any one or more of the rights or remedies provided for in this Agreement, shall not preclude the simultaneous or later exercise by the County and the City of any or all other rights or remedies provided for in this Agreement or any other Stadium Agreement or hereafter existing at law or in equity, by statute or otherwise. 6. Payment Upon Sale of Team. Upon a sale to a third party of a "control interest" (defined as the sale of more than 50% of the voting, actual or beneficial interest in the franchise, occurring within the period commencing with the approval of the Stadium Agreements by the City Commission and the Board of County Commissioners and ending thirty six (36) 7 months following Substantial Completion, whether through a sale of equity shares or partnership interests, to the extent proceeds are paid to the owners of the Team and not contributed to Team Affiliates involved in baseball related businesses) (other than following the death of the controlling owner), the Team shall or shall cause the seller to pay to the County and the City, to be split on a pro -rata basis (including the value of the City's contribution of the Baseball Stadium Site, the amount of the City's and the County's expenditures as required by the Construction Agreement, and the value of the City and the County's respective expenditures associated with the Public Infrastructure) determined by each respective parties' contribution to the Baseball Stadium, an amount equal to the following percentage of the Net Proceeds of the sale that are attributable to any increase in value of the franchise (pro -rated in the case of a sale of the control interest) (the "County/City Equity Payment"): Phase of Project Year Description of Time -Frame Percentage Construction Phase Year 1 If sale occurs within 12 months of approval date of 18.0% Stadium Agreements Construction Phase Year 2 Sale occurs within 24 months of approval date of 16.2% Stadium Agreements Construction Phase Year 3 Sale occurs within 36 months of approval date of 14.4% Stadium Agreements Construction Phase Year 4 Sale occurs within 48 months of approval date of 12.6% Stadium Agreements, or, prior to Substantial Completion of Stadium, whichever occurs first Operational Phase Year 1 Sale occurs within 12 months of Substantial 10.0% Completion Operational Phase Year 2 Sale occurs within 24 months of Substantial 7.5% Completion Operational Phase Year 3 Sale occurs within 36 months of Substantial 5.0% Completion The increase in value shall be based on an assumed value of the franchise of $250,000,000 as of the date of the BSA, which assumed value shall be increased to give effect to any additional debt incurred by, or equity capital contributions made to the Team, Stadium Developer or Operator, including the capital contributions made to, or the debt incurred by, the Stadium Developer or the Team pursuant to the Construction Administration Agreement (net of distributions to any such Team owners) and an imputed increase in value of 8% per annum from the date of the BSA. "Net Proceeds" shall mean the fair market value of all proceeds received from the sale plus any indebtedness for borrowed money of the Team or any Team Affiliate assumed by the buyer in the sale, less (x) the assumed value of the franchise determined under the preceding sentence, (y) all transaction -related expenses and taxes payable by the Team Affiliates and/or their direct and indirect owners to unaffiliated third parties solely as a result of the sale, and (z) any liabilities or 8 obligations retained by the Team (in the case of a sale of the franchise) and/or its direct or indirect owners relating to the Marlins or its affiliated businesses. The Team shall cause its independent accountants to provide the County and City a reasonably detailed calculation of the County/City Equity Payment (on a combined basis) under this Section 6, including a detailed calculation showing the assumed value, Net Proceeds and any other calculations the Team used to determine the amount payable, as promptly as practicable following any applicable sale. If the County or City do not provide a notice of objection within thirty (30) days after receiving the accountant's calculation, such calculation shall be final and binding and payment of any amount due shall be made not later than thirty (30) days after the expiration of such period. If the County or City does provide a notice of objection, it shall specify in reasonable detail the basis for its objections. The objecting Government Party and the Team shall then seek to resolve any disagreements between them within the succeeding period of sixty (60) days. If the objecting Government Party and the Team are unable to resolve the dispute within such sixty (60) day period, each of them shall have the right to commence arbitration in accordance with the Operating Agreement. If the arbitrator shall enter a final, non - appealable order requiring payment from the Team under this Section 6, the Team shall pay such amount within thirty (30) days thereafter. 7. Annual Payment. In consideration for its use of the Baseball Stadium, the Team shall remit to the County an annual amount of $2,300,000 per year, growing at two percent (2%) per year, for each Operating Year during the initial thirty-five year term of the Operating Agreement, in semi-annual installments of $1,150,000 (growing at 2% annually) on April 30 and September 30 of each Operating Year; provided, however, that if Substantial Completion occurs after April 30 but before September 30 in the first Operating Year, then the Team shall remit to the County $1,150,000 within thirty (30) days following Substantial Completion and $1,150,000 on or before September 30, and if Substantial Completion occurs after September 30, the Team shall remit to the County $2,300,000 within thirty (30) days of Substantial Completion but in no event later than October 31 for the first Operating Year. Such annual amount shall be negotiated by the Team and the County prior to the commencement of any Renewal Term. Notwithstanding any other provisions of this Agreement or of the Operating Agreement relating to termination, this Section 7 shall survive any early termination of this Agreement and the Operating Agreement arising from the Operator's termination of the Operating Agreement pursuant to Section 17.5.3 of the Operating Agreement. 8. Indemnification by the Team. The Team shall indemnify and hold harmless the City and the County and each and all of its directors, officers, employees, agents, licensees, independent contractors and consultants or any of them as their interests may appear (collectively, "Government Indemnitees"), of, from and against all claims, fines, claim costs, charges and expenses, liabilities, suits, obligations, demands, actions, settlements, and judgments recovered from any of them, including attorneys' fees incurred to defend such claims (collectively, "Losses"), to the extent such Losses arise from any breach of this Agreement by the Team. Any such indemnification shall be provided in accordance with the indemnification procedures set forth in Section 13.3 of the Operating Agreement, The Team expressly understands and agrees that any insurance protection required by this Agreement or otherwise provided by the Team shall in no way limit the responsibility to indemnify, keep and save harmless and defend the Government Indemnitees as herein provided. 9 9. Change of Name The Team shall change its name to the "Miami Marlins" prior to the Substantial Completion Date and shall continue to use that name for the Term of the Operating Agreement, including any Renewal Term. 10. Governing Law; Interpretation. This Agreement has been negotiated, executed and delivered in Florida, and shall be governed by the laws of the State of Florida without reference to the conflicts of law principles of that State. 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 be exclusively in Miami, Florida. The headings of sections and paragraphs in this Agreement are for convenience only and shall not be construed in any way to limit or define the content, scope or intent of the provisions hereof. As used in this Agreement, the singular shall include the plural, and masculine, feminine and neuter pronouns shall be fully interchangeable where the context so requires. If any provision of this Agreement, or any paragraph, sentence, clause, phrase or word, or the application thereof, in any circumstances, is adjudicated by a court of competent jurisdiction to be invalid, the validity of the remainder of this Agreement shall be construed as if such invalid part were never included herein. Time is of the essence of this Agreement. Any and all claims, demand or other actions related to this Agreement shall be subject to the exclusive jurisdiction of United States District Court of the Southern District of Florida. The Parties irrevocably submit to such jurisdiction. 11. Entire Agreement. 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. This Agreement may not be modified, amended or waived except by a written instrument signed by each of the parties affected thereby, and approved by the Board and the City Commission, if applicable. Waiver by any Party of any breach of any provision of this Agreement shall not be considered as or constitute a continuing waiver or a waiver of any other breach of the same or other provision of this Agreement. This Agreement shall terminate upon the conclusion of the Term of the Operating Agreement. 12. Representations and Warranties. The Team hereby represents and warrants to the County and the City as follows: (a) the execution, delivery and performance by the Team of this Agreement have been duly authorized by all necessary limited partnership action, and do not and will not contravene or conflict with (i) the limited partnership agreement of the Team, (ii) any provision of Baseball Rules and Regulations, (iii) any law, order, rule, regulation, writ, injunction or decree now in effect of any government, governmental instrumentality or court having jurisdiction over the Team, or (iv) any loan agreement or other contractual restriction binding on or affecting the Team or any of its property or assets, except where any of the foregoing could not reasonably be expected to have a material adverse effect on the Team; (b) this Agreement is a legal, valid and binding obligation of the Team enforceable against the Team in accordance with its terms; (c) except as disclosed in writing to the County or the City, there is no action, proceeding or investigation pending or, to the knowledge of the Team, threatened or affecting the 10 Team, which may adversely affect the ability of the Team to fulfill and perform its obligations and its other undertakings under this Agreement. The Team is not in default with respect to any judgment, order, injunction or decree of any Governmental Authority which is in any respect material to the transactions contemplated in and by this Agreement; (d) the Team is a limited partnership duly formed, validly existing, and in good standing under the laws of the State of Delaware; (e) the Team is a member in good standing of Major League Baseball and is in compliance in all material respects with all applicable Baseball Rules and Regulations which are relevant to the transactions contemplated herein; and (f) the Team has full power and legal right to execute and deliver this Agreement and to perform and observe the provisions of this Agreement. 13. Team Acknowledgment. The Team hereby acknowledges that pursuant to Section 15.30) of the Operating Agreement, in the event there are any unpaid obligations under the Operating Agreement for which the Operator shall not have adequate reserves or reasonably anticipated revenues arising from Revenue Rights, and which are not being contested by the Operator in good faith, the Operator has covenanted and shall not make any further payments to the Team under its license agreement with the Team or any distributions of stadium revenues to the Team Affiliates and/or its partners until all such obligations have been fully satisfied. 14. Successors and Assigns; Third Party Beneficiaries. (a) This Agreement shall bind the Team and its assigns and successors; provided that the Team shall not be entitled to transfer or assign its obligations hereunder without the prior written consent of the Government Parties, which consent shall be in their sole discretion; provided, further, however, that the Team may, without the prior written consent of the Government Parties, transfer and assign its obligations hereunder to any Person (or Affiliate of any Person) that acquires the Team's MLB franchise with the required approval of Major League Baseball, provided that (i) such transferee assumes unconditionally, in a writing reasonably satisfactory to the Government Parties, all of the obligations of the Team under this Agreement, and (ii) such transferee or its Affiliates assume all of the other obligations of the Stadium Operator and its Affiliates under the Stadium Agreements. (b) This Agreement shall bind the Government Parties and their respective assigns and successors; provided that neither of the Government Parties may transfer or assign this Agreement or any of their respective rights and obligations hereunder without the prior written consent of the Team, which consent shall be in the Team's sole discretion. (c) 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; or (b) authorize anyone not a party to this Agreement to maintain an action pursuant to or based upon this Agreement. 11 15. Nonrecourse Liability of Team 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 Team and their Affiliates (the "Team Personnel") shall not in any way be liable under or with respect to this Agreement; no deficiency or other monetary or personal judgment of any kind shall be sought or entered against any of the Team Personnel with respect to liability under or with respect to this Agreement; no judgment with respect to liability under or with respect to this Agreement shall give rise to any right of execution or levy against the assets of any of the Team Personnel; and the liability of the Team under this Agreement shall be limited to the assets of the Team. 16. 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 Business Day after being sent by reputable overnight carrier, or three 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): To the County: County Manager 111 NW 1st Street, Suite 2900 Miami, Florida 33128 Attention: George M. Burgess with a copy to: County Attorney 111 NW 1st Street, Suite 2810 Miami, Florida 33128 Attention: Robert A. Cuevas, Jr. and Geri Keenan To the City: City Manager 444 SW 2" Avenue, 10th Floor Miami, Florida 33130 Attention: Pedro G. Hernandez with a copy to: City Attorney 444 SW 2"d Avenue, 10th Floor Miami, Florida 33130 Attention: Julie O. Bru and Olga Ramirez-Seijas To the Team: 2267 Dan Marino Boulevard Miami, Florida 33056 Attention: David Samson and Derek Jackson with a copy to: Proskauer Rose LLP 1585 Broadway 12 New York, New York 10036 Attention: Wayne D. Katz, Esq. 17. Subordination. The Team acknowledges and agrees that its right to receive any payments from the Stadium Operator (including equity distributions) shall be subordinate to the Stadium Operator's payment obligations under the Operating Agreement. 18. 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 Applicable Law, the Parties shall, to the extent possible, negotiate a revised provision which (a) complies with 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. 19. County Inspector General and Commission Auditor. The attention of the Operator 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 Team Affiliates shall not be responsible for any expense reimbursements or other amounts payable to the OIG or its contractors. The attention of the Operator is hereby directed to Section 2-481 of the County Code related to the Commission Auditor. 20. SovereiLyn Rights. The County and City retain all of their respective sovereign prerogatives and rights as a county or city under State law with respect to the planning, design, construction, development and operation of the Baseball Stadium. It is expressly understood that notwithstanding any provisions of this Agreement and the Stadium Agreements and the County's and the City's status thereunder: (a) The County and the City retain all of their sovereign prerogatives and rights and regulatory authority (quasi-judicial or otherwise) as a county or city 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 Baseball Stadium, the Baseball Stadium Site, the Public Infrastructure, the Other Development or the Parking Facilities, or the operation thereof, or be liable for the same; and (b) The County and the City shall not by virtue of this Agreement or the other Stadium Agreements be obligated to grant the other, or the Team, any Team Affiliate, or the Stadium Developer any approvals of applications for building, zoning, planning or development under present or future laws and ordinances of whatever nature applicable to the planning, design, construction, development and/or operation of the Baseball Stadium, the Baseball Stadium Site, the Public Infrastructure, the Other Development or the Parking Facilities. 13 Notwithstanding and prevailing over any contrary provision in this Agreement, any County or City covenant or obligation that may be contained in this Agreement shall not bind the Board, the County's Planning and Zoning Department, DERM, the Commission or any other County, City, 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 County or City or other applicable governmental agencies in the exercise of its police power. 21. Force Majeure. If any Party shall be delayed in the performance of any obligation hereunder as a result of a Force Majeure, then the performance of such obligation shall be extended by the length 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 party 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. Without limiting the foregoing, if a Party fails to meet a deadline specified in this Agreement due to another Party's failure to meet a prior and related deadline (or due to an event covered by Section 3.6(f) of the Construction Agreement), such subsequent deadline shall be extended by the number of days the delay was attributable to the prior deadline failure, and the Party failing to meet the prior deadline shall not be relieved of liability for such breach. 22. Counterparts. If this Agreement is executed in several counterparts, each of those counterparts shall be deemed an original, and all of them together shall constitute one and the same instrument. 14 IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have duly executed this Agreement as of the date and year first above written. CITY OF MIAMI, FLORIDA Pedro G. Hernandez City Manager City of Miami ATTEST: By: City Clerk APPROVED AS TO FORM AND CORRECTNESS: City Attorney APPROVED AS TO INSURANCE REQUIREMENTS: LeeAnn Brehm Risk Management Director 15 MIAMI-DADE COUNTY, FLORIDA George M. Burgess County Manager Miami -Dade County ATTEST: Clerk of the Board APPROVED AS TO FORM AND LEGAL SUFFICIENCY: County Attorney FLORIDA MARLINS, L.P. By: Double Play Company, its General Partner By: Name: Title: NON -RELOCATION AGREEMENT This Non -Relocation Agreement (this '`Agreement") is made and entered into as of this _ day of 2009, by and among Miami -Dade County, a political subdivision of the State of Florida (the "Coun "), the City of Miami, a municipal corporation of the State of Florida (the "City"), and Florida Marlins, L.P., a Delaware limited partnership (the "Team"). The County, City and the Team shall be referred to herein collectively as the "Parties" and individually as a "Party". Recitals A. The Team owns the Major League Baseball franchise known as the Florida Marlins. B. Contemporaneously with the execution of this Agreement, (i) the County, the City and Marlins Stadium Developer, LLC, an affiliate of the Team, are entering into a Construction Administration Agreement (the "Construction Agreement') providing for the planning, design and construction of the Baseball Stadium and the Public Infrastructure; and (ii) the County, the City and Marlins Stadium Operator, LLC, another affiliate of the Team (the "Stadium Operator"), are entering into an Operating Agreement (the "Operatin Agreement") providing for the operation and management of the Baseball Stadium by the Stadium Operator. (Capitalized terms used but not defined in this Agreement have the meanings set forth in the Operating Agreement.) C. As a material inducement to the County and the City to enter into the Construction Agreement and the Operating Agreement, the Team has agreed to enter into this Agreement to assure that the Team will play its MLB home games at the Baseball Stadium on the terms and conditions set forth herein. NOW, THEREFORE, the parties agree as follows: 1. Discontinuation of Relocation Discussions. Subject to Sections 2(d) and 3 below, the Team covenants and agrees that from the date of this Agreement and continuing through the earlier of (i) the Non -Relocation Term (as defined in Section 2 below) and (ii) the termination of this Agreement pursuant to Section 5.5, the Team and its agents shall discontinue all discussions, negotiations and efforts to relocate the Team's MLB franchise either temporarily or permanently to any location other than the Baseball Stadium for the period following the Substantial Completion of the Baseball Stadium. 2. Covenant to Play at Baseball Stadium. Subject to Section 3 below, the Team covenants and agrees that throughout the Non -Relocation Term: 1. the Team shall maintain its principal place of business in the City; 2. the Team shall maintain its MLB franchise in the City and use the Baseball Stadium as its home stadium; contraction of the Team by Major League Baseball shall be deemed a violation of this clause; the Team shall not volunteer for contraction or vote in favor of its contraction; 3. the Team shall play all of its regular season and playoff (including World Series) MLB Home Games at the Baseball Stadium; and 4. the Team shall not enter into any contract or agreement, or make any request or application to Major League Baseball, to (i) relocate its franchise outside of the City in violation of clause (b) above or (ii) play any regular season or playoff MLB Home Game in any location other than the Baseball Stadium in violation of clause (c) above, provided that the Team may take the actions otherwise prohibited in this subsection (d) during the last three (3) years of the Term of the Operating Agreement in connection with any proposed relocation or playing of MLB Home Games that would not occur until the conclusion of the Term. The Team shall notify the County and City promptly after entering into any such contract or agreement, or making any such request or application. The covenants by the Team under this Section 2 are collectively referred to in this Agreement as the "Non -Relocation Covenants" and any violation of any of such covenants is referred to as a "Non -Relocation Default". As used in this Agreement, "Non -Relocation Term" means the period commencing with the Substantial Completion Date and ending on the termination of this Agreement pursuant to Section 5.5 of this Agreement. 3. Exceptions. Notwithstanding Sections 1 and 2 above, the Team shall be permitted to play what would otherwise be an MLB Home Game at a location other than the Baseball Stadium: (a) in the case of an Alternate Site Condition as provided in Section 4; (b) in any consecutive five-year period, up to three (3) regular season MLB home games (not including any games played in different locations under Section 3(a) above) in an international or other location as permitted or requested by Major League Baseball; (c) in the case of playoff MLB games, at any location required by Major League Baseball; and (d) in the case of MLB games other than regular season and playoff games, at any location it chooses. If the Substantial Completion Date occurs during an MLB season after one-half of the Team's regular season games have been played, the covenants in Section 1 shall not apply with respect to that MLB season, and the covenants in Section 2 shall not become effective until the start of the succeeding MLB season. The Team may take any actions otherwise prohibited by Section 1 or 2 in connection with any change in location permitted by this Section 3. Without limiting the generality of any other provision of this Agreement, the covenants of the Team provided in Sections 1 and 2 shall not apply if (i) the County and the City 2 Representatives jointly consent in a writing signed by both parties to any action(s) otherwise prohibited under such section; except that any actions which would allow the Team to permanently relocate from the City shall require the approval of the City Commission and the Board of County Commissioners, or (ii) at any time after the termination of this Agreement. 4. Alternate Site Condition. (a) Notwithstanding the provisions of Section 1 or Section 2, if, at any time during the Non -Relocation Term, an Alternate Site Condition shall exist, then (i) the Team shall be entitled to make arrangements to temporarily play at alternate sites for the Team's MLB Home Games and (ii) the Team shall be relieved of its obligations under Sections 1 and 2 and shall be entitled to play its MLB Home Games at such alternate sites, but only during the period of time that any such Alternate Site Condition shall exist; provided, however, that if the Alternate Site Condition shall be of such a nature that its expected expiration cannot reasonably be ascertained by the Team, then the Team shall be entitled to honor any commitment it might reasonably have made to play MLB Home Games at an alternate site even if that commitment extends beyond the date such Alternate Site Condition ends. However, if the County or the City obtain or possess reasonable evidence that the expiration of the Alternate Site Condition can be ascertained, either Party may seek to have such matter determined by Arbitration pursuant to Article 18 of the Operating Agreement. The Team shall not, however, make any commitment that extends beyond the end of the MLB Season in or prior to which such Alternate Site Condition occurs, except that, if, as of December 1 of any Operating Year, such Alternate Site Condition is reasonably expected (as determined in accordance with Section 4(b)) to continue for more than sixty (60) days of any subsequent MLB season, then the Team shall be entitled to commit to play its home games at an alternate site for the duration of such MLB season. (b) Not later than November 1 of any Operating Year in which an Alternate Site Condition continues to exist, the Team shall give the County and City Representatives a written notice setting forth the date it reasonably believes such Alternate Site Condition will terminate (the "Proposed Date"). If the City or County Representative fails to object to such notice within five (5) Business Days, it will be deemed to have accepted the Proposed Date and the Team's right to contract with alternate sites under Section 4(a) shall be based on such date. If the County or City Representative timely objects to the Proposed Date, the Parties shall use good faith efforts to resolve such dispute within the next five (5) Business Days. If the dispute cannot be resolved, either Party may seek to have such date determined by Arbitration pursuant to Article 18 of the Operating Agreement and such panel shall be directed to seek to hear and resolve the dispute by the immediately succeeding December 1. Any determination by the Arbitrator Panel shall be final, binding and non -appealable by the Parties for purposes of determining the Team's right to contract with alternate sites under Section 4(a). The County, the City and the Team shall consult, and reasonably cooperate, with one another following any Alternate Site Condition so that the Team can most effectively find and contract for an alternate site during the duration of such Alternate Site Condition. (c) The Team shall use commercially reasonable and diligent efforts to mitigate and overcome any Alternate Site Condition that results in its regular season or playoff MLB Home Games not being played at the Baseball Stadium to the extent such event or condition is within the reasonable control of the Team, but this undertaking shall not be 3 construed to require the Team to take any action, or to relieve the County or the City of any obligation it may have, with respect to a Condemnation Action, Casualty or Force Majeure that is the County's or City's responsibility under the Operating Agreement or require the Team to take any action with respect to strikes, labor unrest or disputes, or take any action that the Operator is not required to take under the Operating Agreement. (d) As used in this Agreement, "Alternate Site Condition" shall mean the existence of any one of the following: (i) Major League Baseball determines the condition of the Stadium Premises is or may be (e.g., due to an impending or recently occurring storm) such that MLB Rules and Regulations, or a specific Major League Baseball directive, prohibits the playing of MLB Home Games at the Baseball Stadium in a written direction, declaration or ruling addressed to the County, the City and the Team; or (ii) a Governmental Authority determines the use or occupancy of any material portion of the Stadium Premises (excluding the Plaza) is (a) not permitted under any Applicable Law or (b) is unsafe for customary usage. Remedies. 5.1 Non -Relocation Default. Upon the occurrence of a Non -Relocation Default, each of the County and the City shall have the option to pursue any one or more of the remedies set forth in Section 5.2, Section 5.3 or Section 5.4, that may be applicable. Upon the occurrence of any other breach or misrepresentation in this Agreement by the Team, each of the County and the City shall have the option to pursue any one or more of the remedies set forth in Section 5.4. 5.2 Declaratory or Injunctive Relief. Upon the occurrence of a Non - Relocation Default, each of the County and the City shall be entitled to seek injunctive relief prohibiting or mandating action by the Team in accordance with, or declaratory relief with respect to, the Non -Relocation Covenants. In addition, the Team: (a) acknowledges that the Non -Relocation Covenants are an essential part of the bargain and consideration of the Stadium Agreements and are necessary to protect the business and goodwill of the County and the City; (b) recognizes that the Baseball Stadium is being constructed and certain debt is being incurred by the County and the City to permit the MLB Home Games in the Baseball Stadium during the Non -Relocation Term; (c) recognizes that having the Team play its MLB Home Games in the Baseball Stadium throughout the Non -Relocation Term provides a unique value to each of the County and the City, including generating new jobs, additional revenue sources and economic development and increased tourism for the County and the City; and (d) acknowledges and agrees that any breach by the Team of the Non -Relocation Covenants shall cause irreparable and continual harm to the County and the City and that damages for a default under such Non - Relocation Covenants cannot be estimated with any degree of certainty and that monetary damages cannot fairly or adequately compensate the County and the City for a breach of such Non -Relocation Covenants. Accordingly, the Team agrees that, in the event of any of the actual or threatened breach by the Team of any one of the Non -Relocation Covenants (i) each of the County and the City shall be entitled to seek and obtain, a temporary restraining order, together 4 with temporary, preliminary and permanent injunctive or other equitable relief, from any court of competent jurisdiction, to restrain or enjoin any actual or threatened breach by the Team of any Non -Relocation Covenant without the necessity of posting a bond or other security and without any further showing of irreparable harm, balance of harms, consideration of the public interest or the inadequacy of monetary damages as a remedy, (ii) the administration of an order for injunctive relief would not be impractical and, in the event of any breach of any Non -Relocation Covenant by the Team, the balance of hardships would weigh in favor of entry of injunctive relief. and (iii) each of the County and the City may enforce any Non -Relocation Covenant contained in this Agreement through specific performance. The Parties hereby agree and irrevocably stipulate that (x) the rights of each of the County and the City to injunctive relief pursuant to this Non -Relocation Agreement shall not constitute a "claim" pursuant to section 101(5) of the United States Bankruptcy Code (the "Bankruptcy Code") and shall not be subject to discharge or restraint of any nature in any bankruptcy proceeding involving the Team, (y) this Agreement is not an "executory contract" as contemplated by section 365 of the Bankruptcy Code, and (z) action(s) taken by each of the County and the City pursuant to this Section 5.2 shall not in any way prejudice any other rights or remedies that the County and the City may have under Section 5.3 or Section 5.4 of this Agreement or under the other Stadium Agreements if a court of competent jurisdiction fails to provide injunctive or other equitable relief prohibiting the Team's violation of the Non -Relocation Covenants or, in the case of the remedies set forth in Section 5.4, fails to award liquidated damages under Section 5.3. 5.3 Liquidated Damages. The Parties acknowledge and agree that if the County or the City do not obtain injunctive or other equitable relief pursuant to Section 5.2, the County and the City each shall be entitled to seek and obtain relief pursuant to this Section 5.3 in the event a court of competent jurisdiction determines, in a final and non -appealable order, that the Team has breached its covenants under Section 2(c) (a "Final Order"). The Parties also recognize, agree, and stipulate that the financial, civic, and social benefits to the County and the City from the presence of the Team and the playing of its MLB Home Games in Miami, Florida are great, but that the precise value of those benefits cannot be estimated with any degree of certainty due to the number of citizens and businesses that rely upon and benefit from the presence of the Team in Miami, Florida. Accordingly, the magnitude of the damages that would result from a breach of Section 2(c) hereof that is not enjoined by a court of competent jurisdiction notwithstanding the intent of the parties, would be very significant in size but are not readily ascertainable and would include damages to the reputation and finances of the County and the City. Therefore, the Parties agree that in the event of a violation of Section 2(c) hereof, including, without limitation, any such breach arising pursuant to the provisions of section 365(g) of the United States Bankruptcy Code or similar provision of any successor thereto, the County and the City will be entitled to recover from the Team the amounts set forth in Subsection 5.3.1: 5.3.1 Liquidated Damages. If the County or the City do not obtain injunctive or other equitable relief pursuant to Section 5.2 and the violation of Section 2(c) is not cured prior to the date that a court of competent jurisdiction enters a Final Order, the County shall be entitled to receive, as reasonable estimated liquidated damages and not as a penalty, the County Liquidated Damages (as hereafter defined) and the City shall be entitled to receive, as reasonable estimated liquidated damages and not as a penalty, the City Liquidated Damages (as hereafter defined). For purposes of this Agreement, "County Liquidated Damages" shall mean the sum of (a) the then outstanding balance of principal and interest of the County Bonds (as such teen is defined in the Construction Administration Agreement), (b) the unamortized amount of Public Infrastructure Costs and any other costs for the Baseball Stadium Project paid by the County under the Construction Administration Agreement (which amount shall be amortized on a straight line basis over 30 years) without duplicating amounts in (a) if such Public Infrastructure Costs or other costs are funded from County Bonds, and (c) the present value of all Capital Reserve Fund contributions required to be made by the Stadium Operator pursuant to Section 9.3(b) of the Operating Agreement. For purposes of this Agreement, "City Liquidated Damages" shall mean the sum of (i) the then outstanding balance of principal and interest of the City Bonds (as such term is defined in the Construction Administration Agreement), (ii) the unamortized balance of the funds (other than the proceeds of the City Bonds) deposited in the City Account (as such term is defined in the Construction Administration Agreement) in an amount that, together with proceeds of the City Bonds, will be equal to $13,000,000 (which balance shall be amortized on a straight line basis over 30 years), (iii) the present value of all regular season MLB Home Game parking fees owed to the City under Section 63(a) of the City Parking Agreement (assuming 81 regular season MLB Home Games) prior to the end of the Term (as such term is defined in the City Parking Agreement), and (iv) the unamortized amount of Public Infrastructure Costs and any other costs for the Baseball Stadium Project paid by the City under the Construction Administration Agreement (which amount shall be amortized on a straight line basis over 30 years), without duplicating amounts in (i) and (ii) if such Public Infrastructure Costs or other costs are funded from City Bonds or amounts referred to in (ii). 5.3.2 Present Value. All calculations of the present value of any unpaid amounts to be made by the Team under this Section 5.3 shall use a discount rate of seven percent (7%) per annum. 5.3.3 [Intentionally Omitted] 5.3.4 Acknowledgement. The Parties hereby acknowledge that they have negotiated the amounts set forth in this Section 5.3 in an attempt to make a good faith effort in quantifying the amount of damages due to a violation of Section 2(c) hereof despite the difficulty in making such determination. 5.4 Actual Damages. In the event of any breach of or misrepresentation in this Agreement by the Team (other than a Non -Relocation Default subject to the remedies set forth in Section 5.2 or, if applicable, Section 5.3), or in the event of a Non -Relocation Default for which, notwithstanding the intent of the Parties, the County and the City are unable to obtain the relief set forth in Section 5.2 or, if applicable, Section 5.3, the County and the City shall have the right (i) to institute any and all proceedings or claims permitted by law or equity to recover any and all amounts necessary to compensate the County and the City for all damages proximately caused by the Team's breach under this Agreement, and (ii) to institute any and all proceedings or claims permitted by law or equity to compel specific performance with respect to the Team's obligations under this Agreement and one or more actions to seek and obtain a temporary restraining order, together with such other temporary, preliminary and permanent injunctive or other equitable relief, from any court of competent jurisdiction capable of issuing or granting such relief, to compel the Team to comply with or refrain or cease from breaching or violating the terms, covenants and conditions of this Agreement. 5.5 Termination. (a) Upon the entry of a Final Order with respect to a default by the Team under Section 2(c), the County and the City shall have the right, but not the obligation, to give to the Team joint written notice (a "Final Notice") of their intention to terminate this Agreement and all other Stadium Agreements. After the expiration of a period of thirty (30) days from the date such Final Notice isgiven, unless the default is cured, this Agreement and the other Stadium Agreements may, at the sole option of the County and the City, be terminated without liability to the County and the City by further written notice to the Team. If, however, within such thirty (30) day period, the Team's default under Section 2(c) is cured, then this Agreement and the other Stadium Agreements shall not terminate by reason of such Final Notice. (b) This Agreement, and all obligations of the Parties under this Agreement, shall terminate without further action by, or liability to, any Party upon the expiration or termination of the Operating Agreement for any reason expressly permitted under the Operating Agreement; provided that upon a termination of the Operating Agreement jointly by the County and the City upon the entry of a Final Order that the Team has breached Section 2(c) of this Agreement, this Agreement shall only terminate as provided in Section 5.5(a) above. For the avoidance of doubt, until the end of the Non -Relocation Term, the Team shall remain bound by, and shall not be relieved of, its obligations under this Agreement upon a termination by the County and the City of the Operating Agreement due to a breach of Section 2(c) of this Agreement by the Team as described in the preceding sentence. Except for the provisions of this Agreement that are expressly to survive termination, and except as provided in this Section 5.5(b), in the event of a termination of this Agreement and the other Stadium Agreements under this Section 5.5, then all obligations of the Parties under this Agreement and such other Stadium Agreements automatically also shall terminate. (c) Termination of this Agreement and the other Stadium Agreements shall not alter any existing claim of any Party for breaches of this Agreement or the other Stadium Agreements occurring prior to such termination and the obligations of the Parties thereto with respect to such existing claims shall survive termination, including, without limitation, the obligations under Sections 5.1, 5.2, 5.3 and 5.4 hereof. 5.6 Cumulative Remedies. Except as expressly set forth in Section 5.2, Section 5.3 and Section 5.4, each right or remedy of the County and the City provided for herein shall be cumulative of and shall be in addition to every other right or remedy of the County and the City provided for in this Agreement, and the exercise (or the beginning of the exercise) by the County and the City of any one or more of the rights or remedies provided for in this Agreement, shall not preclude the simultaneous or later exercise by the County and the City of any or all other rights or remedies provided for in this Agreement or any other Stadium Agreement or hereafter existing at law or in equity, by statute or otherwise. 6. Payment Upon Sale of Team. Upon either a sale to a third party of a "control interest" (defined as the sale of more than 50% of the voting, actual or beneficial interest in the franchise, occurring within the period commencing with the approval of the Stadium Agreements by the City Commission and the Board of County Commissioners and ending thirty six (36) 7 months following Substantial Completion, whether through a sale of equity shares or partnership interests, to the extent proceeds are paid to the owners of the Team and not contributed to Team Affiliates involved in baseball related businesses) (other than following the death of the controlling owner), the Team shall or shall cause the seller to pay to the County and the City, to be split on a pro -rata basis (including the value of the City's contribution of the Baseball Stadium Site, the amount of the City's and the County's expenditures as required by the Construction Agreement, and the value of the City and the County's respective expenditures associated with the Public Infrastructure) determined by each respective parties' contribution to the Baseball Stadium, an amount equal to the following percentage of the Net Proceeds of the sale that are attributable to any increase in value of the franchise (pro -rated in the case of a sale of the control interest) (the "County/City Equity Payment"): Phase of Project Year Description of Time -Frame Percentaee Construction Phase Year 1 If sale occurs within 12 months of approval date of 18.0% Stadium Agreements Construction Phase Year 2 Sale occurs within 24 months of approval date of 16.2% Stadium Agreements Construction Phase Year 3 Sale occurs within 36 months of approval date of 14.4% Stadium Agreements Construction Phase Year 4 Sale occurs within 48 months of approval date of 12.6% Stadium Agreements, or, prior to Substantial Completion of Stadium, whichever occurs fust Operational Phase Year 1 Sale occurs within 12 months of Substantial, 10.0% Completion Operational Phase Year 2 Sale occurs within 24 months of Substantial 7.5% Completion Operational Phase Year 3 Sale occurs within 36 months of Substantial 5.0% Completion The increase in value shall be based on an assumed value of the franchise of $250,000,000 as of the date of the BSA, which assumed value shall be increased to give effect to any additional debt incurred by, or equity capital contributions made to the Team, Stadium Developer or Operator, including the capital contributions made to, or the debt incurred by, the Stadium Developer or the Team pursuant to the Construction Administration Agreement (net of distributions to any such Team owners) and an imputed increase in value of 8% per annum from the date of the BSA. "Net Proceeds" shall mean the fair market value of all proceeds received from the sale plus any indebtedness for borrowed money of the Team or any Team Affiliate assumed by the buyer in the sale, less (x) the assumed value of the franchise determined under the preceding sentence, (y) all transaction -related expenses and taxes payable by the Team Affiliates and/or their direct and indirect owners to unaffiliated third parties solely as a result of the sale, and (z) any liabilities or obligations retained by the Team (in the case of a sale of the franchise) and/or its direct or indirect owners relating to the Marlins or its affiliated businesses. The Team shall cause its independent accountants to provide the County and City a reasonably detailed calculation of the County/City Equity Payment (on a combined basis) under this Section 6, including a detailed calculation showing the assumed value, Net Proceeds and any other calculations the Team used to determine the amount payable, as promptly as practicable following any applicable sale. If the County or City do not provide a notice of objection within thirty (30) days after receiving the accountant's calculation, such calculation shall be final and binding and payment of any amount due shall be made not later than thirty (30) days after the expiration of such period. If the County or City does provide a notice of objection, it shall specify in reasonable detail the basis for its objections. The objecting Government Party and the Team shall then seek to resolve any disagreements between them within the succeeding period of sixty (60) days. If the objecting Government Party and the Team are unable to resolve the dispute within such sixty (60) day period, each of them shall have the right to commence arbitration in accordance with the Operating Agreement. If the arbitrator shall enter a final, non - appealable order requiring payment from the Team under this Section 6, the Team shall pay such amount within thirty (30) days thereafter. 7. Annual Payment. In consideration for its use of the Baseball Stadium, the Team shall remit to the County an annual amount of $2,300,000 per year, growing at two percent (2%) per year, for each Operating Year during the initial thirty-five year term of the Operating Agreement, in semi-annual installments of $1,150,000 (growing at 2% annually) on April 30 and September 30 of each Operating Year; provided, however, that if Substantial Completion occurs after April 30 but before September 30 in the first Operating Year, then the Team shall remit to the County $1,150,000 within thirty (30) days following Substantial Completion and $1,150,000 on or before September 30, and if Substantial Completion occurs after September 30, the Team shall remit to the County $2,300,000 within thirty (30) days of Substantial Completion but in no event later than October 31 for the first Operating Year. Such annual amount shall be negotiated by the Team and the County prior to the commencement of any Renewal Term. Notwithstanding any other provisions of this Agreement or of the Operating Agreement relating to termination, this Section 7 shall survive any early termination of this Agreement and the Operating Agreement arising from the Operator's termination of the Operating Agreement pursuant to Section 17.5.3 of the Operating Agreement. 8. Indemnification by the Team. The Team shall indemnify and hold harmless the City and the County and each and all of its directors, officers, employees, agents, licensees, independent contractors and consultants or any of them as their interests may appear (collectively, "Government Indemnitees"), of, from and against all claims, fines, claim costs, charges and expenses, liabilities, suits, obligations, demands, actions, settlements, and judgments recovered from any of them, including attorneys' fees incurred to defend such claims (collectively, "Losses"), to the extent such Losses arise from any breach of this Agreement by the Team. Any such indemnification shall be provided in accordance with the indemnification procedures set forth in Section 13.3 of the Operating Agreement. The Team expressly understands and agrees that any insurance protection required by this Agreement or otherwise provided by the Team shall in no way limit the responsibility to indemnify, keep and save harmless and defend the Government Indemnitees as herein provided. VJ 9. Change of Name The Team shall change its name to the "Miami Marlins" prior to the Substantial Completion Date and shall continue to use that name for the Tern-i of the Operating Agreement, including any Renewal Term. 10. Governing Law; Interpretation. This Agreement has been negotiated, executed and delivered in Florida, and shall be governed by the laws of the State of Florida without reference to the conflicts of law principles of that State. 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 be exclusively in Miami, Florida. The headings of sections and paragraphs in this Agreement are for convenience only and shall not be construed in any way to limit or define the content, scope or intent of the provisions hereof. As used in this Agreement, the singular shall include the plural, and masculine, feminine and neuter pronouns shall be fully interchangeable where the context so requires. If any provision of this Agreement, or any paragraph, sentence, clause, phrase or word, or the application thereof, in any circumstances, is adjudicated by a court of competent jurisdiction to be invalid, the validity of the remainder of this Agreement shall be construed as if such invalid part were never included herein. Time is of the essence of this Agreement. Any and all claims, demand or other actions related to this Agreement shall be subject to the exclusive jurisdiction of United States District Court of the Southern District of Florida. The Parties irrevocably submit to such jurisdiction. 11. Entire Agreement. 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. This Agreement may not be modified, amended or waived except by a written instrument signed by each of the parties affected thereby, and approved by the Board and the City Commission, if applicable. Waiver by any Party of any breach of any provision of this Agreement shall not be considered as or constitute a continuing waiver or a waiver of any other breach of the same or other provision of this Agreement. This Agreement shall terminate upon the conclusion of the Term of the Operating Agreement. 12. Representations and Warranties. The Team hereby represents and warrants to the County and the City as follows: (a) the execution, delivery and performance by the Team of this Agreement have been duly authorized by all necessary limited partnership action, and do not and will not contravene or conflict with (i) the limited partnership agreement of the Team, (ii) any provision of Baseball Rules and Regulations, (iii) any law, order, rule, regulation, writ, injunction or decree now in effect of any government, governmental instrumentality or court having jurisdiction over the Team, or (iv) any loan agreement or other contractual restriction binding on or affecting the Team or any of its property or assets, except where any of the foregoing could not reasonably be expected to have a material adverse effect on the Team; (b) this Agreement is a legal, valid and binding obligation of the Team enforceable against the Team in accordance with its terms; (e) except as disclosed in writing to the County or the City, there is no action, proceeding or investigation pending or, to the knowledge of the Team, threatened or affecting the 10 Team, which may adversely affect the ability of the Team to fulfill and perform its obligations and its other undertakings under this Agreement. The Team is not in default with respect to any judgment, order, injunction or decree of any Governmental Authority which is in any respect material to the transactions contemplated in and by this Agreement; (d) the Team is a limited partnership duly formed, validly existing, and in good standing under the laws of the State of Delaware; 5. the Team is a member in good standing of Major League Baseball and is in compliance in all material respects with all applicable Baseball Rules and Regulations which are relevant to the transactions contemplated herein; and 6. the Team has full power and legal right to execute and deliver this Agreement and to perform and observe the provisions of this Agreement. 13. Team Acknowledgment. The Team hereby acknowledges that pursuant to Section 15.30) of the Operating Agreement, in the event there are any unpaid obligations under the Operating Agreement for which the Operator shall not have adequate reserves or reasonably anticipated revenues arising from Revenue Rights, and which are not being contested by the Operator in good faith, the Operator has covenanted and shall not make any further payments to the Team under its license agreement with the Team or any distributions of stadium revenues to the Team Affiliates and/or its partners until all such obligations have been fully satisfied. Successors and Assigns; Third Party Beneficiaries. (a) This Agreement shall bind the Team and its assigns and successors; provided that the Team shall not be entitled to transfer or assign its obligations hereunder without the prior written consent of the Government Parties, which consent shall be in their sole discretion; provided, further, however, that the Team may, without the prior written consent of the Government Parties, transfer and assign its obligations hereunder to any Person (or Affiliate of any Person) that acquires the Team's MLB franchise with the required approval of Major League Baseball, provided that (i) such transferee assumes unconditionally, in a writing reasonably satisfactory to the Government Parties, all of the obligations of the Team under this Agreement, and (ii) such transferee or its Affiliates assume all of the other obligations of the Stadium Operator and its Affiliates under the Stadium Agreements. (b) This Agreement shall bind the Government Parties and their respective assigns and successors; provided that neither of the Government Parties may transfer or assign this Agreement or any of their respective rights and obligations hereunder without the prior written consent of the Team, which consent shall be in the Team's sole discretion. (c) 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; or (b) authorize anyone not a parry to this Agreement to maintain an action pursuant to or based upon this Agreement. 11 15. Nonrecourse Liabilitv of Team 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 Team and their Affiliates (the "Team Personnel") shall not in any way be liable under or with respect to this Agreement; no deficiency or other monetary or personal judgment of any kind shall be sought or entered against any of the Team Personnel with respect to liability under or with respect to this Agreement; no judgment with respect to liability under or with respect to this Agreement shall give rise to any right of execution or levy against the assets of any of the Team Personnel; and the liability of the Team under this Agreement shall be limited to the assets of the Team. 16. 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 Business Day after being sent by reputable overnight carrier, or three 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 parry may specify by notice given pursuant to this Section to the other parties): To the County: County Manager 111 NW 1st Street, Suite 2900 Miami, Florida 33128 Attention: George M. Burgess with a copy to: County Attorney 111 NW 1st Street, Suite 2810 Miami, Florida 33128 Attention: Robert A. Cuevas, Jr. and Geri Keenan To the City: City Manager 444 SW 2n Avenue, 10th Floor Miami, Florida 33130 Attention: Pedro G. Hernandez with a copy to: City Attorney 444 SW 2nd Avenue, 10th Floor Miami, Florida 33130 Attention: Julie O. Bru and Olga Ramirez-Seijas To the Team: 2267 Dan Marino Boulevard Miami, Florida 33056 Attention: David Samson and Derek Jackson with a copy to: Proskauer Rose LLP 1585 Broadway 12 New York, New York 10036 Attention: Wayne D. Katz, Esq. 17. Subordination. The Team acknowledges and agrees that its right to receive any payments from the Stadium Operator (including equity distributions) shall be subordinate to the Stadium Operator's payment obligations under the Operating Agreement. 18. 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 Applicable Law, the Parties shall, to the extent possible, negotiate a revised provision which (a) complies with 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. 19. County Inspector General and Commission Auditor. The attention of the Operator 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 Team Affiliates shall not be responsible for any expense reimbursements or other amounts payable to the OIG or its contractors. The attention of the Operator is hereby directed to Section 2-481 of the County Code related to the Commission Auditor. 20. Sovereign Rights. The County and City retain all of their respective sovereign prerogatives and rights as a county or city under State law with respect to the planning, design, construction, development and operation of the Baseball Stadium. It is expressly understood that notwithstanding any provisions of this Agreement and the Stadium Agreements and the County's and the City's status thereunder: (a) The County and the City retain all of their sovereign prerogatives and rights and regulatory authority (quasi-judicial or otherwise) as a county or city 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 Baseball Stadium, the Baseball Stadium Site, the Public Infrastructure, the Other Development or the Parking Facilities, or the operation thereof, or be liable for the same; and (b) The County and the City shall not by virtue of this Agreement or the other Stadium Agreements be obligated to grant the other, or the Team, any Team Affiliate, or the Stadium Developer any approvals of applications for building, zoning, planning or development under present or future laws and ordinances of whatever nature applicable to the planning, design, construction, development and/or operation of the Baseball Stadium, the Baseball Stadium Site, the Public Infrastructure, the Other Development or the Parking Facilities. 13 Notwithstanding and prevailing over any contrary provision in this Agreement, any County or City covenant or obligation that may be contained in this Agreement shall not bind the Board, the County's Planning and Zoning Department, DERM, the Commission or any other County, City, 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 County or City or other applicable governmental agencies in the exercise of its police power. 21. Force Maieure. If any Party shall be delayed in the performance of any obligation hereunder as a result of a Force Majeure, then the performance of such obligation shall be extended by the length 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 party 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. Without limiting the foregoing, if a Party fails to meet a deadline specified in this Agreement due to another Party's failure to meet a prior and related deadline (or due to an event covered by Section 3.6(f) of the Construction Agreement), such subsequent deadline shall be extended by the number of days the delay was attributable to the prior deadline failure, and the Party failing to meet the prior deadline shall not be relieved of liability for such breach. 22. Counterparts. If this Agreement is executed in several counterparts, each of those counterparts shall be deemed an original, and all of them together shall constitute one and the same instrument. 14 IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have duly executed this Agreement as of the date and year first above written. CITY OF MIAMI, FLORIDA In Pedro G. Hernandez City Manager City of Miami ATTEST: IN City Clerk APPROVED AS TO FORM AND CORRECTNESS: MIAMI-DADE COUNTY, FLORIDA IN George M. Burgess County Manager Miami -Dade County ATTEST: IN Clerk of the Board APPROVED AS TO FORM AND LEGAL SUFFICIENCY: City Attorney County Attorney APPROVED AS TO INSURANCE REQUIREMENTS: LeeAnn Brehm Risk Management Director 15 FLORIDA MARLINS, L.P. By: Double Play Company, its General Partner Name: Title: