HomeMy WebLinkAboutExhibit A- SUB-FINALEXECUTION COPY
CONSTRUCTION ADMINISTRATION AGREEMENT
BY AND AMONG
MIAMI-DADE COUNTY,
THE CITY OF MIAMI
AND
MARLINS STADIUM DEVELOPER, LLC
April _, 2009
TABLE OF CONTENTS
Page
ARTICLE I DEFINED TERMS......................................................................................................1
ARTICLE II CONCEPTUAL DESCRIPTION OF THE BASEBALL STADIUM, PARKING
FACILITIES AND PUBLIC INFRASTRUCTURE....................................................11
ARTICLE III THE BASEBALL STADIUM SITE.......................................................................12
ARTICLE IV BASEBALL STADIUM DESIGN.........................................................................28
ARTICLE V CONSTRUCTION OF BASEBALL STADIUM....................................................33
ARTICLE VI PROJECT FUNDING.............................................................................................44
ARTICLE VII CONSTRUCTION FUNDING.............................................................................50
ARTICLE VIII INSURANCE; CASUALTY...............................................................................52
ARTICLE IX REPRESENTATIONS, WARRANTIES AND COVENANTS ............................56
ARTICLE X DEFAULTS AND REMEDIES...............................................................................62
ARTICLEXI TERMINATION.....................................................................................................65
ARTICLE XII INDEMNIFICATION...........................................................................................67
ARTICLE XIII PARTY REPRESENTATIVES...........................................................................70
ARTICLE XIV ARBITRATION..................................................................................................71
ARTICLE XV MISCELLANEOUS..............................................................................................73
CONSTRUCTION ADMINISTRATION AGREEMENT
This Construction Administration Agreement (this "Agreement") is made and entered
into this day of April, 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 Marlins Stadium Developer, LLC, a Delaware limited liability company
(the "Stadium Developer," and together with the County and the City, the "Parties").
RECITALS
A. On March 3, 2008, the County, the City and Florida Marlins, L.P. (the "Team")
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 to be located in the City.
B. This Agreement provides for the planning, design and the construction of the
Baseball Stadium (as defined below) and the Public Infrastructure (as defined below) by the
Stadium Developer. The Stadium Developer and the County and City have determined that the
planning, design and construction of the Baseball Stadium and the performance of this
Agreement are in the best interests of the County and the City and will serve a paramount public
purpose. Specifically, but without limitation, such operation will support the development and
improve the quality of life for the citizens of the County and the City; benefit their convention,
tourism, economic development and entertainment industries and the local economy; encourage
the growth of cultural, tourism, economic development and entertainment opportunities; and
become an integral part of the revitalization and resurgence of the City and a prominent symbol
of the vibrancy of the County and the City.
C. Contemporaneously with the execution of this Agreement, the County, the City,
the Team and certain affiliates of the Team are entering into the other Stadium Agreements (as
defined below) pursuant to which, among other things, the Team will guaranty the Stadium
Developer's obligations under this Agreement and use the Baseball Stadium for its home
baseball games.
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 14.1
"Acceptance Date" means August 29, 2008.
"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, implementing order, charter, resolution, order, rule, regulation, judgment, decree, writ,
injunction, franchise, permit or license, of any Governmental Authority, now existing or
hereafter enacted, adopted, promulgated, entered, or issued.
"Architect" means HOK Sport, Inc., currently doing business as HOK
Sport+Venue+Event, or such other architectural firm as the Stadium Developer may retain as the
principal architect for the Baseball Stadium or, as the case may be, as the principal architect for
the Public Infrastructure, and their respective successors or assigns.
"Architect Contract" means (a) with respect to the Baseball Stadium Work, the contract
between the Stadium Developer and the Architect providing the architectural and engineering
services for the Baseball Stadium, and (b) with respect to the Public Infrastructure Work, the
contract between the ' Stadium Developer and the Architect providing the architectural and
engineering services for the Public Infrastructure Work.
"Assurance Agreement" means the Assurance Agreement among the County, the City
and the Team dated as of the date of this Agreement, as it may be amended and/or restated.
"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 building and improvements to be constructed on the
Baseball Stadium Site as described in Article II. The Baseball Stadium does not include the
Parking Facilities, Public Infrastructure or Other Development.
"Baseball Stadium Project" means the design, development and construction of the
Baseball Stadium in accordance with this Agreement. The Baseball Stadium Project does not
include the Parking Facilities, Public Infrastructure or Other Development.
"Baseball Stadium Site" is defined in Section 3.1.
"Baseball Stadium Work" means all work to be performed to construct the Baseball
Stadium in accordance with this Agreement.
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"Board" means the Board of County Commissioners of Miami -Dade County.
"Bonds" means, collectively, the City Bonds and the County Bonds.
"BSA" is defined in the Recitals of this Agreement.
"Builder's Risk Insurance Proceeds" means any proceeds paid pursuant to the builder's
risk insurance policy referred to in Section 8.1 and designated for the repair, restoration,
replacement or rebuilding of all or any part of the Baseball Stadium or the Public Infrastructure,
as the case maybe.
"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.
"Capital Reserve Fund" is defined in the Operating Agreement.
"Casualty" is defined in Section 8.3(a).
"Casualty Repair Work" is defined in Section 8.3(a).
"CBE-A/E Program" means the County's Community Business Enterprise Program for
architectural, engineering, landscape architectural, surveying and mapping professionals as set
forth in Section 2-10.4.01 of the County Code.
"Certificate of Occupancy" means a certificate issued by the City's building official
permitting public occupancy and use of the Baseball Stadium.
"Challenge" is defined in Section 9.4(d).
"Change Order" means a written instrument signed by the Stadium Developer and the
Construction Manager authorizing a change in the scope of Work, the GMP, the Public
Infrastructure GMP and/or the date of Substantial Completion for the Baseball Stadium or the
Public Infrastructure, as the case may be.
"City" is defined in the Preamble to this Agreement.
"City Account" means a segregated deposit account funded and maintained by the City in
accordance with Articles VI and VII.
"Cit Bim" is defined in Section 6.3.
"City Code" means the City of Miami Code.
"City Parking Agreement" means the City Parking Agreement among the City, the
Stadium Operator and the County dated as of the date of this Agreement, as it may be amended
and/or restated.
"City Personnel" is defined in Section 15.8.
"City Representative" is defined in Section 13.1.
"Claim" is defined in Section 12.3.
"CM Services Security" is defined in Section 3.8(g) with respect to the Public
Infrastructure Work and is defined in Section 5.2(e) with respect to the Baseball Stadium Work.
"Commencement of Construction" means the occurrence of all of the following: (i) with
respect to the Baseball Stadium, the building permit needed to begin construction of the Baseball
Stadium has been issued and the Stadium Developer has begun physical construction of the
Baseball Stadium foundation and (ii) with respect to the Public Infrastructure, the required
permit(s) needed to begin construction of the Public Infrastructure have been issued, and the
Stadium Developer has begun physical construction of the Public Infrastructure.
"Commission" means the City Commission of the City of Miami.
"Construction Documents" means the architectural drawings, specifications and other
documents, as may be amended from time to time in accordance with this Agreement, setting
forth the design of the Baseball Stadium or the Public Infrastructure, as the case may be, and the
requirements for their respective construction in sufficient detail for the permitting and
construction of the Baseball Stadium or the Public Infrastructure, as the case may be.
"Construction Management Contract" means (a) with respect to the Baseball Stadium
Work, the contract between the Stadium Developer and the Construction Manager providing
construction management and/or general contracting services for the Baseball Stadium, and (b)
with respect to the Public Infrastructure Work, the contract between the Stadium Developer and
the Construction Manager providing construction management and/or general contracting
services for the Public Infrastructure Work.
"Construction Manager" means (a) with respect to the Baseball Stadium Work, an entity
selected by the Stadium Developer to provide construction management and/or general
contracting services with regard to the construction and development of the Baseball Stadium,
and (b) with respect to the Public Infrastructure Work, an entity selected by the Stadium
Developer to provide construction management and/or general contracting services with regard
to the construction and development of the Public Infrastructure.
"Construction Schedule" means the construction schedule or schedules relating to, as the
case may be, the Baseball Stadium Work or the Public Infrastructure Work, to be prepared by the
Construction Manager pursuant to the requirements of the Construction Management Contract,
as such schedules are updated in accordance with Section 5.7.
"County' is defined in the Preamble to this Agreement.
"County Account" means, with respect to each series of County Bonds, a segregated
deposit account funded and maintained by the County in accordance with Articles VI and VII.
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"County Bonds" is defined in Section 6.2.
"County Code" means the Miami -Dade County Code.
"County Cure Period" is defined in Section 3.10.
"County Lots" is defined in Section 3.10.
"County Lots Permitted Exceptions" is defined in Section 3.10.
"County Lots Title Defect is defined in Section 3.10.
"County Personnel" is defined in Section 15.7.
"County Representative" is defined in Section 13.1.
"Default" means a Government Party Default or Stadium Developer Default.
"DERM" means the County's Department of Environmental Resources Management.
"Design Development Documents" means drawings and specifications, as may be
amended from time to time in accordance with this Agreement, based upon and refining the
Schematic Design Documents illustrating the scope, relationship, forms, size and appearance of
the Baseball Stadium or the Public Infrastructure, as the case may be, by means of plans, sections
and elevations, typical construction details, and equipment layouts.
"Design Documents" means the most recent of the Schematic Design Documents, Design
Development Documents and Construction Documents.
"Design Professionals" means the Architect and the engineers and consultants retained by
the Architect or the Stadium Developer or other Team Affiliate, as the case may be, from time to
time to provide architectural, design and design -related engineering services for the Baseball
Stadium or the Public Infrastructure, as the case may be.
"Development Requirements" is defined in Section 3.6(a).
"Development Site" means all land within the Entire Site (other than the Baseball
Stadium Site), as may be amended from time to time by notice from the City, provided that the
amendment shall not affect the Baseball Stadium Site or the sites selected for the Parking
Facilities.
/",Draw Down Schedule" is defined in Section 5.7(c).
"Easements" is defined in Section 3.5(b).
"Encroaching Easements" is defined in Section 3.4(a)(1).
"Entire Site" means the area of land described in Exhibit B.
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"Expedited ADR" is defined in Section. 14.2.
"Expedited ADR Dispute" is defined in Section 14.2.
"Final Completion" means the occurrence of all of the following: (i) the Architect has
signed and delivered to the Stadium Developer and the Government Representatives a certificate
of final completion in accordance with the Architect Contract, (ii) a Certificate of Occupancy has
been issued for the Baseball Stadium Project or any required final inspection has been approved
for the Public Infrastructure, and (iii) punch list items have been completed.
"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 Party
claiming an excuse from performance.
"Funding Accounts" means, collectively, the City Account, the County Account and the
Stadium Developer Account.
"GMP" is defined in Section 5.2(c).
"Government Costs" means costs incurred by the Government Parties in connection with
the performance of their obligations under the BSA and the Stadium Agreements, including (i)
costs incurred in connection with the issuance of the Bonds, (ii) costs relating to Other
Development or the Parking Facilities, (iii) costs for third party professional assistance in
connection with the Baseball Stadium Project, including legal counsel and financial and other
consultants, (iv) costs incurred by the Government Parties under Article III, (v) costs relating to
the demolition of the Orange Bowl and related debris removal, (vii) costs relating to the IPSIG,
and (vii) overhead costs and costs relating to employees of the Government Parties (except for
small business program monitoring costs payable by the Stadium Developer under Section 5.14),
but not including Public Infrastructure Costs (which shall be paid in accordance with Section
3.8).
"Government Part v" means each of the County and the City.
"Government Party Default" is defined in Section 10.2.
"Government Relief Grant" means a financial grant or other non-refundable relief or
assistance from the Federal Emergency Management Agency, the Department of Homeland
Security, or any other federal, State or local Governmental Authority.
"Government Representatives" is defined in Section 13.1.
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"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.
"Governmentally Caused Overruns" is defined in Section 6.5.1.
"Indemnified Party" is defined in Section 12.3.
"Indemnitor" is defined in Section 12.3.
"Insurance Policies" is defined in Section 8.1.
"IPSIG" is defined in Section 15.24(b).
"Lien" means any encumbrance, lien, security interest, pledge, easement, license, right-
of-way, covenant, condition, restriction or claim in, to, against or in any way applicable to any
portion of the Baseball Stadium, the Baseball Stadium Site, the Public Infrastructure, the Public
Infrastructure sites or the County Lots, as the case may be.
"Major League 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, MLI 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.
"Master Project Schedule" means the project schedule using a critical path method,
prepared by the Construction Manager, that identifies, coordinates and integrates the anticipated
design and construction milestones for the Baseball Stadium Project, the Public Infrastructure
Work, the Parking Facilities (to the extent information is conveyed to the Construction
Manager), the Stadium Developer's responsibilities, Government Authority reviews and other
activities as are necessary for the timely completion of the Work, as such schedule shall be
revised and updated in accordance with Section 5.7.
"MLB Home Games" is defined in the Operating Agreement.
"MLB Jewel Events" is defined in the Operating Agreement.
"Neutral" is defined in Section 14.2.
"Non Ad -Valorem Revenues" means all legally available revenues and taxes of the
County derived from any source whatsoever other than ad valorem taxation on real and personal
property.
"Non -Relocation Agreement" means the Non -Relocation Agreement among the County,
the City and the Team dated as of the date of this Agreement, as it may be amended and/or
restated.
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"Other Development' is defined in Section 3.9(a).
"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.
"Parking Facilities" is defined in the City Parking Agreement.
"Parties" is defined in the Preamble to this Agreement.
"Permitted Exceptions" means the title exceptions with respect to the Baseball Stadium
Site listed on Exhibit C (unless the exceptions are of the type cured by approval of the Replat
including those specifically listed in Section 3.4).
"Person" means any natural person, firm, partnership, association, corporation, limited
liability company, trust, public body, authority, governmental unit or other entity.
"Project Coordination Team" is defined in Section 5.4.
"Project Program Statement" means the document that specifies, among other things: (i)
the physical components of the Baseball Stadium; (ii) the location and approximate space
requirements for those components; (iii) the formulation of how those spaces will be used; and
(iv) general descriptions of the following stadium systems: food services, concessions, sound,
HVAC, security, scoreboard, electrical and emergency generation, lighting and
telecommunications and data. The Project Program Statement is attached as Exhibit D and may
be amended as provided in this Agreement.
"Public Infrastructure" means the public infrastructure improvements described on
Exhibit G.
"Public Infrastructure Budget" means the budget for the Public Infrastructure Costs
attached hereto as Exhibit G.
"Public Infrastructure Costs" means all hard costs, Public Infrastructure Design Costs and
other costs incurred by the Parties in accordance with this Agreement for the design,
development, construction and completion of the Public Infrastructure. Public Infrastructure
hard costs include the cost of all labor and all materials incorporated into the Public
Infrastructure.
"Public Infrastructure Cost Overrun" is defined in Section 6.5.2
"Public Infrastructure Delay and Scheduling Overrun" means any cost overrun that (a)
arises from delays in the performance of the Public Infrastructure Work by the Construction
Manager or its subcontractors; (b) is caused by Construction Manager's failure to properly
schedule and coordinate the Baseball Stadium Work and the Public Infrastructure Work; or (c)
arises from delays resulting from the performance by the Architect of its obligations under the
Architect Contract.
"Public Infrastructure Design Costs" means the Public Infrastructure Costs to be paid
directly by the Stadium Developer or other Team Affiliates to cover fees and costs relating to the
Architect, the civil engineer, and other design professionals incurred in connection with the
Public Infrastructure.
"Public Infrastructure Funding Account" means each account or sub -account established
by each of the County and the City for funding the Public Infrastructure Work as set forth in
Section 7.1(e). ^
"Public Infrastructure GMP" is defined in Section 3.8(e).
"Public Infrastructure Site" means the site of the Public Infrastructure Work.
"Public Infrastructure Work" means all work to be performed to construct the Public
Infrastructure in accordance with this Agreement.
" (OSR" means a fast food restaurant or food shop in which meals or food items are sold at
a counter or window, or for take-out purposes. "QSR" does not include casual dining restaurants
with waitered sei vice or Latin restaurants that may serve croquettes or pastries from a counter or
window (such as Cafe Versailles and La Carretta).
"Reimbursable Interim Costs" mean the lesser of (a) the total reasonable actual out-of-
pocket costs (as supported by reasonable documentation) expended by all three Parties relating to
the Baseball Stadium Project and the Public Infrastructure, from March 3, 2008 through the date
of the notice of tennination (in the categories detailed in the Schedule of Eligible Reimbursable
Expenses provided in Exhibit I-1), which shall not include any costs expended by the City
relating to the demolition of the existing Orange Bowl stadium, any other costs that would have
been incurred by the City if there were no Baseball Stadium Project or that can be used towards a
separate City development project or that otherwise can be used to provide value to the City
unless such costs were expressly set forth in Exhibit I, or lost profits, lost tax collections, lost
opportunities for economic development, and the like; or (b) $20,500,000. For purposes of this
definition, any reasonable actual out-of-pocket costs expended by the Team during the time
periods set forth above shall be treated as expenditures by the Stadium Developer.
"Reimbursable Interim Costs Limitation" means (i) if a termination under Section 11.1.1
occurs prior to June 1, 2009: (a) with respect to the Stadium Developer, $14,000,000, (b) with
respect to the County, $4,000,000, and (c) with respect to the City, $2,500,000; and (ii) if a
termination under Section 11.1.1 occurs between June, 1, 2009 and July 1, 2009: (a) with respect
to the Stadium Developer, $10,000,000, (b) with respect to the County, $7,000,000, and (c) with
respect to the City, $3,500,000.
"Replat" is defined in Section 3.4(a).
"Schedule of Eligible Reimbursable Expenses" shall mean the schedule attached hereto
as Exhibit I-1.
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"Schematic Design Documents" means the conceptual design documents of the Baseball
Stadium, or the Public Infrastructure, as the case may be, as may be amended from time to time
in accordance with this Agreement, illustrating the scale and relationship of the Baseball Stadium
components or the Public Infrastructure components, as the case may be.
"Stadium Agreements" means, collectively, this Agreement, the Operating Agreement,
the Non -Relocation Agreement, the City Parking Agreement, and the Assurance Agreement.
"Stadium Cost Overruns" is defined in Section 6.5.1.
"Stadium and Parking MUSP" is defined in Section 3.4(b).
"Stadium Developer" means Marlins Stadium Developer, LLC, a Delaware limited
liability company, and its permitted successors and assigns.
"Stadium Developer Account" means a segregated deposit account funded and
maintained by the Stadium Developer in accordance with Articles VI and V1I.
"Stadium Developer Default" is defined in Section 10.1.
"Stadium Developer Personnel" is defined in Section 15.6.
"Stadium Developer Representative" is defined in Section 13.2.
"Stadium Developer Soft Costs" means the Stadium Project Costs to be paid directly by
the Stadium Developer or other Team Affiliate to cover the fees and costs relating to the Design
Professionals and the Stadium Developer's owner's representative, legal fees and other
consultant fees (but excluding legal fees and costs related to pending or threatened litigation
against the County and/or the City, including mediation and arbitration) incurred after March 3,
2008 in connection with the Baseball Stadium Project.
"Stadium Events" is defined in the Operating Agreement.
"Stadium Operator" means Marlins Stadium Operator, LLC, a Delaware limited liability
company, and its permitted successors and assigns.
"Stadium Project Budget" is defined in Section 5.6.
"Stadium Project Costs" means all hard costs, Stadium Developer Soft Costs and other
costs incurred by the Stadium Developer and other Team Affiliates in accordance with the BSA
and this Agreement for the design, development, construction and completion of the Baseball
Stadium. Project hard costs include the cost of all labor, construction materials, furniture,
fixtures and equipment incorporated into the Baseball Stadium, but excludes Public
Infrastructure Costs.
"State" means the State of Florida.
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"Substantial Com lets tion" means (a) with respect to the Baseball Stadium, the occurrence
of both of the following: (i) the Architect has signed and delivered to the Stadium Developer and
the Government Representatives a certificate certifying that the Baseball Stadium or Public
Infrastructure, as the case may be, has been substantially completed subject to the completion of
minor punch list items that do not materially affect the use or occupancy of the Baseball Stadium
or Public Infrastructure, as the case may be, and (ii) a temporary or permanent Certificate of
Occupancy has been issued in respect of the Baseball Stadium, and (b) with respect to the Public
Infrastructure, final inspections and acceptance by the appropriate Governmental Authorities.
"Targeted Completion Date" means April 1, 2012.
"Team" means Florida Marlins, L.P., a Delaware limited partnership, and its permitted
successors and assigns.
"Team Affiliate" means the Team, the Stadium Developer, the Stadium Operator and any
other entity that is an Affiliate of the Team.
"Team Depreciable Assets" means any tangible personal property included in or relating
to Stadium Premises, whether located within public spaces in the Stadium Premises or in the
Exclusive Areas, to the extent paid for or provided by the Stadium Developer, the Operator, the
Team, or any of their licensees, Users, Service Providers or Affiliates, regardless of the legal
ownership for non -income tax purposes.
"Title Defect" means any Lien or other condition which is not a Permitted Exception and
would (i) render the title for the Baseball Stadium Site unmarketable or to have diminished
marketability or (ii) impair the use of the Baseball Stadium Site for the purposes intended.
"Transfer" is defined in Section 15.10(a).
"Unforeseen Site Conditions" shall mean unsuitable soil conditions, man-made
obstructions, abandoned foundations, utilities and natural underground obstructions or any other
physical condition which may alter or delay any part of the Work.
Work.
"WASD" means the Miami -Dade Water and Sewer Department.
"Warrant" is defined in Section 3.5(a).
"Work" means collectively the Baseball Stadium Work and the Public Infrastructure
ARTICLE II
CONCEPTUAL DESCRIPTION OF THE BASEBALL STADIUM, PARKING FACILITIES
AND PUBLIC INFRASTRUCTURE
The Baseball Stadium shall be a first class baseball stadium to be owned by the County
and constructed on the Baseball Stadium Site. The Baseball Stadium shall have a retractable
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roof, a natural grass playing field, a capacity of approximately 37,000 spectators, including
approximately 3,000 club seats, approximately 60 private suites, and concession, entertainment
and retail areas, fixtures, furnishings, equipment, features, systems and amenities comparable
with other recently constructed Major League Baseball ballparks with similar capacity and
amenities in San Diego, St. Louis, Houston, Philadelphia, Pittsburgh, and Milwaukee. The
features of the Baseball Stadium, including Team offices and retail space, are more particularly
described in the Project Program Statement and will be reflected in the Design Documents. The
Baseball Stadium will be supported by the Public Infrastructure and Parking Facilities that will
be constructed and operated as provided in the City Parking Agreement.
ARTICLE III
THE BASEBALL STADIUM SITE
3.1 The Site. The Baseball Stadium will be developed on approximately 16.975 acres
of land within the Entire Site identified in Exhibit A (the "Baseball Stadium Site"). The Baseball
Stadium Site is further defined by the legal description set forth in the ALTA/ACSM LAND
TITLE SURVEY, initially prepared on April 9, 2007 (boundary) and February 14, 2008
(topographic portion), and updated on October 7, 2008 and November 18, 2008, a copy of which
is on file with the Clerk of the Board and incorporated herein by reference. The Baseball
Stadium Site includes a plaza area, as indicated on Exhibit A, that will be open to the general
public as provided in the Operating Agreement. The City has not taken any action since the
Acceptance Date and shall not take any action that to its knowledge would impair the condition
of the Baseball Stadium Site, or the portion of the Entire Site upon which the Parking Facilities
or Public Infrastructure will be constructed. If any Title Defects arose or arise between February
13, 2008 and the date of conveyance of the Baseball Stadium Site under Section 3.5, the City
shall use reasonable commercial efforts to cure any such Title Defects within thirty (30) days,
provided that (i) the City shall not be required to institute any litigation or eminent domain
proceedings, and (ii) the City shall not be required to expend funds for such purpose, other than
the fees of its legal counsel.
3.2 Site Conditions; Environmental Remediation and Insurance.
(a) Pursuant to Section 4.01(e) of the BSA and subject to the terms of this
Agreement, the Team accepted the condition of the Baseball Stadium Site on the Acceptance
Date for the purpose of constructing the Baseball Stadium. As necessary to fulfill its obligations
to cause the completion of the construction of the Baseball Stadium, the Stadium Developer
accepts complete responsibility for conditions encountered at the Baseball Stadium Site which
are (i) Unforeseen Site Conditions; (ii) subsurface or otherwise concealed physical conditions
which differ materially from those indicated or assumed in the Construction Documents; (iii)
unknown physical conditions of an unusual nature which differ materially from those ordinarily
found to exist and generally recognized as inherent in construction activities of the character
provided for in the Construction Documents; and (iv) any dewatering activities necessary to
construct the Baseball Stadium at the Baseball Stadium Site. The Stadium Developer shall be
responsible for the removal or relocation of man-made obstructions, abandoned foundations,
utilities and natural underground obstructions required for the completion of the Baseball
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Stadium Work whether identified or not in the Construction Documents. The Stadium
Developer also accepts responsibility for any site conditions, including environmental
conditions, caused, disturbed or exacerbated by the Stadium Developer during the construction
of the Baseball Stadium. Subject to paragraph (c) and the other terms hereof, the Stadium
Developer agrees to be responsible and pay for all environmental remediation work that is
required on the Baseball Stadium Site by Applicable Law in order to complete the construction
of the Baseball Stadium. With respect to any environmental condition caused by or exacerbated
by the activities of the Stadium Developer, this obligation shall survive the termination of this
Agreement and shall obligate the Stadium Developer to complete all required remediation
activities, included, but not limited to, all required testing, monitoring and closure conditions.
The County and the Stadium Developer, on its own behalf and on behalf of any Team Affiliate,
further agree not to initiate any claims or suits against the City for any damages any of them
suffers from an environmental condition on the Baseball Stadium Site existing prior to the
Acceptance Date, but shall have the right to join the City in the case of any third party claims or
suits filed against the County, the Stadium Developer, or a Team Affiliate, arising from an
environmental condition on the Baseball Stadium Site existing prior to the Acceptance Date.
The Stadium Developer, on its own behalf and on behalf of any Team Affiliate, further agrees
not to initiate any claims or suits against the County for any damages any of them suffers from
an environmental condition on the Baseball Stadium Site but shall have the right to join the
County in the case of any third party claims or suits filed against the Stadium Developer, or a
Team Affiliate, arising from an environmental condition on the Baseball Stadium Site. The
Stadium Developer ,on its own behalf and on behalf of any Team Affiliate, agrees to indemnify,
defend and hold harmless the County and the City from and against any claims arising from an
environmental condition caused by or exacerbated by the Stadium Developer and/or any Team
Affiliate in performing its activities under this Agreement on the Baseball Stadium Site arising
subsequent to the Acceptance Date.
(b) In connection with the Stadium Developer's environmental remediation
responsibility, as set forth in the paragraph (a) above, and in satisfaction of the requirements of
Section 4.01(a)(iii) of the BSA, the Team has procured, and the City has reimbursed the Team
the cost of the premium for, an environmental pollution liability insurance policy, bound as of
the Acceptance Date. The City shall be responsible for the payment of any deductibles required
for claims made under the environmental insurance policy.
(c) The City also agrees that it will, at its expense, remediate 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 Entire Site located at 1600 Northwest 7th Street,
which is described in the Phase I Report as having been used in the past as a petroleum filling
station, and any environmental contamination existing on, originating from, or affecting the
Public Infrastructure sites which are located within the Entire Site.
(d) As necessary to complete its construction obligations related to the Public
Infrastructure Work, the County and the City accept complete responsibility for conditions
encountered at the Public Infrastructure Site which are (i) Unforeseen Site Conditions; (ii)
subsurface or otherwise concealed physical conditions which differ materially from those
indicated or assumed in the Construction Documents; and (iii) unknown physical conditions of
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an unusual nature which differ materially from those ordinarily found to exist and generally
recognized as inherent in construction activities of the character provided for in the Construction
Documents. The Public Infrastructure Work shall include the removal or relocation of man-
made obstructions, abandoned foundations, utilities and natural underground obstructions
required for the completion of the Public Infrastructure Work whether identified or not in the
Construction Documents. The County's and City's responsibilities with respect to the foregoing
are further defined in Section 3.8 hereof.
(e) The indemnification obligations and covenants not to sue contained in this
Section 3.2 shall survive the expiration or earlier termination of this Agreement.
3.3 Title Insurance. The County and the Team Affiliates shall not be obligated to
purchase a title insurance policy, but shall be free to purchase a title policy from any title
company or companies they select (it being understood that the City shall have no obligations
with respect to such policy except as provided below). The City shall execute such customary
affidavits (gap, no -lien and possession) as may be reasonably required by the title company in
order to delete the standard exceptions, but not to delete any Permitted Exceptions, from the title
commitment and title policy, if the County and/or Team Affiliates elect to obtain a title policy.
If the Team Affiliates and the County agree that title insurance for the land is required, the
County shall procure such policy. If the cost of the title insurance policy is greater than $10,000,
the cost of the policy shall be borne equally between the Team Affiliates and the County. If the
cost of the title insurance policy is less than or equal to $10,000, the Team Affiliates shall bear
the cost.
3.4 Replatting; Abandonment of Easements and Rights of Way, MUSP.
(a) The City has commenced and shall diligently pursue the approval of a
replat (the "Re lomat") of portions of the Entire Site for the purpose of:
(i) abandoning and/or relocating those easements and rights of way
located within the Entire Site which would interfere with the construction, location or operation
of the Baseball Stadium or the Public Infrastructure (the "Encroaching Easements"); and
(ii) recording the subdivision of the relevant portions of the Entire Site
and any easements necessary for the construction or operation of the Baseball Stadium.
The contemplated Replat submitted to Miami -Dade County and the City of Miami, originally
dated April 9, 2007, with updates on February 14, 2008 and October 17, 2008, and prepared by
Fortin, Leavy, Skiles, Inc., is on file with the Clerk of the Board and is incorporated herein by
reference. The City shall pay all the expenses incurred in connection with the approval and
recordation of the Replat, including the abandonments, relocations and other work necessary for
such approval and recordation.
(b) The Stadium Developer and the City jointly shall diligently pursue the
approval of a Major Use Special Permit for the purpose of enabling the County, the Stadium
Developer or the City, as appropriate, to procure a building permit for the construction of the
Baseball Stadium and the Parking Facilities (the "Stadium and Parking MUSP"). The Stadium
Developer, as it relates to the Baseball Stadium portion of the Stadium and Parking MUSP, and
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the City, as it relates to the Parking Facilities portion of the Stadium and Parking MUSP, each
shall pay for the respective studies, plans and other submissions which are required for the
Stadium and Parking MUSP. The City shall be responsible for any permits and costs associated
with the Other Development.
(c) The Parties shall reasonably cooperate with one another in connection
with the applications for the Replat and any amendments and supplements thereto and shall
promptly and diligently, and as often as may be required, join in the execution of applications,
submissions and other documents and appear at meetings, staff conferences, public hearings and
such other events of the City, the County, the State and the United States, and their respective
agencies, departments, boards and commissions, as required. The Parties shall work diligently
and cooperatively to expeditiously complete the Replat. Any necessary abandonment of roads,
abandonment and relocation of utilities, and abandonment or relocation of Encroaching
Easements required for the Replat were included with the Replat as described above.
(d) The Parties shall reasonably cooperate with one another in connection
with the application for the Stadium and Parking MUSP, and shall promptly and diligently, and
as often as may be required, join in the execution of applications, submissions and other
documents and appear at meetings, staff conferences, public hearings and such other events of
the City, the County, the State and the United States, and their respective agencies, departments,
boards and commissions, as required.
3.5 Conveyance of Baseball Stadium Site; Easements.
(a) Promptly following but in no event later than thirty (30) days following
the approvals of the applications for the Replat and the Stadium and Parking MUSP , and the
recordation of the Replat, the City shall convey to the County, and the County shall accept from
the City, fee simple title to the Baseball Stadium Site. The conveyance shall be by special
warranty deed in the form attached hereto as Exhibit E (the "Warranty Deed"), free and clear of
all Liens, leasehold or other possessory interests except for Permitted Exceptions. The Warranty
Deed shall provide for reversion of title to or at the direction of the City if (i) the Operating
Agreement is terminated and (ii) the County fails to secure a replacement professional sports
franchise to use the Baseball Stadium within three (3) years after such termination.
(b) The City shall, upon Commission approval, grant to the County the
following easements (collectively, the "Easements") at the times indicated below:
(i) contemporaneously with the conveyance of the Baseball Stadium
Site, an access easement for ingress and egress to the Baseball Stadium Site, in a form and
substance reasonably satisfactory to the Parties;
(ii) prior to the Commencement of Construction of the Public
Infrastructure Work, an easement for any land underlying any of the Public Infrastructure as
shall be reasonably requested by the County in order to improve such land, in a form and
substance reasonably satisfactory to the Parties; and
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(iii) prior to the Commencement of Construction, a temporary
construction easement to use portions of the Entire Site as specified in such easement for
construction and staging for construction of the Baseball Stadium or Public Infrastructure (as
applicable), in a form and substance reasonably satisfactory to the Parties.
The Parties shall take such necessary steps as are required to give proper effect to such
Easements. Prior to the Stadium Developer's and/or County's exercise of rights under such
Easements, the Stadium Developer and/or the County shall provide evidence of insurance in
accordance with the terms of Article VIII of this Agreement or as otherwise acceptable to the
City. Such Easements shall terminate upon the reversion of title to the Baseball Stadium Site
pursuant to Section 3.5(a), or as otherwise specified therein.
(c) In addition, at any time after the effective date of this Agreement, the City
shall grant to the County, subject to Commission approval, any other easements that are
reasonably necessary to complete the construction of the Baseball Stadium and the Public
Infrastructure Work.
(d) The County shall have the right to grant utility, access and other similar
easements affecting the Baseball Stadium Site and to construct and install utility lines and other
improvements in accordance with such easements provided that such work is fully coordinated
and does not unreasonably interfere with the construction or operation of the Baseball Stadium.
The City shall join in such grants of easement as reasonably necessary to give effect thereto. The
City shall grant such utility, access and other similar easements on the Development Site as the
County and Team Affiliates may reasonably request to facilitate the development, construction
and operation of the Baseball Stadium and Public Infrastructure.
(e) The County shall grant to the City such utility, access and other similar
easements on the Baseball Stadium Site as the City may reasonably request to facilitate the
development, construction and operation of the Other Development, provided that such
easements do not interfere with the construction, use or operation of the Baseball Stadium or the
Public Infrastructure, as the case may be.
3.6 Development Requirements.
(a) The City or the County, as appropriate, in consultation with the Stadium
Developer, shall expeditiously process all applications for consents, approvals and permits
necessary to allow for the timely construction of the Baseball Stadium, the Parking Facilities and
the Public Infrastructure, which may include, if applicable, without limitation: (i) the
applications or petitions which otherwise require governmental approvals described in Section
3.4, (ii) major use special permit and any other special permits and/or special exception
applications, (iii) road, alley, and/or public right of way closure(s) and relocation petitions, (iv)
re -platting petitions, (v) re -zoning or zoning variance applications, (vi) DERM and WASD
approvals, (vii) petitions to relocate all public and private utilities, including, without limitation,
electric, gas, cable, telecommunication, water, sewer, and storm drainage facilities, located
within the Baseball Stadium Site to areas to be located outside the boundary of the Baseball
Stadium Site, (viii) Federal Aviation Administration clearance letter, if needed, for the Baseball
Stadium and (ix) building permits (collectively, including (i) — (ix), the "Development
16
Requirements"). The City or the County staff, as appropriate, shall serve as the applicant or co -
applicant for any government approval processes relating to the Development Requirements for
the Baseball Stadium. County Manager and City Manager, or their respective designees, shall,
within ten (10) Business Days following receipt of a written request from the Stadium
Developer, execute any applications, forms or petitions necessary to modify, renew, or obtain
any Development Requirements for the Baseball Stadium, as may be necessary from time to
time, if written consent of the property owner is required for such application, form or petition.
The City and the County each shall act reasonably to expedite any applications for actions or
approvals requested or required of them in connection with the permitting and construction of the
Baseball Stadium and the Public Infrastructure to allow for the undelayed completion of the
Baseball Stadium and the Public Infrastructure, and each shall dedicate at least one member of its
building permit staff and make available other appropriate staff to serve as a liaison for the
Baseball Stadium Project and the Public Infrastructure to expedite the permitting process and
other City and County review and approval processes at no cost to the Stadium Developer for
such expediting and staffing. Further, the City and the County each agrees not to act
unreasonably, or fail to act, in a manner that would substantially delay or place in jeopardy, or
would reasonably be expected to jeopardize, the completion of the Baseball Stadium by the
Targeted Completion Date and the Public Infrastructure by the date set forth in the Master
Project Schedule. The Stadium Developer agrees not to act unreasonably, or fail to act, in a
manner that would substantially delay or place in jeopardy, or would reasonably be expected to
jeopardize, the completion of the Public Infrastructure by the Substantial Completion date set
forth in the Master Project Schedule
(b) The City agrees to review building permits relating to the Baseball
Stadium in accordance with the schedule set forth below, but the Package Review Times shall
not commence until the City shall have received a completed application form for the relevant
permit and all plans, reports, information, exhibits or other documents required to be submitted
with such application. Within five (5) Business Days of receiving any such permit application,
the City shall cause its building department to provide to the Stadium Developer in writing a
specific list of any documents or other requirements that are missing or otherwise required to
issue the permit.
Permit Review Packages Package Review Time
Permit Package 1 — Foundations 20 Business Days
Permit Package 2 — Superstructure, Roof 20 Business Days
Permit Package 3 — Enclosures, Interiors, 30 Business Days
Finishes
Once the City has determined that the permit application and related documents are complete,
the City shall commence review of the completed application form. In the event that the City
discovers issues during its review of the permit plans, it will immediately notify the Stadium
Developer of same in order to meet the mutual goals of the Parties.
(c) Any City or County permit fees and other City or County Development
Requirement fees (including but not limited to fees for the Stadium and Parking MUSP, DERM,
17
WASD, platting and building permit applications) applicable to the Baseball Stadium Project
shall be customary and consistent with amounts charged for City -owned or County -owned,
respectively, projects and shall be waived by the City or County, respectively, to the extent
authorized as of the Effective Date of the BSA by County or City code provision or
administrative regulation. To the extent such waivable fees are advanced by the Team Affiliate,
the City or the County, as the case may be, shall promptly reimburse the Team Affiliate for such
fees. City impact fees, if any, shall be imposed on the Baseball Stadium only to the extent the
impacts of the Baseball Stadium exceed the impacts of the former Orange Bowl on the property.
Because the IPSIG for the Baseball Stadium Project was assigned at the time that the BSA was
approved by the Board, the Inspector General contract fee shall not apply to this Agreement or
the other Stadium Agreements. Any fees payable with respect to the IPSIG assigned to the
Baseball Stadium Project or the Inspector General shall be paid by the County. The Team
Affiliates and the County shall not be responsible for any major use special permit, application or
other costs relating to the Other Development or Parking Facilities.
(d) The City has confirmed via separate letter from its Zoning Administrator
and Director of Planning, respectively, that the proposed uses of the Entire Site for the Baseball
Stadium and the Parking Facilities are consistent with the current zoning and the City's
Comprehensive Land Use Plan for the Entire Site.
(e) The Parties agree that the latest version of Building Code set forth in
Chapter 8 of the Code of Miami -Dade County, as of the date of the permit application(s), shall
govern the permitting of the Construction Documents.
(f) The Government Parties shall use reasonable best efforts to cause Florida
Power and Light and any other private utility companies whose work will affect the Baseball
Stadium Work or the Public Infrastructure Work to expedite their work so as not to cause any
delay in the orderly progress of the Baseball Stadium Work or the Public Infrastructure Work in
accordance with the Master Project Schedule. The Parties acknowledge that, notwithstanding the
Government Parties exercise of reasonable best efforts, delays in the Work performed by private
utility companies shall be considered events of Force Majeure. Under no circumstances shall the
requirement to use reasonable best efforts require the Government Parties to expend funds for
such purpose.
3.7 Access to Site.
(a) The City shall provide authorization for the Stadium Developer and its
agents, consultants and contractors (including the Construction Manager and the Design
Professionals) to, immediately upon execution of this Agreement, enter upon the Entire Site in
order for them to be able to perform various tests and studies of the Entire Site, and other
preconstruction work as contemplated by this Agreement. Prior to entering the Baseball Stadium
Site, the Stadium Developer shall provide evidence of insurance as set forth in Article VIII or as
otherwise reasonably acceptable to the Government Parties and hereby agrees to indemnify the
Government Parties for personal injury or property damage arising out of its activities on the
Baseball Stadium Site under this Section in accordance with Article XII. The right of access
herein granted with respect to the Development Site shall be exercised in such a manner as not to
cause any unreasonable damage or destruction to, or unreasonable interruption or interference
18
with, the rights of the City or others to enter upon or use the Development Site. The Stadium
Developer agrees to immediately pay or cause to be removed any liens or encumbrances filed
against the Development Site as a result of any actions taken by it or on its behalf in connection
with the work contemplated by this paragraph, and to repair such damages to the Development
Site caused by said work as the City shall reasonably require, giving due weight to the expected
demolition of the improvements on the Entire Site.
(b) Upon its taking title to the Baseball Stadium Site, the County shall make
the Baseball Stadium Site fully available to the Stadium Developer for the construction of the
Baseball Stadium and for the other purposes contemplated by the Stadium Agreements. Upon
the date set forth in the Mastcr Project Schedule as the commencement of construction date, the
Stadium Developer shall be fully responsible for securing the Baseball Stadium Site and for
providing the insurance required by this Agreement.
(c) The Government Representatives shall be given access to the Baseball
Stadium Site to conduct the inspections provided for in Section 5.5.
3.8 Public Infrastructure.
(a) The Public Infrastructure Work shall be completed in accordance with the
Master Project Schedule. Subject to the terms and conditions of this Section 3.8 and the other
provisions of this Agreement, Stadium Developer shall be responsible for the management of the
design and construction of the Public Infrastructure Work. The Stadium Developer shall
contribute One Million Dollars ($1,000,000) to Public Infrastructure Costs. Any payments
Stadium Developer makes toward the Public Infrastructure Design Costs or payment of fees,
interest, premiums and other costs for the CM Services Security for the Public Infrastructure will
be credited against such contribution.. If the Public Infrastructure Design Costs and the fees,
interest, premiums and other costs paid for the CM Services Security for the Public Infrastructure
exceed One Million Dollars ($1,000,000), then such excess amounts shall be credited against the
Stadium Operator's payment obligations under Section 9.3(b) of the Operating Agreement.
Except as otherwise provided in this Agreement, the County and the City shall each fund and
pay, as and when due, one-half of all remaining Public Infrastructure Costs (except for those
noted on Exhibit G as being funded 100% by the City or by the requesting party as an addition to
or enhancement of the Public Infrastructure Work). Stadium Developer shall have no
responsibility for Unforeseen Site Conditions relating to the Public Infrastructure Work, as the
County and the City shall be responsible for any Unforeseen Site Conditions affecting the Public
Infrastructure Work. The Government Parties shall obtain, or cause to be obtained, such
property rights as are necessary to permit the construction and operation of the Public
Infrastructure. Exhibit G, including any items listed thereon as allowances or alternates, contains
a description of all material elements that comprise the Public Infrastructure. None of the Public
Infrastructure elements listed in Exhibit G may be amended or deleted without the prior written
approval of all Parties and any value engineering and other cost saving alternatives
recommended pursuant to any of the subsections below shall be subject to the requirement that
none of the work listed in Exhibit G be amended or deleted.
(b) The Public Infrastructure Budget contains contingency amounts for the
Public Infrastructure Work. Stadium Developer may recommend to the Government
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Representatives uses of the contingency set forth in the Public Infrastructure Budget, but any use
of contingency amounts by Stadium Developer from the Public Infrastructure Budget shall
require the prior approval of the Government Representatives. Public Infrastructure Design
Costs shall be paid directly by the Stadium Developer and credited against the Stadium
Developer funding requirement set forth in Section 6.4. The Stadium Developer shall update the
Public Infrastructure Budget monthly, and shall provide copies thereof to the Government
Representatives. The Stadium Developer shall provide the Government Representatives with
monthly progress reports, in a form reasonably acceptable to the Government Representatives,
relating to the Public Infrastructure Costs, including all expenditures by the Stadium Developer
during the preceding month. The Public Infrastructure Budget updates and the monthly progress
reports shall be in substantially the same form as the monthly updates and progress reports
relating to the Baseball Stadium Project.
(c) Each Government Party shall, upon request of any Party, provide evidence
of the funding for its share of the Public Infrastructure Costs. The County and the City shall
each fund and pay one-half of the cost any Public Infrastructure Cost Overrun described in
Section 6.5.2. and the cost of any Change Order relating to the Public Infrastructure Work;
provided, however, that (i) if any Party requests any additions to, or enhancements of, the
elements of the Public Infrastructure described in Exhibit G hereof, then the cost for such
enhancement or addition shall be paid solely by the Party requesting the addition or
enhancement, including any Stadium Cost Overruns, Governmentally Caused Overruns and
Public Infrastructure Cost Overruns associated with such addition or enhancement; and (ii) for
those items noted on Exhibit G as being funded 100% by the City, the cost for such items shall
be paid solely by the City, including any Stadium Cost Overruns, Governmentally Caused
Overruns, and Public Infrastructure Cost Overruns associated with such addition or
enhancement, except to the extent such overrun was caused by the Stadium Developer's
negligent performance of its duties under this Agreement or by Public Infrastructure Delay and
Scheduling Overruns. Notwithstanding the foregoing, the cost of any work that is required in
order for the Public Infrastructure to comply with Applicable Laws shall be shared equally
between the County and the City.
(d) The Stadium Developer shall hire and pay the Architect, civil engineer and
other design professionals required to design the Public Infrastructure Work. The Stadium
Developer shall cause each design professional for the Public Infrastructure Work to carry
professional liability and other insurance coverages as are customary, and in amounts customary,
for work of this nature. The Architect Contract for the Public Infrastructure Work shall (i)
contain substantially the same terms and conditions as contained in the Architect Contract
referenced in Section 4.2 hereof, (ii) require the Architect to separately allocate and account for
its fees and expenses between Stadium Project Costs and Public Infrastructure Costs; (iii) grant
Stadium Developer, the County and the City the right to audit the books and records of the
Architect to confirm whether Stadium Project Costs and Public Infrastructure Costs have been
properly allocated and accounted for; (iv) require that all applications for payment and invoices
clearly delineate between payment requested for services provided in connection with the
Baseball Stadium and payment requested for services provided in connection with the Public
Infrastructure; (v) require that the Design Documents produced by the Architect clearly
distinguish between Baseball Stadium Work and Public Infrastructure Work so that bid packages
can separately identify, and distinguish between, Baseball Stadium Work and Public
20
Infrastructure Work; and (vi) require that the Architect coordinate its services for the Public
Infrastructure with its services for the Baseball Stadium and that the Architect waive any claim it
may have against Developer, the County or the City to the extent that such claim is based on a
delay, default or other failure on the part of the Architect to coordinate its services for the Public
Infrastructure Work with its services for the Baseball Stadium Work. The Government
Representatives shall have the right to review and approve the Design Documents relating to the
Public Infrastructure Work in the manner and using the same procedures and time periods for
review as are set forth in Section 4.3 for the Stadium Design Documents, provided, however, that
the Government Representative's approval of the design documents for the Public Infrastructure
Work shall not be subject to the same standards of approval as apply to the Baseball Stadium
Project, and the Government Representative may withhold approval of the design documents for
the Public Infrastructure Work in its reasonable discretion.
(e) The Stadium Developer shall hire the Construction Manager for the Public
Infrastructure Work subject to the Board's approval by two-thirds of the Board membership and
the Commission's approval by four-fifths of the Commission membership of a bid -waiver under
Section 255.20, Florida Statutes. If such bid waiver is not approved within forty-five (45) days
after the date of approval of this Agreement by the Board and the Commission, the County and
the City agree to use reasonable and diligent efforts to hire a contractor or construction manager
for the performance and management of the Public Infrastructure Work as quickly as reasonably
possible, in accordance with Applicable Law. Within forty-five (45) days after the date of
approval of this Agreement, the County and the City, with the Stadium Developer's assistance
shall negotiate the fee, general conditions amount, insurance costs, and the pre -construction
services amount that will be charged by the Construction Manager for the Public Infrastructure
Work. If, for any reason, the County and City cannot obtain from Hunt/Moss, a Joint Venture,
satisfactory terms and conditions for the Public Infrastructure Work, then the County and City
may negotiate with other construction management firms for the role of Construction Manager
for the Public Infrastructure Work. As part of its obligations under the Construction
Management Contract, the Construction Manager shall prepare a schedule of values for the
Public Infrastructure Work that allocates the cost of the Public Infrastructure Work among the
fee, the general conditions amount, the insurance costs, the pre -construction services and the
various categories of trade work that comprise the Public Infrastructure Work. In addition, the
Construction Management Contract for the Public Infrastructure Work shall (i) contain
substantially the same terms and conditions as contained in the Construction Management
Contract referenced is Section 5.2 hereof, (ii) require the Construction Manager to separately
allocate and account for Stadium Project Costs and Public Infrastructure Costs; (iii) grant
Stadium Developer, the County and the City the right to audit the books and records of the
Construction Manager to confirm whether Stadium Project Costs and Public Infrastructure Costs
have been properly allocated and accounted for; (iv) require that all applications for payment and
invoices clearly delineate between payment requested for Baseball Stadium Work and payment
requested for Public Infrastructure Work; (v) require that bid packages be prepared in a manner
that separately identifies, and distinguishes between, Baseball Stadium Work and Public
Infrastructure Work; (vi) require the Construction Manager to use its best efforts to propose
value engineering and other cost saving alternatives to cause the Public Infrastructure GMP (or
then estimated construction cost, as applicable) to be within the construction cost limitation for
the Public Infrastructure Work set forth in the Public Infrastructure Budget; (vii) require that the
Construction Manager waive any claim it may have against Developer, the County or the City to
21
the extent that such claim is based on a delay, default or other failure on the part of the
Construction Manager to properly schedule and coordinate the Public Infrastructure Work with
the Baseball Stadium Work; (viii) require that the Construction Manager be responsible for
delays, and cost overruns associated with such delays, that are caused by delays in the
performance of the Public Infrastructure Work by the Construction Manager or its
subcontractors (including additional costs associated with impacts to the Stadium Work) or
caused by Construction Manager's failure to properly coordinate the Baseball Stadium Work and
the Public Infrastructure Work; (ix) require that the Construction Manager provide a guaranteed
maximum price for the Public Infrastructure Work ("Public Infrastructure GMP") that is
consistent with the construction cost limitation for the Public Infrastructure Work set forth in the
Public Infrastructure Budget and otherwise acceptable to the County and the City; and (x)
provide that the Public Infrastructure GMP shall separately identify a construction contingency
that shall be dedicated solely to the Public Infrastructure Work. At the same time that the
Construction Manager is required to present its proposal for an Public Infrastructure GMP, the
Stadium Developer shall also solicit a proposal from the Construction Manager for the
Construction Manager 's fees and general conditions sum based on the Construction Manager
managing the Public Infrastructure Work on a "cost plus fee" basis without a guaranteed
maximum price. Prior to establishment of the Public Infrastructure GMP, if any of the estimates
of the Public Infrastructure Costs based on the then current Design Documents indicates that the
Public Infrastructure Costs will exceed the construction cost limitation set forth in the Public
Infrastructure Budget, then the Construction Manager shall be required to propose value
engineering recommendations so as to cause the estimates to be within the Public Infrastructure
Budget. Any such value engineering recommendations shall be subject to the approval of the
County and the City, and the Government Parties agree to reasonably cooperate with any value
engineering recommendations made to cause the Public Infrastructure GMP to be within the
construction cost limitation for the Public Infrastructure Work set forth in the Public
Infrastructure Budget. Any cost savings, including the construction contingencies, relating to the
Public Infrastructure Work shall be shared equally by the County and the City, unless otherwise
agreed to by the Government Parties.
(f) If Hunt/Moss, a Joint Venture, is ultimately selected as the Construction
Manager for the Public Infrastructure Work, before the Construction Manager commences its
services related to the Public Infrastructure, the Construction Manager shall execute, deliver to
the County and City (with copies to the Stadium Developer), and record in the public records of
the County, the following payment and performance bonds: (i) prior to establishment of the
GMP for the Public Infrastructure Work pursuant to the Construction Management Contract, a
payment and performance bond in an amount equal to the value of all preconstruction services to
be provided by the Construction Manager under the Construction Management Contract, (ii) to
the extent that, prior to establishment of the GMP for the Public Infrastructure Work pursuant to
the Construction Management Contract, the Construction Manager enters into any subcontracts
or purchase orders, a payment and performance bond from the applicable subcontractor or
supplier in an amount equal to the total subcontract or purchase order amount, and (iii) upon the
establishment of the GMP pursuant to the Construction Management Contract, a payment and
performance bond in an amount equal to the total cost of construction of the Public
Infrastructure. In the alternative, if a general contractor other than Hunt/Moss, a Joint Venture,
is selected as the general contractor for the Public Infrastructure Work, before such general
contractor commences its services related to the Public Infrastructure, the general contractor
22
shall execute, deliver to the County and City (with copies to the Stadium Developer), and record
in the public records of the County, a payment and performance bond in an amount equal to the
total cost of construction of the Public Infrastructure. Each payment and performance bond
required above shall be in compliance with the terms of Section 255.05, Florida Statutes,
specifically in compliance with the requirements of Section 255.05(1)(a) and (c), 255.05(3), and
255.05(6), shall name the County, the City and the Stadium Developer beneficiaries thereof, as
joint obligees. Each payment made to the Construction Manager for its performance of
construction management services for the Public Infrastructure Work (i.e., management fee,
profit, office overhead, general conditions performed or provided by the Construction Manager
as part of its construction management services and cost of work that is self -performed by the
Construction Manager), shall be made by a dual party check (or other dual party payment
method) in the name of the Stadium Developer and the Construction Manager.
(g) If Hunt/Moss, a Joint Venture, is ultimately selected as the Construction
Manager for the Public Infrastructure Work, then before the Construction Manager commences
its services related to the Public Infrastructure, (i) the Stadium Developer shall execute, deliver
to the County and the City, and record in the public records of the County, a payment and
performance bond for the total cost of construction of the Public Infrastructure in compliance
with the terms of Section 255.05, Florida Statutes, naming the County, the City and the Team
Affiliate beneficiaries thereof, as obligees; or (ii) in lieu of such bond, the Stadium Developer
shall file with the County an alternative form of security in the form of cash, irrevocable letter of
credit, or other security of the type listed in Section 255.05(7) or Part II of chapter 625, Florida
Statutes (the "CM Services Security'), in an amount equal to the total cost of the construction
management services to be performed by the Construction Manager for the Public Infrastructure
Work (i.e., management fee, profit, office overhead, general conditions, and cost of work that is
self -performed by the Construction Manager if the payment and performance of such self -
performed work is not covered by the payment and performance bond provided by the
Construction Manager to the County and the City as provided in Section 3.8(f)), as depicted in
the initial Schedule of Values divided by the total number of months that comprise the
performance period of the construction management services, all in accordance with the
provisions of Section 255.05(7), Florida Statutes. The amount of the CM Services Security for
the Public Infrastructure Work shall be adjusted in accordance with such formula as the total cost
of the construction management services and performance period are adjusted by Change Order.
By way of example, if the aggregate cost of the construction management services equals
$3,500,000 and such services are required for a period of 35 months, the amount of the required
CM Services Security would be equal to $100,000. The Stadium Developer shall be permitted to
use the CM Services Security for the Public Infrastructure Work to make its final payment to the
Construction Manager for the Public Infrastructure Work. In the event the CM Services Security
for the Public Infrastructure Work is used to cover the cost associated with the construction
management services as contemplated herein, the Stadium Developer shall replenish the CM
Services Security for the Public Infrastructure Work in an amount equal to such draws such that
the CM Services Security for the Public Infrastructure Work at all times is equal to the amount
required by this section. Fees, interest, premiums and other costs paid by the Stadium Developer
for CM Services Security for the Public Infrastructure Work shall be considered Public
Infrastructure Costs and shall be credited against the Stadium Developer's contribution
referenced in Section 3.8(a).
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(h) The Construction Manager shall prepare bid packages for the Public
Infrastructure Work and competitively bid each bid package in accordance with applicable state
and local law. Bidding for any roadwork shall be subject to the lowest responsive, responsible
bidder rules, which permit the Construction Manager to pre -qualify bidders. The Construction
Manager shall be permitted to negotiate price with the lowest responsive, responsible bidder for
roadwork, and with any bidder it deems highest ranked for other portions of the Public
Infrastructure Work. The County and City Representatives shall be permitted to review any of
the Construction Manager's bid packages and bid award process for compliance with state and
local law. The County and City Representatives (or their designees) shall attend the weekly
progress meetings relating to the Public Infrastructure Work and Public Infrastructure Costs and
shall be available to review any Change Orders relating to the Public Infrastructure Work. The
approval of the County Representative and the City Representative shall be required for all
Public Infrastructure Work Change Orders. For any Public Infrastructure Change Orders, the
Stadium Developer shall be permitted to perform value engineering to minimize or eliminate any
impact to the Public Infrastructure Budget, so long as such value engineering does not cause the
elimination of a material or necessary element of the Public Infrastructure Work. The County
and City Representatives shall review any such Public Infrastructure Work Change Order within
ten (10) Business Days. The County and City Representatives' approval of any change orders
requiring approval hereunder shall not be unreasonably withheld, delayed or conditioned.
(i) If a Public Infrastructure Cost is incurred as a result of the error, omission,
default or other failure to perform by the Architect or the Construction Manager pursuant to their
respective contracts, the Government Parties, as a third party beneficiaries of the Architect
Contract and the Construction Management Contract, shall have the right to pursue recovery
against the Architect or the Construction Manager, as the case may be. The Stadium Developer
shall cooperate with the Government Parties in connection with its pursuit of any such claim.
0) The Stadium Developer shall cause the Public Infrastructure Work to be
included within the insurance policies to be purchased and maintained under Sections 8.1 and 8.2
hereof. Such polices shall include, as appropriate, the Architect, Construction Manager and
subcontractors, and shall contain the same named insureds, additional insureds, coverages and
minimum limits as are set forth in Sections 8.1 and 8.2.
(k) With respect to any utility work that is part of the Public Infrastructure
Work, the utilities will be brought to the property line of the Baseball Stadium Site, and utility
work within the property line of the Baseball Stadium Site shall be part of the Baseball Stadium
Work. The Public Infrastructure shall not include any Work to be completed within the Baseball
Stadium Site. The Public Infrastructure shall not include any Work to be completed within the
City Parking Site (as defined in the City Parking Agreement), except as needed for the Baseball
Stadium Project.
(1) The Parties acknowledge that certain costs may not be allocable
specifically to the Public Infrastructure Work or the Baseball Stadium Work and hereby agree
that such costs shall be allocated between the Baseball Stadium Work and the Public
Infrastructure Work based on the respective percentages that the respective budgets for each
scope of Work bears to the total costs for all Work reflected in the Stadium Project Budget and
the Public Infrastructure Budget (the "Cost Allocation Percentage"). The Cost Allocation
VJA
Percentage shall be adjusted based upon the respective costs reflected in the first Schedule of
Values submitted and accepted after establishment of the GMP for the Public Infrastructure
Work or the Baseball Stadium Work and shall be subject to final adjustment based upon final
reconciliation of the Public Infrastructure Costs and the Stadium Project Costs relating to the
Public Infrastructure Work and the Baseball Stadium Work. The Cost Allocation Percentage
shall be applied to the costs of the "developer controlled" insurance program and all other
unallocated costs that the Parties agree to include. If a Party wishes to include an unallocated
cost as being subject to the Cost Allocation Percentage, then it shall give the other Parties
advance notice thereof and the Parties shall meet in good faith to determine whether the cost is
properly characterized as an unallocated cost. If the Parties are unable to agree whether a cost,
expense or claim by a third party providing services to the Baseball Stadium or the Public
Infrastructure is chargeable to, or otherwise in part allocable to, the Baseball Stadium or the
Public Infrastructure, then such dispute between the Parties shall be resolved by Expedited ADR
pursuant to Section 14.2 hereof.
(m) Notwithstanding anything in this Agreement to the contrary, if Hunt/Moss, a
Joint Venture, is not engaged as the Construction Manager for the Public Infrastructure Work,
then (i) the Stadium Developer shall have no obligations or responsibilities under this Agreement
to the manage the design or construction of the Public Infrastructure Work, (ii) all references in
this Agreement to such obligations or responsibilities shall be deemed to be obligations and
responsibilities of the Government Parties for the design and the management of the construction
of the Public Infrastructure Work, (iii) any Public Infrastructure Delay and Scheduling Overrun
shall be considered a Governmentally Caused Overrun except for those cost overruns arising
from delays resulting from the performance by the Architect for the Baseball Stadium of its
obligations under the Architect Contract relating to the Baseball Stadium Work, (iv) the Stadium
Developer shall not have to make the $1,000,000 contribution to Public Infrastructure Costs
referenced in Sections 3.8(a) and 6.4(a)(ii), and such contribution shall instead fund the Stadium
Project Costs, (v) the respective contributions of the Government Parties in Sections 6.2 and 6.3
shall each be decreased by $500,000, and (vi) the Parties shall amend this Agreement to require
the Government Parties to be responsible for the design and the management of the construction
of the Public Infrastructure Work, subject to terms and conditions approved by the Stadium
Developer, the Board and the Commission, including, but not limited to, necessary amendments
to the Preliminary Milestones Schedule; provided, however, if such amendment is not, or will
not be, effective on or before June 1, 2009, the Board, at a publicly noticed meeting, shall
consider terminating this Agreement in accordance with Section 11.1.1.
3.9 Other Development.
(a) The City, or an agency or instrumentality of the City, either by itself or
with third party joint venture partners, intends to develop commercial, retail and other
development on the Development Site, which site shall include, at a minimum, the Entire Site,
but excluding the Baseball Stadium Site ("Other Development"). The City shall keep the County
and the Team Affiliates informed of any plans it develops or modifies for Other Development.
The City may, subject to the provisions of this Section 3.9, (x) pursue the Other Development on
such terms and conditions as it may determine, (y) transfer the right to pursue Other
Development to a third party for such consideration as it determines, or (z) joint venture with the
Team, or cause a third party to joint venture with the Team, to pursue Other Development.
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(b) The City acknowledges that the success of the Entire Site will depend on,
among other things, the proper coordination of all of the proposed construction and uses on the
Entire Site. The City further agrees, and shall require and cause all users of the Other
Development, to comply with the following restrictions:
(i) Other Development shall be architecturally harmonious with the
Baseball Stadium and the fagade features of the Other Development shall have no highly
reflective materials facing the Baseball Stadium.
(ii) During the construction period for the Baseball Stadium, the Public
Infrastructure and the Parking Facilities, the Baseball Stadium, Parking Facilities and Public
Infrastructure contractors shall have job site priority within the limits of the construction
easements required by Section 3.5. The City shall require that any work to be performed in
respect of the Other Development be done without causing a delay in the completion of the
Baseball Stadium and the Public Infrastructure by the Substantial Completion Dates specified in
the Master Project Schedule. In addition, the City shall not, following the Substantial
Completion date, allow any substantial or noisy construction activity in respect of the Other
Development that materially interferes with the use of the Baseball Stadium during the period
from two (2) hours before and one (1) hour after MLB Home Games or MLB Jewel Events, or
other Stadium Events expected to have attendance of at least 5,000 people.
(iii) The following uses shall not be permitted within the Other
Development: (A) ticket brokerage businesses (other than brokerage services provided by a
Team Affiliate for Major League Baseball games and by the Soccer Team for Major League
Soccer games), (B) 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
Development Site, except for business located in any hotel developed within the Development
Site, (C) QSRs, (D) portable or temporary food stations, 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 MLB
Jewel Events, or other Stadium Events expected to have attendance of at least 5,000 people, (E)
the sale of beer in an outdoor bar (beer garden) within one hour before MLB Home Games or
MLB, Jewel Events, or other Stadium Events expected to have attendance of at least 5,000
people, except in any bar located in any hotel developed within the Development Site, and (F)
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 Other Development that in any
material respect interferes with the operation of the Baseball Stadium or the Parking Facilities for
MLB Home Games or MLB Jewel Events, or other Stadium Events expected to have attendance
of at least 5,000 people. To the extent that the Other Development may result in the overall
development within the Entire Site being considered a development of regional impact by the
State, when aggregated with the Baseball Stadium and/or Parking Facilities, the City shall be
responsible for addressing issues or processing the DRI -related applications and any mitigation
or other obligations associated therewith.
(iv) The Team or any Team Affiliate and the County shall have the
right to review (but not approve) the plans and specifications as well as leases in respect of any
Other Development for a reasonable period prior to the construction of such Other Development
or prior to the execution of such leases.
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The City and the Stadium Developer agree that the foregoing restrictions shall run with the
Development Site land through the term of the Operating Agreement, or through construction in
the case of the first two sentences of Section 3.9(b)(ii). The City, the County and the Stadium
Developer (if appropriate) shall record an appropriate legal instrument in the Public Records of
Miami -Dade County evidencing the continuing applicability of these restrictions.
3.10 Conveyance of Lots 3 & 4. Contemporaneously with the conveyance of the
Baseball Stadium Site, the County shall convey to the City, and the City shall accept from the
County, title to Lots 3 and 4 by County Deed in substantially the form provided in Section
125.411, Florida Statutes (2008), which are legally described as follows: LOTS 3 & 4 BLOCK
34, LAWRENCE ESTATE LAND CO'S SUBDIVISION according to the Plat thereof recorded
in Plat Book 2 at Page 46 of the Public Records of Miami -Dade County, Florida (the "County
Lots"), free and clear of all Liens of record, except for any exceptions that are accepted by the
City (the "County Lots Permitted Exceptions"). Within ten (10) days following the effective
date of this Agreement, the County shall deliver to the City, at the County's cost, a title insurance
commitment committing to insure the City's acquisition of the County Lots, having an effective
date no earlier than January 15, 2009. Within thirty (30) days following its receipt of the title
commitment, the City shall notify the County of any condition which would render the title for
the County Lots unmarketable or to have diminished marketability or impair the use of the
County Lots for the development of the Parking Facilities ("County Lots Title Defects"), The
County shall use reasonable commercial efforts to cure any County Lots Title Defects so noticed
by the City within 30 days of its receipt of the title commitment (the "County Cure Period"),
provided that (i) the County shall not be required to institute any litigation or eminent domain
proceedings, and (ii) the County shall not be required to expend funds for such purpose, other
than the fees of its legal counsel. In the event the County fails to cure such title defects within
the such County Cure Period, the City may, within 5 days thereafter, elect to terminate this
Agreement by written notice to the other Parties as provided in Section 11.1.1, or accept such
title that the County may be able to convey; provided that in no event shall the City terminate
this Agreement for the County's failure to cure a County Lots Title Defect subsequent to the
deadline for termination for convenience under Section 11.1.1. If this Agreement is not
terminated by the City within the allocated time period, the City shall be deemed to have
accepted the County Lots in the condition existing as of the conveyance date and to have
acknowledged that, the County does not make and specifically negates and disclaims any
representations and warranties as of that date regarding the County Lots including specifically,
but without limitation, environmental, soil and subsoil conditions and compliance with laws,
rules and regulations. Furthermore, the City agrees not to initiate any claims or suits against the
County for any damages it suffers from any condition, including, without limitation, any
environmental condition on the County Lots existing prior to the date upon which the City
accepts title to the County Lots, but shall have the right to join the County in the case of any
third party claims or suits filed against the City, arising from such environmental condition.
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ARTICLE IV
BASEBALL STADIUM AND PUBLIC INFRASTRUCTURE DESIGN
4.1 Stadium Design; Project Program Statement. The Stadium Developer shall
manage and control the design of the Baseball Stadium, including the hiring of the Design
Professionals and the development of all of the Design Documents. The Stadium Developer
shall direct the Design Professionals to prepare Design Documents that are consistent in all
material respects with the Project Program Statement, the design selected by the Design Team
under the BSA and all Applicable Laws. The Project Program Statement is attached hereto as
Exhibit D. The Project Program Statement shall be deemed amended to conform to the Design
Documents approved in accordance with Section 4.3. The Stadium Developer may otherwise
amend the Project Program Statement from time to time; provided, however, that the amendment
shall not be effective without the prior written consent of the City and the County
Representatives if the effect of the amendment is to: (a) cause the Targeted Completion Date to
be missed; (b) cause the projected total Stadium Project Costs to exceed or further exceed the
Stadium Project Budget attached hereto as Exhibit H (as the same may be amended from time to
time to reflect approved increases) unless the Stadium Developer has made arrangements
reasonably satisfactory to the County and the City Representatives to fund the excess cost; (c)
pose a material risk to public safety; (d) eliminate a materially important programmatic element
from the Project Program Statement or materially alter the design intent of the exterior of the
Baseball Stadium; (e) cause the projected total Public Infrastructure Costs to exceed or further
exceed the Public Infrastructure Budget (as the same may be amended from time to time by the
City and the County, as the case may be, to reflect approved increases), including any increased
costs caused by delays in completing the Public Infrastructure beyond the Substantial
Completion Date set forth in the Master Project Schedule; (f) result in a Governmentally Caused
Overrun unless the Stadium Developer and the Team waive, in writing, any claims it may have
against the County and the City for Governmentally Caused Overruns resulting from the change;
or (g) likely to increase the cost of the Parking Facilities or delay substantial completion of the
Parking Facilities beyond the date anticipated for such substantial completion as set forth in the
Master Project Schedule. Each time the Project Program Statement is amended and the
amendment is of the kind that does not require Government Representative approval, no later
than ten (10) Business Days from the date of the amendment, the Stadium Developer shall
provide the Government Representatives an updated Project Program Statement, identifying the
amendment(s) and the reason(s) for the amendment(s). Each time the Stadium Developer
proposes to amend the Project Program Statement and the amendment is of the kind that requires
County and City approval under one of the above listed reasons, the Stadium Developer shall
provide the Government Representatives the proposed amendment to the Project Program
Statement detailing the reasons for the amendment and its effect on the Baseball Stadium Project
and the Public Infrastructure Work. In any instance in which County and City approval of an
amendment to the Project Program Statement is required, the County and City shall provide their
respective response within ten (10) Business Days following receipt of the proposed amendment
and their respective approval shall not be unreasonably withheld or delayed. Failure by the
County and City to respond within such ten (10) Business Days shall be deemed an approval.
Any disputes under this Section 4.1 shall be resolved by Expedited ADR under Section 14.2. In
the event the County or the City does not approve the amendment, the disapproving party shall
provide to the Stadium Developer within said ten (10) Business Day period, detailed comments
W.
outlining the reason why such party does not approve the proposed amendment. In the event the
proposed amendment is not approved or deemed approved by the County or the City, the
Stadium Developer shall either continue the process until such time as the County and the City
have approved the amendment or submit the dispute to Expedited ADR pursuant to Section 14.2.
Stadium Developer agrees that none of the Design Documents will modify a material element of
the furnishings, fixtures and equipment planned for the Baseball Stadium (as reflected in the
Project Program Statement) without the prior consent of the Government Representatives.
4.2 Design Professionals. The Stadium Developer has retained the Architect for
architectural and design services required in connection with the design and construction of the
Baseball Stadium. All architectural and engineering fees and sums paid to the Architect and
other Design Professionals shall be paid directly by the Stadium Developer and not from the
County Account or the City Account, with such fees and sums paid to be credited against the
Stadium Developer funding requirement set forth in Section 6.4. In no event shall such fees and
sums incurred prior to March 3, 2008 be credited against the Stadium Developer funding
requirement. In no event shall the County or the City be obligated in any way to pay or
reimburse the Team and/or the Stadium Developer for any Design Professional fees, except if the
County or the City owes the Team or the Stadium Developer damages for breach of this
Agreement or another Stadium Agreement by the County or City, as applicable.
Notwithstanding and prevailing over anything herein and to the contrary, any damages for
Design Professional fees and costs shall be limited to fees and costs paid under the Architect
Contract for fees or sums incurred on or after March 3, 2008. The Stadium Developer shall enter
into an architectural services agreement with the Architect (the "Architect Contract"), and may
enter into other architectural services agreements with other Design Professionals, for the
architectural and design services required in connection with the design and construction of the
Baseball Stadium and, subject to terms and conditions which must be expressly approved by the
County and the City, the design and construction of the Public Infrastructure. The architectural
services agreement(s) shall be consistent with the terms of this Agreement and shall at all times
contain the requirements set forth below. The Stadium Developer shall submit to the County and
the City, for their review and approval, the architectural services agreement(s) at least ten (10)
days prior to its execution. With respect to the provisions of the architectural services
agreement(s) relating solely to the design and construction of the Baseball Stadium, the County's
and City's approval shall be limited to the reasonable determination that the architectural
services agreement(s) complies with the express requirements set forth in this Agreement, and
such approval (or responsive comments) shall be provided within seven (7) days. The
Government Parties' approval of the Architect Contract shall not be deemed a waiver of any
rights of the Government Parties contained in this Agreement. The Architect Contract and such
other design -related contracts, as applicable, include and shall include (a) a provision requiring a
5% CBE goal for the Baseball Stadium Project and Public Infrastructure Work, which goal was
established following the review and recommendation of the County's Small Business
Department, including the monitoring procedures set forth in Section 5.14 hereof, and a
provision requiring the Architect to make reasonable good faith efforts to comply with the terms
of the CBE-A/E Program; understanding, however, that the Government Parties will not be
required to expend any additional design fees above the Public Infrastructure Design Costs
(which shall be paid by the Stadium Developer) in order to satisfy the requirements of the CBE-
A/E Program; (b) provisions requiring the Architect and any other Design Professionals with
which the Stadium Developer has any contracts to comply with other Applicable Laws; (c)
OR
provisions that such contracts are governed by Florida law and venue shall lie exclusively in
Miami -Dade County, Florida; and (d) provisions under which the Architect Contract and any
other contracts between the Stadium Developer and any other Design Professionals may be
assigned to the County upon a default thereunder by the Stadium Developer. The Stadium
Developer shall not amend any of the above -referenced provisions of the Architect Contract
relating to the Baseball Stadium, or any portion of the Architect Contract or such other Design
Professional contract that affects the Public Infrastructure Work, without the consent of the
Government Representatives, which consent shall not be unreasonably conditioned, withheld or
delayed. In any instance in which Government Representative approval of such amendment is
not required, the Stadium Developer shall provide a copy of the amendment to the Government
Representatives within five (5) days after the date it is executed. In any instance in which
Government Representative approval of such amendment is required, the Stadium Developer
shall provide the proposed amendment to the Government Representatives, and the Government
Representatives shall provide their respective responses within ten (10) Business Days following
receipt of the proposed amendment. Failure by the Government Representatives to respond
within such ten (10) Business Days shall be deemed an approval. In the event a Government
Representative does not approve the amendment, such Government Representative shall provide
to the Stadium Developer within said ten (10) Business Day period, detailed comments outlining
the reason why such Government Representative does not approve the proposed amendment. In
the event the proposed amendment is not approved or deemed approved by the Government
Representatives, the Stadium Developer shall either continue the process until such time as the
Government Representatives have approved the amendment or submit the dispute to Expedited
ADR pursuant to Section 14.2. Such Expedited ADR may not expand or otherwise modify the
express delegations of authority granted to the Government Representatives under this
Agreement. The Stadium Developer agrees to pay all undisputed amounts due and owing under
the Architect Contract.
4.3 Design Documents.
(a) The County and City Representatives shall have the right to review and
approve the Schematic Design Documents, the Design Development Documents and the
Construction Documents for the Baseball Stadium for general conformance with the Project
Program Statement or the previously approved Design Documents, as applicable. To assist the
County and City in their review, the Stadium Developer shall cause the Architect to provide with
any future Design Documents a summary of any changes that it reasonably believes would
require the County's and City's approval under this Agreement. Such review and approval (i)
shall be limited to the confirmation that the applicable Design Documents are generally
consistent in all material respects with the Project Program Statement or the previously approved
Design Documents, as applicable, and (ii) shall not otherwise be unreasonably withheld,
conditioned or delayed. The Government Representatives shall have the right to review and
approve the Schematic Design Documents, the Design Development Documents and the
Construction Documents for the Public Infrastructure as specifically set forth below in this
Section 4.3. Such approvals shall not be unreasonably withheld, conditioned or delayed.
(b) With respect to the design of the Baseball Stadium, the County and City
Representatives shall have ten (10) Business Days after the receipt of the applicable Design
Documents referenced in Section 4.3(a) to confirm that such Design Documents are generally
30
consistent in all material respects with the Project Program Statement or the previously approved
Design Documents, as applicable. If each Government Representative does not so confirm that
the applicable Design Documents are generally consistent in all material respects with the
Project Program Statement or the previously approved Design Documents, as applicable, such
Government Representative shall provide to the Stadium Developer, within that ten (10)
Business Day period, detailed comments setting forth the reasons it believes that the applicable
Design Documents are not generally consistent in all material respects with the Project Program
Statement or the previously approved Design Documents, as applicable. Either Government
Representative's failure to provide such comments shall not be deemed a default by the City or
County (as applicable), but shall result in the applicable Design Documents being deemed
approved as provided below. If, within such time, either Government Representative does not
properly reject the applicable Design Documents, then such Government Representative shall be
deemed to have approved the applicable Design Documents. Similarly, if a Government
Representative rejects only certain specified elements in the applicable Design Documents, then
the elements to which it does not object shall be deemed approved. If the Stadium Developer
disagrees with any of the Government Representative's comments, then the Stadium Developer
shall meet with the Government Representative to resolve any items of dispute to their
reasonable satisfaction and each shall use good faith efforts to resolve any disagreements in an
expeditious manner so as not to delay production of the Design Documents. The Stadium
Developer shall cause the Architect to revise the applicable Design Documents (or to incorporate
such modifications in the following set of Design Documents) to address any comments raised
by the Government Representative(s) with which the Stadium Developer agrees and shall submit
revised Design Documents to both Government Representatives for their review and
confirmation as provided above. That Government Representatives shall have five (S) Business
Days from the receipt of the revised Design Documents to review and approve them. The failure
of the Government Representatives to respond within such five (S) Business Day period shall be
deemed approval.
(c) With respect to the design of the Public Infrastructure, the Government
Representatives shall have ten (10) Business Days after the receipt of the applicable Design
Documents referenced in Section 4.3(a) to approve such Design Documents. If either
Government Representatives does not approve the applicable Design Documents, then the
Government Representative shall provide to the Stadium Developer, within that ten (10)
Business Day period, detailed comments setting forth the reasons that the Government
Representative has not approved the applicable Design Documents. The Government
Representative's failure to provide such comments shall not be deemed a default by the City or
County (as applicable), but shall result in the applicable Design Documents being deemed
approved as provided below. If, within such time, either Government Representative does not
properly disapprove the applicable Design Documents, then such Government Representative
shall be deemed to have approved the applicable Design Documents. Similarly, if the
Government Representative rejects only certain specified elements in the applicable Design
Documents, then the elements to which it does not object shall be deemed approved. If the
Stadium Developer disagrees with any of the Government Representative's comments, then the
Stadium Developer shall meet with the Government Representative to resolve any items of
dispute to their reasonable satisfaction and each shall use good faith efforts to resolve any
disagreements in an expeditious manner so as not to delay production of the Design Documents
for the Public Infrastructure. The Stadium Developer shall cause the Architect to revise the
31
applicable Design Documents to address any comments raised by the Government
Representative with which the Stadium Developer agrees and shall submit revised Design
Documents to the Government Representative for its review and confirmation as provided above.
The Government Representative shall have five (5) Business Days from the receipt of the revised
Design Documents to review and approve them. The failure of the Government Representative
to respond within such five (5) Business Day period shall be deemed approval.
(d) If the Parties are unable to resolve any disagreements under this Section
4.3, then any Party may file for Expedited ADR pursuant to Section 14.2.
(e) The Stadium Developer may revise the Design Documents for the
Baseball Stadium from time to time provided that they remain consistent in all material respects
with the Project Program Statement or the previously approved Design Documents, as
applicable.
(f) The Parties understand and agree that the purposes of the design process
set forth in Section 4.3 is to cause the Architect and the Parties to deliver a first-class baseball
stadium consistent with the standard set forth in Article 11.
4.4 Use of Plans. The Architect Contract shall grant the Stadium Developer and the
County and the City (in the case of the City, such license shall only become effective in the
instance that the Baseball Stadium Site reverts to the City) and subject to the security and other
procedures set forth in Chapter 119 Florida Statutes, a perpetual license to use the Design
Documents in connection with the development, operation and modification of the Baseball
Stadium, such license being conditioned, however, on the payment of all undisputed amounts
due and owing under the Architect Contract. All construction documents, plans, specifications,
drawings, models, samples and the like submitted to the County, the City and/or their
representatives pursuant to this Agreement are for informational purposes only, except to the
extent (a) otherwise expressly provided herein, or (b) they are submitted to the County and the
City for regulatory or permitting purposes. The County, the City and their representatives shall
not use Design Documents produced or developed in connection with the design and
construction of the Baseball Stadium for any purpose other than as contemplated by this
Agreement and the other Stadium Agreements. This provision shall survive the expiration or
earlier termination of this Agreement.
4.5 LEED Certification. The County and the City have informed the Stadium
Developer that they shall achieve LEED silver status certification for the Baseball Stadium
Project. The County and City shall each pay 50% of the incremental cost to achieve such LEED
silver status certification, net of the $1,000,000 to be provided by the Stadium Developer on
behalf of Major League Baseball for such purpose (the "Incremental LEED Cost"). Incremental
LEED Costs shall not include any design or construction element which qualifies for LEED
points and which is required as a matter of Applicable Law at the time the Stadium Developer
submits to the applicable building department a completed permit application containing such
design or construction elements. In no event shall the Incremental LEED Cost payable by the
County and the City exceed $3,500,000 (not to exceed $1,750,000 from the County and not to
exceed $1,750,000 from the City) and any amount above $3,500,000 necessary to achieve LEED
silver status certification shall be the responsibility of the Stadium Developer. Any incremental
32
amounts paid by the City above the amounts required to construct the Parking Facilities in
compliance with the City Parking Agreement, expended at the request of the Stadium Developer
to achieve LEED silver status certification for the Baseball Stadium Project under this Section
4.5, shall count towards the City's LEED contribution obligation under this Section 4.5,
including the City's 50% share of amounts not to exceed $3,500,000. The County shall be
responsible for the incremental costs directly associated with compliance with the Sustainable
Building Program, excluding costs related to achievement of silver LEED status which shall be
allocated as set forth above.
ARTICLE V
CONSTRUCTION OF BASEBALL STADIUM AND PUBLIC INFRASTRUCTURE
5.1 Construction Administration. The Stadium Developer shall be responsible for
managing, directing, supervising, coordinating and controlling the planning, design and
construction of the Baseball Stadium and the Public Infrastructure in accordance with, as
applicable, the Construction Documents, the Construction Schedule, the Master Project
Schedule, the Stadium Project Budget and the Public Infrastructure Budget. Except as otherwise
specifically provided in this Agreement, the Stadium Developer shall be responsible for taking
all reasonable action for the orderly performance of all aspects of the Work required in
connection with the construction of the Baseball Stadium, including:
(a) retaining the services of the Architect, compliance with the requirements
of the Architect Contract, and coordinating the design of the Baseball Stadium and the Public
Infrastructure;
(b) retaining, as necessary, the services of specialty consultants;
(c) retaining the services of the Construction Manager pursuant to Sections
3.8 and 5.2, as the case may be, who shall cause the Baseball Stadium and the Public
Infrastructure to be constructed in accordance with the Construction Schedule and the Master
Project Schedule, the Construction Documents, and the Construction Management Contract;
(d) preparing and updating, or causing to be prepared and updated, the
Construction Schedule, the Master Project Schedule and the Draw Down Schedule in accordance
with Section 5.7, and delivering copies to the Project Coordination Team in accordance with
Section 5.7;
(e) retaining and supervising the personnel reasonably required by the
Stadium Developer in order to properly perform or cause to be performed the Work;
(f) maintaining, or causing to be maintained, complete and accurate books
and records, consistent with industry standards, regarding the design and construction of the
Baseball Stadium Project and the Public Infrastructure, including the Design Documents, shop
drawings, Change Orders, as -built drawings, applications for payment, permits, insurance
policies, bills, vouchers, receipts, lien waivers, customary periodic reports, inspector daily
reports, estimates, correspondence and bid calculation sheets;
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(g) taking all action reasonably required to comply with all Applicable Laws
and taking all reasonable action required to cause the Architect and the Construction Manager
and all other agents and contractors engaged by the Stadium Developer and Team Affiliates to
design and construct the Baseball Stadium and the Public Infrastructure in accordance with
Applicable Laws and the provisions of the Architect Contract and Construction Management
Contract;
(h) furnishing promptly to the Project Coordination Team and the
Government Representatives all documents and information required to be provided to them
pursuant to this Agreement and all other information relating to the Baseball Stadium Project and
the Public Infrastructure they may reasonably request;
(i) notifying promptly the Government Representatives of any suit,
proceeding or action that is initiated or threatened in writing against a Team Affiliate in
connection with the Baseball Stadium Project or the Public Infrastructure;
0) providing the County and City Representatives, upon Final Completion,
with an "as -built" set of the Construction Documents in a format acceptable to the County and
City revised to show the "as -built" condition of the Baseball Stadium and the Public
Infrastructure and other changes made during construction;
(k) managing punch list and warranty work after Substantial Completion;
(1) establishing and updating, as necessary and in accordance with the
requirements of this Agreement, the schedule of dates for delivery of various Design Documents
for review by the County and City Representatives;
(m) preparing or causing to be prepared minutes for all scheduled project
meetings and providing the County and City Representatives with copies of any minutes
prepared by the Stadium Developer, or by its contractors that are received by the Stadium
Developer, with respect to all project meetings for the Baseball Stadium or the Public
Infrastructure, as the case may be;
(n) causing the completion of the Baseball Stadium and the Public
Infrastructure in accordance with the Design Documents, the Construction Schedule, the Master
Project Schedule and within the Stadium Project Budget and the Public Infrastructure Budget;
(o) subject to the obligations of the Government Parties with respect to
permits under this Agreement, obtaining or causing to be obtained all permits necessary for
construction of the Baseball Stadium Project and the Public Infrastructure;
(p) providing to the County and City Representatives with copies of all
contracts and amendments thereto for informational purposes only (other than contracts and
amendments thereto which shall be subject to approval by the County and City as provided
herein and the other Stadium Agreements) relating to the Baseball Stadium Project or the Public
Infrastructure;
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(q) maintaining, or causing to be maintained, the Baseball Stadium and Public
Infrastructure construction sites in safe condition and properly secured against unpermitted
access from and after the Commencement of Construction as set forth in Section 3.7(b);
(r) providing the Government Representatives the monthly progress reports
required by this Agreement and the Construction Management Contract;
(s) supervising and coordinating, or using reasonable efforts to cause the
Construction Manager to supervise and coordinate, the construction of the Baseball Stadium and
the Public Infrastructure, including the scheduling of all construction work on the Baseball
Stadium and the Public Infrastructure, so that the Baseball Stadium and the Public Infrastructure
are constructed, equipped, furnished and completed in a good and workmanlike manner, in
accordance with the Master Project Schedule and otherwise in accordance with this Agreement;
(t) furnishing promptly to the County and the City copies of any and all
written claims received by any Team Affiliates affecting the Baseball Stadium, the Baseball
Stadium Site, the Public Infrastructure, or the Public Infrastructure Sites, as the case may be; and
(u) causing the Construction Manager to coordinate work and grant
appropriate access to the site for contractors appropriately performing work.
Neither the Stadium Developer nor any other Team Affiliate shall be paid a developer fee or
compensated for its services as the developer of the Baseball Stadium or the Public
Infrastructure, as the case may be. Notwithstanding anything to the contrary herein, the Parties
acknowledge and agree that the Stadium Developer's obligations hereunder are to manage,
administer, and implement the development, design and construction of the Baseball Stadium
Project and the Public Infrastructure on behalf of the Parties. Notwithstanding any term or
condition in this Agreement to the contrary, the intent of the parties is that the Stadium
Developer shall not perform any services (and shall not act) as a contractor within the meaning
of Chapter 489, Florida Statutes, and that all such services shall be performed by licensed
contractors (as so defined under Chapter 489, Florida Statutes).
5.2 Construction Manager.
(a) The Stadium Developer has competitively selected Hunt/Moss, a joint
venture, as Construction Manager to oversee construction of the Baseball Stadium. The Stadium
Developer and the Team Affiliates represent and warrant that, to their knowledge, they did not,
at any time prior to the execution of this Agreement, and shall not, at any time subsequent to its
execution, confer any unfair competitive advantage to any contractor with respect to the Baseball
Stadium Project in violation of Applicable Law. The Construction Manager shall select and
engage such other service providers in connection with the Work as the Stadium Developer and
Construction Manager may deem necessary.
(b) The Stadium Developer shall enter into a Construction Management
Contract with Hunt/Moss, a Joint Venture, to oversee the construction of the Baseball Stadium,
and, subject to terms and conditions that must be expressly approved by the County and the City,
to oversee the construction of the Public Infrastructure. The Construction Management Contract
shall be consistent with the terms of this Agreement and shall at all times contain the
35
requirements set forth below and in Exhibit O attached hereto. The Stadium Developer shall
submit to the County and the City, for their review and approval, the Construction Management
Contract at least ten (10) days prior to its execution. With respect to the provisions of the
Construction Management Contract relating solely to the construction of the Baseball Stadium,
the County's and City's approval shall be limited to the reasonable determination that the
Construction Management Contract complies with the express requirements set forth in this
Agreement, and such approval (or responsive comments) shall be provided within seven (7)
days. The Government Parties' approval of the Construction Management Contract shall not be
deemed a waiver of any rights of the Government Parties contained in this Agreement. The
Construction Management Contract shall include provisions in compliance with Applicable
Laws, including the County's Community Small Business Enterprise programs (CSBE and
SBE), Community Workforce programs ("CWP") and responsible wages and benefits and
requisite bonding from the Stadium Developer and the Construction Manager as provided in
Sections 3.8(f), 3.8(g), 5.2(d), and 5.2(e), the insurance requirements set forth in Sections 8.1 and
8.2, and provisions under which the Construction Management Contract may be assigned to the
County in accordance with this Agreement. The CSBE and SBE goals for the Baseball Stadium
Project and the Public Infrastructure Work will be established for each construction trade
package. The Review Committee, which the County agrees will include at least one (1) member
designated by the City solely for the Baseball Stadium Work and the Public Infrastructure Work,
will recommend to the County Manager such CSBE and SBE goals in consultation with the
County Small Business Department ("SBD"), the City, the Stadium Developer and the
Construction Manager. The County Manager shall establish the CSBE and SBE goals upon
receipt of the recommendations from the Review Committee. The Parties agree that CSBEs and
SBEs having an actual place of business in the County, including areas that have been designated
in the City's Community Development Plan as Neighborhood Development Zones ("NDZ"), as
depicted in Exhibit P, shall be given an equal opportunity to compete for business in the
construction of the Baseball Stadium Project. The Stadium Developer agrees to include in the
Construction Management Agreement a prohibition against imposing any requirements on
CSBEs/SBEs that are not customary, not otherwise required by law, or impose a financial burden
that intentionally impacts CSBEs and/or SBEs. The Stadium Developer and the Construction
Manager agree to employ a comprehensive outreach program to identify, recruit, educate and
assist small and local businesses for the Baseball Stadium Project. The outreach program will
aim to ensure that qualified and interested firms are identified and educated on the portions of the
project for which they may be able to participate, and that firms are given education and industry
resources on issues such as project bonding and partnering opportunities with larger firms. The
Stadium Developer agrees to advocate for a more effective use of the existing Working Capital
and Bonding Assistance Programs that have been established by the SBD for small local
businesses. The Stadium Developer further agrees to include in the Construction Management
Agreement a requirement that the Construction Manager pay all prime contractors within five (5)
business days of the Construction Manager's receipt of payment from the project construction
fund, and that each prime contractor will pay its subcontractors and/or suppliers (if appropriate)
within five (5) business days after the prime contractor receives its payment (but within 48 hours
in the case of subcontractors that are CSBE and SBE firms in accordance with Sections 10-33.02
and 2-8.1.1.1.1, respectively, of the Miami -Dade County Code). The SBD has advised the
Stadium Developer that the Baseball Stadium Project shall be subject to a current CWP goal of
10%, in accordance with County Code Section 2-1701 and County Administrative Order 3-37
36
(collectively, the "CWP Regulations"). Any modification to the CWP goal shall be established
in accordance with the procedure set forth above for the establishment of the CSBE/SBE goals.
The Construction Manager shall, at a minimum, utilize SBD's hiring clearinghouse, to recruit
workers to fill needed positions for skilled laborers on the Baseball Stadium Project. The SBD
has advised the Stadium Developer that when the Construction Manager submits job hiring
requests through the SBD clearinghouse, SBD (including the staff person covered in Section
5.14 hereof) will submit such hiring requests through the clearinghouse, as well as through any
available Workforce Development Organizations, Workforce Recruitment/Referral
Organizations and other job hiring databases (including the South Florida Workforce and other
union and non-union clearinghouses), and SBD will submit the hiring requests to all designated
target areas ("DTAs") in Miami -Dade County, in addition to the DTA in which the Baseball
Stadium is located in order to fill such hiring needs as efficiently as possible and with as many
qualified candidates from within the DTAs as possible. The Stadium Developer shall cause the
Construction Manager to use diligent efforts to recruit workers from the DTAs and NDZs to
satisfy the CWP goal, subject to Section 2-1701 of the Miami -Dade County Code. The
compliance and penalty provisions set forth in the CWP Regulations shall apply to the local
workforce hiring provisions of this Section. In addition, the Construction Management
Agreement shall contain language that the Construction Manager will aspire to have as many
local workers and local firms as reasonably practical and aspire to have at least 50% of the
Baseball Stadium Project workers be residents of Miami -Dade County, 20% of which are City of
Miami residents, and aspire to have at least 35% of the firms hired as subcontractors on the
Baseball Stadium Project be firms located within Miami -Dade County. If the Construction
Manager hires more than 50% of the Baseball Stadium Project workers from within Miami -Dade
County, the percentage of City of Miami residents hired shall also increase proportionally. The
Stadium Developer shall use reasonable diligent efforts to execute the Construction Management
Contract within forty-five (45) days following the effective date of the Stadium Agreements.
The Stadium Developer shall not amend the above -referenced provisions or materially amend the
substantive provisions of the Construction Management Contract that affect the County or the
City without the consent of the County or the City (as applicable), which consent shall not be
unreasonably conditioned, withheld or delayed. During the term of the construction, the
Construction Manager and the SBD shall provide monthly reporting regarding the progress of
the CSBE, SBE, CBE, and CWP programs described above. The Stadium Developer shall
adhere to an aggressive small business outreach program (the "Construction Outreach
Program"). The Construction Outreach Program shall be developed jointly by the County, the
City, and the Stadium Developer and shall be designed to increase small business participation
during the construction of the Baseball Stadium with a view to supporting the aspirational small
business and local hiring goals described above, subject to Applicable Law. The County
Manager and the City Manager shall present the final terms of the Construction Outreach
Program for approval by the Board and the City.
(c) The Construction Management Contract shall require the Construction
Manager to manage the construction of the Baseball Stadium "at -risk" and to provide a
guaranteed maximum price ("GMP") for the direct and indirect construction costs of the
Baseball Stadium. The Construction Management Contract shall require that each subcontractor
of the Construction Manager indemnify the Stadium Developer, the County and the City in the
same manner and to the same extent that the Construction Manager indemnifies the Stadium
Developer, the County and the City under the Construction Management Contract.
37
(d) Before the Construction Manager commences its services related to the
Baseball Stadium, the Construction Manager shall execute, deliver to the County and City (with
copies to the Stadium Developer), and record in the public records of the County, the following
payment and performance bonds: (i) prior to establishment of the GMP pursuant to the
Construction Management Contract, a payment and performance bond in an amount equal to the
value of all preconstruction services to be provided by the Construction Manager under the
Construction Management Contract, (ii) to the extent that, prior to establishment of the GMP
pursuant to the Construction Management Contract, the Construction Manager enters into any
subcontracts or purchase orders, a payment and performance bond from the applicable
subcontractor or supplier in an amount equal to the total subcontract or purchase order amount,
and (iii) upon the establishment of the GMP pursuant to the Construction Management Contract,
a payment and performance bond in an amount equal to the total cost of construction of the
Baseball Stadium. Each payment and performance bond shall be in compliance with the terms of
Section 255.05, Florida Statutes, specifically in compliance with the requirements of Section
255.05(1)(a) and (c), 255.05(3), and 255.05(6), shall name the County, the City and the Stadium
Developer beneficiaries thereof, as joint obligees. Each payment made to the Construction
Manager for its performance of construction management services (i.e., management fee, profit,
office overhead, general conditions performed or provided by the Construction Manager as part
of its construction management services and cost of work that is self -performed by the
Construction Manager), shall be made by a dual party check (or other dual party payment
method) in the name of the Stadium Developer and the Construction Manager.
(e) Before the Construction Manager commences its services related to the
Baseball Stadium, (i) the Stadium Developer shall execute, deliver to the County (with a copy to
the City), and record in the public records of the County, a payment and performance bond for
the total cost of construction of the Baseball Stadium in compliance with the terms of Section
255.05, Florida Statutes, naming the County, the City and the Team Affiliate beneficiaries
thereof, as obligees; or (ii) in lieu of such bond, the Stadium Developer shall file with the County
an alternative form of security in the form of cash, irrevocable letter of credit, or other security of
the type listed in Section 255.05(7) or Part II of chapter 625, Florida Statutes (the "CM Services
Security"), in an amount equal to the total cost of the construction management services to be
performed by the Construction Manager (i.e., management fee, profit, office overhead, general
conditions, and cost of work that is self -performed by the Construction Manager if the payment
and performance of such self -performed work is not covered by the payment and performance
bond provided by the Construction Manager to the County and the City as provided in Section
5.2(d)), as depicted in the initial Schedule of Values divided by the total number of months that
comprise the performance period of the construction management services, all in accordance
with the provisions of Section 255.05(7), Florida Statutes. The amount of the CM Services
Security shall be adjusted in accordance with such formula as the total cost of the construction
management services and performance period are adjusted by Change Order. By way of
example, if the aggregate cost of the construction management services equals $35,000,000 and
such services are required for a period of 35 months, the amount of the required CM Services
Security would be equal to $1,000,000. The amount of the credit facility or other financial
arrangement required to be maintained by the Stadium Developer under Section 6.5 shall be
reduced by an amount equal to the CM Services Security and any uses thereof. The Stadium
Developer shall be permitted to use the CM Services Security to make its final payment to the
Construction Manager for the Baseball Stadium Work. In the event the CM Services Security is
38
used to cover the cost associated with the construction management services as contemplated
herein, the Stadium Developer shall replenish the CM Services Security in an amount equal to
such draws such that the CM Services Security at all times is equal to the amount required by
this section.
(f) Subject to the applicable provisions of Section 255.20, Florida Statutes, regarding
qualification requirements, the Stadium Developer shall require the Construction Manager to
include the following provision in each bid package:
"Any sub -contractor or contractor submitting a bid must acknowledge that in performance of a
subcontract, contract or any subcontract thereof, no apprentices or trainees may be utilized in a
particular recognized trade/work classification as otherwise provided for in Section 6 A. -E.,
Apprentices and Trainees, of the Supplemental General Conditions to Bidders of the Miami -
Dade County Responsible Employer Ordinance, Section 2-11.16 of the Code of Miami Dade
County, unless at the time of bid submission they establish and certify for that particular
trade/work classification:
That the firm participates in an Apprenticeship Program and shall continue to participate in such
program or programs for the duration of the project for those trade/work classifications in which
apprentices or trainees may be used.
An Apprenticeship Program is an apprenticeship program that is currently registered with and
approved by the U.S. Department of Labor or with a State Apprenticeship Agency and has
graduated apprentices to journeymen status for at least two of the past five years.
The firm shall provide, with this Certification, a list of all trade/work classifications of craft
employees it will employ with apprentices on the Project and documentation verifying it
participates in an Apprenticeship Program for each trade/work classification listed and that the
apprentices are attending school."
(g) The Stadium Developer shall cause the Construction Manager to comply with all of
the CSBE and SBE requirements set forth in Section 5.2(b) above during each phase of the
construction of the Baseball Stadium. Should the Construction Manager fail to comply with all
of the CSBE and SBE requirements set forth in Section 5.2(b) above, the Stadium Developer
shall cause the Construction Manager to make up the deficit on future phases of the construction
of the Baseball Stadium. If the Construction Manager is unable to make up the deficit on future
phases of the construction of the Baseball Stadium and the Construction Manager had failed to
exercise reasonable good faith efforts to achieve such goals, then the Stadium Developer agrees
to make a contribution equal to 150% of the deficit percentage of the construction phase(s) in
question into the Department of Business Development's Compliance Trust Fund. In the event
any such payment becomes due, the Stadium Developer agrees that it will not pass the expense
of such payment onto any CSBE or SBE that is in compliance with its contractual obligations.
5.3 Change Orders. Change Orders by the Stadium Developer relating to the
Baseball Stadium Work shall not require advance notice or approval by the Government Parties
provided that: (a) the Change Order does not delay or further delay the Substantial Completion
date beyond the Targeted Completion Date; (b) either the cost of the Change Order does not
39
cause the projected total Stadium Project Costs to exceed or further exceed the Stadium Project
Budget attached hereto as Exhibit H (as the same may be amended from time to time to reflect
approved increases) or the Stadium Developer shall have made arrangements reasonably
satisfactory to the County and the City for the funding by the Stadium Developer of any increase
in the Stadium Project Costs resulting from such Change Orders; (c) the Change Order does not
pose a material risk to public safety; (d) the Change Order does not eliminate a materially
important programmatic element from the Project Program Statement, or materially alter the
design intent for the exterior of the Baseball Stadium; (e) the Change Order does not cause a
Governmentally Caused Overrun unless the Stadium Developer and the Team waive, in writing,
any claims they may have against the County and the City for Governmentally Caused Overruns
resulting from such Change Order; (f) the cost of the Change Order does not cause the projected
total Public Infrastructure Costs to exceed or further exceed the Public Infrastructure Budget (as
the same may be amended from time to time to reflect approved increases), including any
increased costs caused by delays in completing the Public Infrastructure; and (g) the Change
Order is not likely to increase the cost of the Parking Facilities or delay substantial completion of
the Parking Facilities beyond the date anticipated for such substantial completion as set forth in
the Master Project Schedule. In addition, the Stadium Developer shall make any Change Orders
that are required to comply with the final permitted set of Construction Documents and
Applicable Law. Any Change Order that is not permissible as provided in clauses (a) through
(g) above shall be subject to the written approval of the County and City Representatives, which
approval shall not be unreasonably withheld or conditioned. The County and City
Representatives shall review any such Change Order within ten (10) Business Days from receipt
of written notice of the Change Order. Failure by the County and City Representatives to
respond within such ten (10) Business Days shall be deemed an approval. In the event the
County or City Representative rejects the proposed Change Order, such representative shall
provide to the Stadium Developer within said ten (10) Business Day period, detailed comments
outlining the reason why such Government Representative rejected the proposed Change Order.
Any dispute under this Section 5.3 shall be resolved by Expedited ADR under Section 14.2.
Until such time as the Government Representatives approve the Change Order or the dispute is
resolved by Expedited ADR, the Stadium Developer shall have the right to proceed with the
Baseball Stadium Work and other changes set forth in the proposed Change Order so long as the
Stadium Developer shall be responsible for funding any Stadium Cost Overrun resulting from
such Change Orders pending the final determination of responsibility for such Stadium Cost
Overruns. The Stadium Developer shall be permitted to issue Change Orders that it believes are
the result of Governmentally Caused Overruns without the approval of the Government Parties
or their representatives, provided that the issuance of such Change Order shall not affect the
ultimate determination as to whether such cost was a Governmentally Caused Overrun. Within
thirty (30) days following the effective date of this Agreement, the Parties shall develop a
Change Order management process that will outline the role of the Parties in processing and
approving Change Orders in accordance with the terms of this Agreement.
5.4 Project Coordination Team. The Parties have formed an administrative
committee that includes representation from the County, including a representative appointed by
the Chairperson of the Board, the City and the Stadium Developer (the "Project Coordination
Team") to perform the following functions: (a) receive an updated Construction Schedule and
Draw Down Schedule pursuant to Section 5.7; (b) receive reports pertaining to the Stadium
Project Budget and any other aspects of the Baseball Stadium Project; (c) receive other reports
40
and information from the Design Professionals and the Construction Manager as provided in this
Agreement; (d) maintain clear lines of communication to facilitate a successful Baseball Stadium
Project; (e) receive and review Change Orders; and (f) receive reports and records pertaining to
the Construction Outreach Program and the utilization of the CSBE, SBE and CWP programs.
The Project Coordination Team shall have periodic (at least monthly) regular meetings and
special meetings upon reasonable prior notice from any member of the Project Coordination
Team during the construction of the Baseball Stadium. Notwithstanding anything herein to the
contrary, all communications and approvals by the Government Representatives relating to the
Baseball Stadium Project shall be made through Stadium Developer.
5.5 Right to Inspect and Receive Information. The County and City Representatives
shall be given an opportunity to inspect the construction Work and materials and to review
construction documents as reasonably necessary to verify that the Work and materials are in
general conformance with the Project Program Statement and the Design Documents. In
addition, the Outreach Administrator shall be given the opportunity to review any and all
documents reasonably necessary to verify compliance with the Construction Outreach Program
and the utilization of the CSBE, SBE and CWP programs. The County and City Representatives
shall receive in writing from the Stadium Developer on a regular basis, and within the time
frames expressly set forth elsewhere in this Agreement or no less than monthly, information
regarding the progress of the Baseball Stadium Project and the Public Infrastructure through each
design phase and the construction of the Baseball Stadium and the Public Infrastructure. During
construction, the County and City Representatives shall receive advance notice of and have the
right to attend all scheduled Baseball Stadium Project and the Public Infrastructure meetings, and
the right to inspect the Baseball Stadium and the Public Infrastructure at all reasonable times,
subject to reasonable restrictions imposed by the Stadium Developer or Construction Manager.
The Stadium Developer shall make itself reasonably available to the County and City
Representatives throughout the duration of the Baseball Stadium Project and the Public
Infrastructure Work in order to keep the County and City Representatives reasonably informed
throughout the duration of the Baseball Stadium Project and the Public Infrastructure Work.
Any rights that the County and City Representatives have under this Section shall not be the
basis for any liability to accrue to the County or City from the Stadium Developer, the Team, or
third parties for such monitoring or investigation or for the failure to have conducted such
monitoring or investigation.
5.6 Stadium Project Budget. The initial Stadium Project Budget is attached hereto as
Exhibit H. The Stadium Developer shall update the initial Stadium Project Budget from time to
time to reflect the current cost of Work and any Change Orders implemented in accordance with
Section 5.3 of this Agreement and shall provide copies thereof to the Government
Representatives (the then current budget is referred to herein as the "Stadium Project Budget").
The Stadium Developer shall provide the Government Representatives with monthly progress
reports, in a form reasonably acceptable to the Government Representatives, relating to the
Stadium Project Costs, including all expenditures by the Stadium Developer during the
preceding month.
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5.7 Project Schedules.
(a) The Parties have attached a Preliminary Milestones Schedule for the
Baseball Stadium, Public Infrastructure and Parking Facilities as Exhibit N. The Parties shall
jointly agree on a Master Project Schedule no later than June 1, 2009. The Parties shall act
reasonably in reaching agreement on the Master Project Schedule and shall give due
consideration to the recommendations of the Construction Manager. The Stadium Developer
shall update the Master Project Schedule monthly to reflect changes to the milestone dates
reflected in the respective construction schedules relating to the Work. Copies of the monthly
updates shall be provided to the Government Representatives for their review. The Stadium
Developer shall provide notice to the Government Representatives of any amendments to any
material milestone date contained in the Master Project Schedule and shall obtain the consent of
the Government Representatives to any amendment that would foreseeably result in a
Governmentally Caused Overrun or a Public Infrastructure Cost Overrun (including any
amendments to milestone dates, float times, activity durations and connectivity logic). The
Stadium Developer shall provide any such proposed amendment to the Government
Representatives and the Government Representatives shall provide their respective responses
within ten (10) Business Days following receipt of the proposed amendment. Failure by the
Government Representatives to respond within such ten (10) Business Days shall be deemed an
approval. In the event a Government Representative does not approve the amendment, such
Government Representative shall provide to the Stadium Developer within said ten (10) Business
Day period, detailed comments outlining the reason why such Government Representative does
not approve the proposed amendment. In the event the proposed amendment is not approved or
deemed approved by the Government Representatives, the Stadium Developer shall either
continue the process until such time as the Government Representatives have approved the
amendment or submit the dispute to Expedited ADR pursuant to Section 14.2. Such Expedited
ADR may not expand or otherwise modify the express delegations of authority granted to the
Government Representatives under this Agreement. Other than for extensions resulting from
Force Majeure, neither the Targeted Completion Date nor the date set forth in the Master Project
Schedule for Substantial Completion of the Public Infrastructure shall be extended without the
prior written approval of the Government Representatives.
(b) The Stadium Developer shall provide to the Government Representatives
the Construction Schedule for the Work issued by the Construction Manager and all updates to
such construction schedules. The Construction Schedule shall set forth the construction start
dates and time parameters required to meet the Targeted Completion Date, the date set for
Substantial Completion of the Work and all other major milestone dates set forth in the Master
Project Schedule. The Construction Schedule shall utilize the Primavera format or another
format commonly used in the construction industry for large commercial construction projects.
The Stadium Developer shall cause the Construction Manager to update the Construction
Schedule monthly. The Stadium Developer has informed the City that the Construction
Schedule initially calls for construction work to occur on-site from lam — 7pm (or 6am — 6pm)
on weekdays, with work on weekends as necessary from time to time, and with work to begin
earlier in the day during the concrete pouring phase of construction. The City shall use
reasonable good faith efforts to accommodate the on-site work hours required for the
Construction Manager and its subcontractors in order to meet the deadlines in the Construction
Schedule, respectively.
PNJ
(c) The initial draw down schedule setting forth the monthly payments
estimated to be necessary for the timely completion of the Baseball Stadium is attached hereto as
Exhibit I. The Stadium Developer shall provide to the Project Coordination Team monthly
updates to the draw down schedule (as so updated, the "Draw Down Schedule"). The monthly
updates to the Draw Down Schedule shall reflect actual payments made and shall reasonably
reflect anticipated funding requirements as predicted by the most recently updated Master Project
Schedule and/or Construction Schedule.
(d) The Stadium Developer shall use reasonable best efforts to achieve
Substantial Completion prior to the Targeted Completion Date (in the case of the Baseball
Stadium) and the date set forth in the Master Project Schedule for Substantial Completion of the
Public Infrastructure (in the case of the Public Infrastructure), subject to extensions resulting
from Force Majeure.
5.8 Procurement of Construction Materials. Exhibit J sets forth the terms under
which the County will purchase construction materials and equipment for the Baseball Stadium
and the Public Infrastructure on a sales tax exempt basis pursuant to State law. The County's
obligation to implement a sales tax exempt procurement program in accordance with the terms of
Exhibit J shall be subject to the Stadium Developer's receipt of a favorable opinion provided by
the State of Florida Department of Revenue indicating that purchases in accordance with such
procurement program will be exempt from sales tax. Except as otherwise set forth in Section
5.11, if a favorable opinion is not issued, the County shall fund the increase to the Stadium
Project Budget attached hereto as Exhibit H solely attributed to sales taxes paid for construction
materials and equipment for the Baseball Stadium that were expected to be exempt from tax
under the materials procurement program in an amount not to exceed $4,400,000. To the extent
a favorable opinion is issued, then, upon receipt of such opinion, the County shall not be liable to
fund any amounts relating to the expected sales tax savings under the materials procurement
program. The Construction Management Contract shall accommodate the program for the
County's purchase of construction materials as set forth in Exhibit J.
5.9 Punch List. The Architect and the Stadium Developer, in consultation with the
Government Representatives, shall cause to be prepared a punch list of items to be completed by
the Construction Manager after Substantial Completion so that the Work will be in general
conformity with the Construction Documents. The Stadium Developer shall provide the
Government Representatives with a copy of the punch list for review and informational purposes
only. The Stadium Developer shall use reasonable efforts to cause the Construction Manager to
complete the punch list items as soon as reasonably practicable in accordance with the
Construction Management Contract. All work shall be performed by the Construction Manager
in a good and workmanlike manner in conformity with the Construction Documents so that on
the Final Completion date the Baseball Stadium and the Public Infrastructure are in good
working order and condition and ready for immediate use.
5.10 Warranties. To the extent practicable, all Construction Manager, relevant
subcontractor, supplier and manufacturer warranties with respect to the Baseball Stadium shall
name the Stadium Developer, the Stadium Operator and the County as intended beneficiaries of
the warranties. To the extent practicable, all Construction Manager, relevant subcontractor,
supplier and manufacturer warranties with respect to the Public Infrastructure shall name the
43
County or City, as the case may be, as intended beneficiaries of the warranties. The Stadium
Developer shall not knowingly take any action negating the Construction Manager's, and any
subcontractors', suppliers' and manufacturers' warranties, except for emergencies, matters of
public safety and, with the prior consent of the County Representative and City Representative,
as applicable (which shall not be unreasonably withheld, denied or delayed), in connection with
the settlement of warranty claims.
5.11 Ownership for Income Tax Purposes. The Baseball Stadium and land comprising
the Baseball Stadium Site (other than easements) shall be owned solely by the County and no
other Person shall have any ownership interest therein. Except for any equipment, fixtures,
furniture or other personal property that remain the property of the Operator or the Team
pursuant to the Operating Agreement, all improvements, materials and equipments provided by
the Stadium Developer, or on its behalf, that become a part of the Baseball Stadium shall, upon
being added thereto or incorporated therein, be and become the property of the County. Team
Depreciable Assets shall be owned for income tax purposes by the Person who paid for or
provided said assets. Such Person shall retain the sole beneficial and depreciable interest for
income tax purposes (to the extent of its investment) in all such items. Neither the County, the
City nor any other Person shall have the right to take depreciation deductions with respect to
such items, or claim any other right to income tax benefits arising from Team Depreciable
Assets. For purposes of identifying the items subject to such interest of the Team Affiliates, the
Team Affiliates may cause a nationally recognized accounting, appraisal or valuation firm to
prepare a schedule (which shall be final and binding on the Parties absent manifest error)
allocating their investment among such items as it shall elect. In the event that the Florida
Department of Revenue does not issue a favorable opinion regarding the sales tax exemption
program described in Section 5.8, and such opinion is based solely on the Team Affiliate's right
to claim ownership of Team Depreciable Assets as set forth in this Agreement or the other
Stadium Agreements, the County shall not be required to fund the increase to the Stadium
Project Budget solely attributed to sales taxes paid for construction materials and equipment for
the Baseball Stadium that were expected to be exempt from tax under the materials procurement
program as more fully set forth in Section 5.8. In no event shall items funded by the County
using bond proceeds be allocated or reallocated pursuant to Proposed Treasury Regulations
§1.141-6 to the Stadium Developer, other Team Affiliate or any Person other than the County.
5.12 Liens. The Stadium Developer shall use commercially reasonable efforts to cause
the Baseball Stadium and the Public Infrastructure to be constructed in accordance with the
Construction Documents free and clear of any and all Liens arising from the Work that encumber
the property comprising the Baseball Stadium Site or the property comprising the Public
Infrastructure. In the event any such Lien is filed by the Architect, Construction Manager, or any
subcontractors or suppliers, the Stadium Developer shall cause said Lien to be discharged or
transferred to appropriate bond within thirty (30) days of recording. If the Stadium Developer
does not discharge or transfer to appropriate bond any such Lien within thirty (30) days of
recording, the County shall have the right, but not the obligation, to cause the Lien to be released
by any means the County reasonably deems proper, including payment of the Lien from Stadium
Project Funds. The Stadium Developer shall have the right to contest any such Lien in good
faith.
FIF
5.13 Art in Public Places. The Baseball Stadium Project shall be subject to the Art in
Public Places provisions set forth pursuant to Section 2.11.15 of the Miami -Dade County Code
(the "Code"), and pursuant to the Dade County Guide to Art in Public Places (the "Guide")
which provisions of the Code and Guide are incorporated herein by reference. The 1.5% of all
capital costs (as defined by the Code) of the Stadium Project shall be conveyed to Miami -Dade
County Art in Public Places for the implementation of the Art in Public Places program and the
contract(s) with the artist(s) for the Baseball Stadium Project shall be between the artist(s) and
the Art in Public Places Trust in accordance with the Code and Guide. Art in Public Places will
work collaboratively with the Stadium Developer and the Team on the implementation of Art in
Public Places program pursuant to the requirements of the Code and pursuant to the Guide.
5.14 Small Business Program Monitoring. In order to provide sufficient monitoring
and assistance with the fulfillment of the CBE-A/E, Community Workforce, Responsible Wages
and CSBE programs applicable to the Baseball Stadium Project, the County shall assign one full-
time staff person to work under the direction of the County Small Business Department to
monitor and assist the Stadium Developer in its compliance with such County programs. The
Stadium Developer, the County, and Major League Baseball each have agreed to contribute
$107,333.00 to fund the total cost of this dedicated staff person for the term of the Baseball
Stadium construction period. The Stadium Developer will guarantee payment of MLB's portion
of the funding commitment in this Section 5.14. The County shall have the right to contract with
an independent professional ("Outreach Administrator") and such Outreach Administrator shall
be tasked with the responsibility of assisting the County, the City and the Team with the
development of the Construction Outreach Program and with monitoring compliance with such
program, and the CSBE, SBE and CWP programs.
ARTICLE VI
190161119 11161 11lMUM
6.1 Sources of Funds. The sources of funds for the Baseball Stadium Project and the
Public Infrastructure are depicted in Exhibit K.
6.2 County Funding. The County shall issue and sell (a) one or more series of taxable
or tax-exempt revenue bonds secured by legally available convention development tax receipts,
legally available professional sports tax receipts and legally available tourist development tax
receipts and (b) a series of general obligation bonds in the amount of $50,000,000 from the
Building Better Communities General Obligation Bond Program (collectively, the "County
Bonds") in an aggregate amount sufficient (taking into account issuance costs, required reserves
and capitalized interest cost during construction) to deposit before or when such funds are due
under the Draw Down Schedule and make available to pay Stadium Project Costs: (x)
$347,500,000 of net proceeds into the County Account and (y) $35,000,000 of net proceeds into
the County Account, which is being deposited in consideration of, among other things, the
Team's annual payment to the County pursuant to Section 7 of the Non -Relocation Agreement.
The County, in its sole discretion, shall determine the details of the issuance of the County
Bonds, including the use of capitalized interest. If by July 1, 2009, the specific revenue sources
identified in (a) and (b) above will not be sufficient or available to permit the County to issue the
County Bonds in the amounts necessary to meet its funding obligations set forth in (x) above, the
45
Board, at a publicly noticed meeting, shall consider (i) proceeding with the issuance of the
County Bonds and/or other bonds utilizing the same funding sources by issuing debt in future
tranches or one or more additional funding sources in an amount necessary to meet its funding
obligations set forth in (x) above; or (ii) terminating this Agreement in accordance with Section
11.1.1. If the County has not terminated this Agreement on or before July 1, 2009 pursuant to
Section 11.1.1, the County hereby covenants to fund the amounts set forth in (x) and (y) above
from (i) the sources identified in (a) and (b) above or (ii) any other legally available Non Ad
Valorem Revenues, subject to the last two paragraphs of this Section 6.2 (clause (ii) being
referred to herein as the "Non -Ad Valorem Funding Obligation"). The County may, at its
option, use any other funding sources available to it to satisfy its obligations under this Section
6.2.
The County shall deposit the proceeds from the County Bonds or other funds described
above into the County Accounts in accordance with the Draw Down Schedule, except that the
$35,000,000 amount referred to in clause (y) above shall not be required to be deposited in the
County Account until the later of (i) three (3) months prior to the Stadium Developer's initial
deposit of the amounts specified in Section 6.4(c), and (ii) twelve (12) months prior to the
projected Substantial Completion date, and so long as in the interim the County advances, by
deposit into the County Account, such amounts as are required to make timely disbursements
from the County Account in accordance with the Draw Down Schedule. The County Bonds will
not be issued in whole or in part under Parts Il, III or V of Chapter 159 of the Florida Statutes.
If, pursuant to Section 8.3(c), the County funds a portion of the deductible costs or amounts
exceeding any applicable sub -limit under the Builder's Risk Insurance Policy and such costs or
amounts are not reimbursed by a Government Relief Grant, then the Stadium Developer shall,
within 90 days, contribute such amount, subject to the provisions of Sections 8.3 (b) and (d), to
the County Account on behalf of the County. Such contributions will relieve the County of its
obligations under this Section 6.2 up to the amount contributed by the Stadium Developer.
The County agrees, to the extent permitted by and in accordance with applicable law and
budgetary processes, to budget and appropriate in its annual budget for the applicable fiscal year,
by amendment if necessary, Non -Ad Valorem Revenues in an amount sufficient to satisfy the
Non -Ad Valorem Funding Obligation and any other funding or payment obligations under this
Agreement due during such fiscal year. Such agreement on the part of the County to budget and
appropriate Non -Ad Valorem Revenues shall be cumulative, and shall continue until such Non -
Ad Valorem Revenues in amounts sufficient to satisfy the Non -Ad Valorem Funding Obligation
shall have been budgeted, appropriated and actually funded. Notwithstanding the foregoing, the
County does not agree to (i) maintain any services or programs now provided or maintained by
the County that generate Non -Ad Valorem Revenues or (ii) levy and collect any particular Non -
Ad Valorem Revenues.
Nothing contained herein shall be deemed to create a pledge of or lien, legal or equitable,
on the Non -Ad Valorem Revenues, nor shall it preclude the County from pledging any of its
Non -Ad Valorem Revenues or other revenues to other obligations, nor shall it give any party to
this Agreement or any other party a claim on the Non -Ad Valorem Revenues. The County may
not expend moneys not appropriated or in excess of its current budgeted revenues. The
obligation of the County to budget, appropriate and fund the Non -Ad Valorem Funding
Obligation from Non -Ad Valorem Revenues is subject to the availability of Non -Ad Valorem
M,
Revenues after satisfying funding requirements for obligations having an express lien on or
pledge of such revenues and after satisfying funding requirements for essential governmental
services of the County.
6.3 City Funding. The City shall issue and sell one or more series of taxable or tax-
exempt revenue bonds backed by the convention development tax ("City Bonds"), and shall
remit such other funds, in an aggregate amount sufficient (taking into account issuance costs,
required reserves and capitalized interest during construction) to deposit $13,500,000 of net
proceeds into the City Account. The City, in its sole discretion, shall determine the details of the
issuance of the City Bonds, including the use of capitalized interest. The City shall make the
deposit described in this Section 6.3 prior to July 1, 2009; so long as in the interim the City
advances by deposit into the City Account such amounts as are required to make timely
disbursements from the City Account in accordance with the Draw Down Schedule. The City
Bonds will not be issued in whole or in part under Parts II, III or V of Chapter 159 of the Florida
Statutes.
6.4 Stadium Developer Funding. The Stadium Developer and/or other Team
Affiliates have funded and shall fund $155,000,000 of the Stadium Project Budget and the Public
Infrastructure Costs by (a) directly paying (i) Stadium Developer Soft Costs that are included
within the Stadium Project Budget and related to the Baseball Stadium and (ii) $1,000,000 of
Public Infrastructure Costs as provided for in Section 3.8(a); (b) a deposit of $35,000,000 into
the County Account as provided in Section 6.2(y); and (c) following the complete funding and
exhaustion of the City Account and the County Account, including the funds set forth in Section
6.2(y), depositing the balance of the $155,000,000 amount as and when needed, less any
earnings projected to be realized from the investment of the funds in the Stadium Developer
Account, and less any future projected Stadium Developer Soft Costs, into the Stadium
Developer Account; provided that such funds may be maintained in a third party account if
required by the terms of a Team Affiliates' financing. Any balance in the Stadium Developer
Account (less any amount needed to be reserved for completion of any identified punch list
items, and other than from earnings on the investment of monies deposited in the Stadium
Developer Account and any funding by the Team Affiliates in excess of $155,000,000, which
amounts shall be returned to the Team Affiliates) that remains after the later of (1) the date of
Final Completion of the Baseball Stadium and (2) the date all outstanding claims relating to the
Baseball Stadium Work have been paid, shall be transferred to the Capital Reserve Fund. The
Stadium Developer shall include the payments made under this Section 6.4 in the periodic
expense reports furnished under Article V, and shall provide the Govermnent Representatives
with evidence of those payments upon reasonable request. The County and City shall cooperate
with the Team Affiliates in their efforts to obtain financing including, if requested by a Team
Affiliate, by allowing the Team Affiliates to obtain any such financing through an industrial
development agency or other governmental body provided that such financing is non-recourse to
the County and City.
6.5 Cost Overruns.
6.5.1 Stadium Cost Overruns. The Stadium Developer shall fund and bear the cost of
all Stadium Cost Overruns other than Governmentally Caused Overruns. "Stadium Cost
Overrun" means all Stadium Project Costs (including, without limitation, all such costs of
47
planning, designing, constructing, and equipping the Baseball Stadium and all related indemnity
and damage obligations to, and amounts due and owing to, contractors, subcontractors, suppliers,
architects, engineers and other vendors) in excess of the total amount provided for in the initial
Stadium Project Budget attached hereto as Exhibit H. "Governmentally Caused Overrun" means
a Stadium Cost Overrun that delays or further delays the Substantial Completion date beyond the
Targeted Completion Date or causes the actual total Stadium Project Costs to exceed or further
exceed the Stadium Project Budget and results from: (i) any breach by the County or City, as the
case may be, of, or failure of a representation made in, this Agreement or one of the other
Stadium Agreements; (ii) any change in Applicable Law enacted by the County or City after the
date of this Agreement, other than a change of general application mandated by State or federal
law; (iii) changes in the design or construction of the Baseball Stadium imposed by the County
or City pursuant to Section 15.21 other than changes necessary to bring the Baseball Stadium
into compliance with generally applicable building, fire or other municipal codes; (iv) arising or
resulting from the work performed on the Other Development, the Public Infrastructure (unless
associated with environmental contamination within the Baseball Stadium Site or performed by a
private utility company under Section 3.6(f)), the Parking Facilities, the City's obligations under
Section 4.01 of the BSA or Article III of this Agreement, or any other work to be conducted by
the County or the City under this Agreement (except for the County's purchase of materials in
accordance with Exhibit J); (v) the City's remediation of environmental conditions as provided
in Section 4.01(a)(iv) of the BSA and Section 3.2 of this Agreement, the Limited Phase II Report
and the demolition of the Orange Bowl and related debris removal pursuant to the BSA to the
extent either affects the Baseball Stadium Site or the Public Infrastructure located within the
Entire Site; (vi) a delay caused by the failure of the County or the City, as the case may be, to
meet a deadline imposed on it in Sections 3.1 — 3.7 or Sections 6.2, 6.3, and 6.7 (if applicable);
or (vii) relating to the portions of the Replat and road abandonment and utility relocation or
abandonment processes that are within the County's or City's reasonable control in accordance
with the timetables set forth in Section 3.4(c), except to the extent any one of the foregoing
delays were caused by the Stadium Developer or another Team Affiliate or the Design
Professionals, the Construction Manager or other contractors or consultants engaged by a Team
Affiliate. Public Infrastructure Delay and Scheduling Overruns shall not constitute
Governmentally Caused Overruns. The County and the City shall each fund and bear the cost of
Governmentally Caused Overruns to the extent caused by it. If a Stadium Cost Overrun is both a
Governmentally Caused Overrun and a Stadium Cost Overrun caused by a Team Affiliate,
including a concurrently caused delay, the applicable Parties shall share in the funding of the
Stadium Cost Overrun in proportion to their relative contributions to the Stadium Cost Overrun.
Only delays that impact the critical path of the Baseball Stadium are compensable as
Governmentally Caused Overruns, provided, however, that any delays to the critical path of the
Baseball Stadium Project, or absorption of available float contributing to the critical path delay
on the Baseball Stadium Project, caused by the Government Parties shall be equitably allocated
with any delays to the critical path of the Baseball Stadium Project, or absorption of available
float contributing to the critical path delay on the Baseball Stadium Project, caused by the
Stadium Developer. The Construction Management Contract shall require that the Construction
Manager submit and implement a construction recovery schedule in each instance where a
critical path deadline has been missed due to unexcused delay on the part of the Construction
Manager. The Parties represent that as of the effective date of this Agreement, none of the
Parties is aware of the existence of a Governmentally Caused Overrun, or of any event that is
j7
reasonably likely to lead to a Governmentally Caused Overrun, or any delay to the milestone
dates in the Master Project Schedule. The Stadium Developer has provided the County and the
City with evidence that it has in place a dedicated bank line of credit or other similar financial
arrangement in the amount of at least $20,000,000 that may be used only to pay its Stadium Cost
Overruns. Except to the extent actually applied to pay Stadium Cost Overruns, such credit
facility or a replacement credit facility or financial instrument shall be maintained in place until
the Substantial Completion date.
6.5.2 Public Infrastructure Cost Overruns. Subject to the terms of Section 3.8, the
County and the City shall each fund and pay one-half of the cost of all Public Infrastructure Cost
Overruns except to the extent a Public Infrastructure Cost Overrun was caused by the Stadium
Developer's negligent performance of its duties under this Agreement or by Public Infrastructure
Delay and Scheduling Overruns. "Public Infrastructure Cost Overrun" means .all Public
Infrastructure Costs (including, without limitation, all such costs of constructing, and equipping
the Public Infrastructure, costs due to Unforeseen Site Conditions with respect to the Public
Infrastructure site, and all related indemnity and damage obligations to, and amounts due and
owing to, contractors, subcontractors, suppliers and other vendors) in excess of the total amount
provided for in Public Infrastructure Project Budget. Nothing herein shall preclude the County
or the City from pursuing reimbursement from any Person legally responsible for the Public
Infrastructure Cost Overrun, including the Architect and the Construction Manager, as
applicable.
6.6 Stadium Developer to Kcep Funding in Balance. The Stadium Developer shall
maintain a true, accurate, complete and up-to-date record that reconciles each line item of the
Stadium Project Budget against (a) the total amount of the Stadium Project Costs for that line
item that are covered by contracts in force, including adjustments due to amendments and/or
Change Orders; (b) the amount of Stadium Project Costs for that line item disbursed to date; (c)
the estimated amount of Stadium Project Costs for that line item necessary to be disbursed in the
future to complete (in accordance with the Design Documents) the design services, the
construction work, materials and other services covered by that line item; (d) any reductions due
to sales tax savings achieved, if any; and (e) the variance between the sum of items (b), (c) and
(d) for that line item versus the Stadium Project Budget for that line item. The Stadium
Developer shall be entitled to adjust the Stadium Project Budget by reallocating amounts
between line items, subject to the Change Order approval process, when applicable, in Section
5.3. A copy of the record shall be furnished at least quarterly to the County and the City. The
Stadium Developer shall be permitted to apply value engineering techniques to limit or prevent
Stadium Cost Overruns where in its judgment practical, subject to the Stadium Developer's
obtaining approval of Change Orders to the extent required under Section 5.3. The funding of
the Baseball Stadium shall be deemed to be "in balance" at a particular time of determination if
the sum of the following equals or exceeds the amount necessary to pay when due the total of the
estimated remaining amount of Stadium Project Costs necessary to complete the Baseball
Stadium in accordance with the Design Documents, namely the sum of (i) the then current
balance (including any bank letters of credit or other security, which may include the CM
Services Security) in the Funding Accounts, plus (ii) the amount of the County funding and City
funding yet to be deposited into the Funding Accounts under Sections 6.2 and 6.3, plus (iii) the
projected investment earnings on the Stadium Developer Account, plus (iv) the amount of any
Team Affiliate funding referenced in Section 6.4 or otherwise arranged by a Team Affiliate and
contractually committed solely for the purpose of funding the Baseball Stadium, plus the
remaining amount the Team Affiliates are required to fund, less (v) any interest earnings in the
County Account and the City Account from the investment of any funds on deposit in the County
Account and the City Account. The amounts in clauses (iii) and (iv) above shall be determined
in good faith by the Stadium Developer based on reasonable assumptions; any dispute as to those
amounts shall be resolved by Expedited ADR under Section 14.2. If and whenever the funding
of the Baseball Stadium is not in balance as provided in this Section, the Stadium Developer
shall report the details to the County and the City and, upon the written demand by the County or
the City, shall be obligated to bring the funding of the Baseball Stadium in balance within three
(3) months following the demand, except to the extent of any undisputed Governmentally
Caused Overruns.
6.7 Advancement of Funds. The Parties acknowledge that expenses have been
incurred and monies will be required to fund Stadium Project Costs prior to the issuance of the
Bonds and other funding contemplated by Section 6.2 and 6.3. Accordingly, the County and the
City shall advance monies to reimburse the Stadium Developer for expended Stadium Project
Costs (subject to Section 7.1(b)) and to fund future Stadium Project Costs at such times and in
such amounts as are provided in the Draw Down Schedule, provided that any increased costs in
an amended Draw Down Schedule shall be reasonably necessary to complete the Baseball
Stadium Project in accordance with the Construction Schedule upon their receipt of, and in
accordance with the directions set forth in, a properly completed and executed funding request in
the form of Exhibit L. Any such advances shall be made by the County and the City in
proportion to and in accordance with their contributions under Sections 6.2 and 6.3, and shall be
reimbursed to the applicable Government Party from its Funding Account upon the deposit of its
Bond proceeds into such Funding Account. Advances under this Section 6.7 shall only be
payable from the permitted sources identified in Sections 6.2 and 6.3. If the County or City,
respectively, has not issued the County Bonds or City Bonds by the date on which payment for
construction related insurance and construction mobilization costs are due, which date is shown
on the Draw Down Schedule, then the County or City, respectively, shall advance to Stadium
Developer funds for such insurance and mobilization costs in accordance with this Section 6.7
and shall, when the County Bonds are issued, reimburse itself for such advances from the
proceeds of the County Bonds. Notwithstanding the foregoing, prior to July 1, 2009, no Party
shall be obligated to advance funds not identified in the Schedule of Eligible Reimbursable
Expenses, and in no event any amounts in excess of its respective Reimbursable Interim Costs
Limitation.
6.8 Government Costs. Each of the County and City shall be responsible for paying
its Government Costs directly, and not from the Funding Accounts. In no event shall the
County's or the City's contributions as set forth in Sections 6.2 and 6.3, or the amount of the
Bond proceeds or other funds required to be deposited into the Funding Accounts, be reduced to
pay for or as a result of any Government Costs. Notwithstanding the foregoing, each of the
County and the City shall have the right to pay Government Costs from any earned interest on
deposit in the County Account and the City Account, respectively.
6.9 Equipment Leasing. The County Representative shall have the right to review all
leases and related documents associated with the leasing of material equipment and system
components of the Baseball Stadium, or the lease term sheet(s) referred to below. The County
50
Representative shall have the right to approve any leasing of material equipment or system
components if such lease is for a line item in the Stadium Project Budget equal to or in excess of
$7,500,000, which approval shall not be unreasonably withheld, conditioned, or delayed.
Approval of the County Representative shall not be required with respect to any lease entered
into after Substantial Completion. Any request for approval shall be accompanied by a term
sheet for the proposed lease(s) containing all material business terms and economic terms of the
proposed lease. Approval shall be granted or denied within three (3) Business Days of the
written request for such approval. The failure of the County Representative to respond in writing
within three (3) Business Days shall be deemed to be approval. In the event the Stadium
Developer and the County Representative disagree, such disagreement shall be submitted for
Expedited ADR pursuant to Section 14.2. With respect to all such leases, upon the termination
of the Operating Agreement, the County shall have the right, at its sole discretion, to assume
such leases and Stadium Developer shall cause all such leases to be assignable to the County.
6.10 State Funding. The County and the City shall use reasonable best efforts and
work cooperatively, including any reasonable assistance needed from the Team Affiliates, to
secure funding from the State in the form of a sales tax rebate or other available State funding to
defray Stadium Project Costs or costs related to the Baseball Stadium. Unless otherwise required
by the State, the amount of any such State funding shall be deposited into the Capital Reserve
Fund.
ARTICLE VII
CONSTRUCTION FUNDING
7.1 The Funding Accounts.
(a) Each Party shall establish its own Funding Account with a reputable bank
or other financial institution prior to the date it is required to deposit fluids therein under Article
VI, and shall maintain such Funding Account until all funds deposited therein are applied in
accordance with this Agreement. Each Funding Account and moneys on deposit therein (i) shall
be kept separate and apart from all other funds and accounts of the applicable Party (except those
funds may be comingled with other funds solely for investment purposes), (ii) shall be
withdrawn, used and applied solely for the payment of Stadium Project Costs and as otherwise
expressly provided by the respective bond ordinances and resolutions specifically governing the
County Bonds issued under Section 6.2 and in this Agreement, (iii) shall be invested solely in
conservative investments that may not reduce the amounts deposited into the Funding Account
and may be immediately withdrawn for the purposes contemplated by this Agreement, and (iv)
shall be free and clear of all liens, claims, charges, security interests and encumbrances
("encumbrances"), except for encumbrances in favor of holders of the County Bonds and bonds
issued on parity with the County Bonds or City Bonds, in the case of the County Account and
City Account, and encumbrances in favor a provider, guarantor or insurer of financing to the
Team Affiliates, in the case of the Stadium Developer Account. The Stadium Developer
Account may be maintained with such provider, guarantor or insurer of financing, or its
designee, pursuant to the terms of such financing. The Parties shall deposit their contributions
into their respective Funding Accounts as provided in Article VI.
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(b) Funds in the Funding Accounts shall be used to pay Stadium Project
Costs, including purchases of materials and equipment by the County on a sales tax exempt basis
in accordance with Section 5.8 and Exhibit J, and to reimburse the City and County for
construction advances as provided in Section 6.7. Notwithstanding the foregoing, (i) neither the
Team nor the Stadium Developer shall be reimbursed from the County Account or the City
Account for any Design Professional fees, except in the case of damages to be paid by the
County or City for breach of this Agreement or another Stadium Agreement, (ii) lobbying costs
incurred by the Team Affiliates are not eligible for payment or reimbursement from the County
Account or the City Account, and (iii) soft costs which may not be capitalized as project costs
are not eligible for payment or reimbursement from the County Account or the City Account. If
pursuant to the applicable bond ordinances and resolutions, funds deposited into the County
Account are diverted for any purpose other than to pay Stadium Project Costs, the County
covenants to make up the amount of such diverted funds from available Non Ad -Valorem
Revenues or any other funding sources available to it in accordance with Section 6.2, as soon as
reasonably practicable.
(c) Earnings from the investment of the County Account and the City
Account may be used when realized by the County and the City, respectively, for their respective
uses to pay any costs, including soft costs, related to the Baseball Stadium with any remainder to
be used for any other lawful purpose. Earnings from the investment of the Stadium Developer
Account shall be retained in the Stadium Developer Account for the authorized uses thereof.
Each Party may pay the fees and expenses of the financial institution holding its Funding
Account from the investment earnings therein, but not from the funds deposited therein under
Article VI.
(d) Monthly statements of all activity in each Funding Account shall be
furnished to the County, the City and the Stadium Developer, and the Parties shall have the right
to audit those statements.
(e) The County and the City shall each establish a Public Infrastructure
Funding Account with a reputable bank or other financial institution to fund their respective
portions of the Public Infrastructure Costs. Each Public Infrastructure Funding Account shall be
funded as provided in Section 3.8 prior to the date by which funds are required for payment of
the Public Infrastructure Costs. The funding procedures and accounting obligations set forth in
the other provisions of this Article VII shall apply to each Public Infrastructure Funding
Account.
7.2 Funding Requests.
(a) The disbursement of funds from the Funding Accounts to pay Stadium
Project Costs shall be made first from. the County Account and the City Account ratably until
such funds are exhausted, then from the Stadium Developer Account.
(b) The Stadium Developer shall submit to the Government Representatives a
funding request in the form of Exhibit L that clearly delineates between the Baseball Stadium
Costs and the Public Infrastructure Costs. Upon receipt of a properly completed and executed
funding request and the supporting documentation required thereby, the County and City shall
52
cause the financial institutions holding their Funding Accounts to distribute funds from those
Funding Accounts in accordance with the instructions set forth in the funding request. Such
distributions shall be made no later than fifteen (15) days after the County's and City's receipt of
a properly completed and executed funding request, unless a later date is specified in the funding
request.
(c) The Stadium Developer may withdraw funds from the Stadium Developer
Account by submitting to the holder of such account a funding request in the form of Exhibit L,
or pursuant to such other procedures as may be required by the terms of the Team Affiliates'
financing. The Stadium Developer shall simultaneously provide a copy of any such funding
request, and the supporting documentation required thereby, to the Government Representatives.
(d) Upon the contribution of its Bond proceeds to its Funding Account, each
Government Party may withdraw funds from its Funding Account to reimburse itself for
advances made pursuant to Section 6.7.
ARTICLE VIII
INSURANCE; CASUALTY
8.1 Insurance Requirements. The Stadium Developer shall purchase and maintain, or
cause the Architect, Construction Manager or subcontractors (as appropriate) to purchase and
maintain, the following insurance policies (the "Insurance Policies"):
(a) Builder's Risk Insurance: Builder's risk insurance for direct physical loss
or damage resulting from an insured peril to the building, structures and other improvements
comprising all or part of the Baseball Stadium, including materials and equipment that are
intended for incorporation into the Baseball Stadium or the Public Infrastructure (as the case may
be), whether located at the Baseball Stadium Site, in storage, or in transit. The policy shall
include coverage for physical loss or damage from fire and other perils as are included under an
"all risk" or "special form" policy. Policy limits shall be equal to the replacement cost of the
Baseball Stadium, subject to sub -limits commercially and reasonably available in the South
Florida insurance market. The Stadium Developer shall be the first named insured, Miami -Dade
County shall be a named insured and the City of Miami and the Contractor shall be additional
insureds, as their interests may appear. The builder's risk insurance shall specifically insure the
construction materials and equipment purchased for the Baseball Stadium and the Public
Infrastructure by the County pursuant to the sales tax exempt procurement program set forth in
Exhibit J. If the Parties agree that the County should purchase the builder's risk insurance, then
(i) such insurance shall be purchased by the County; (ii) the cost thereof shall be a credit against
the County's funding commitments in Section 6.2; and (iii) the County shall be permitted to use
funds on deposit in the County Account to pay for the insurance premium and costs associated
with the builder's risk insurance.
(b) Professional Liability Insurance: Professional liability insurance for losses
that arise out of the professional services of the Architect and other professionals working on the
Baseball Stadium and the Public Infrastructure. Policy limits for the Architect shall be
$10,000,000 per claim/ annual aggregate. At its option, the Stadium Developer may either
53
acquire, or cause the Architect to acquire, additional professional liability coverage, if available
at commercially reasonable rates or the Stadium Developer may procure Owners Protective
Professional Insurance ("OPPI') with minimum limits of at least $20,000,000 each claim/annual
aggregate. Miami -Dade County shall be an additional insured to the OPPI policy.
(c) Workers' Compensation: Workers' compensation insurance meeting the
statutory requirements of the State, including, as applicable, Chapter 440, Florida Statutes.
(d) General Liability: Commercial general liability insurance coverage for
third party bodily injury or property damage claims (i) arising out of services performed by the
Stadium Developer or the Construction Manager prior to the start of construction for a combined
single limit for bodily injury and property damage of not less than $4,000,000 each
occurrence/annual aggregate, (ii) arising out of construction services performed on the Baseball
Stadium Site or portions of the Entire Site encompassing the Public Infrastructure after the start
of construction for a combined single limit for bodily injury and property damage of not less than
$50,000,000 each occurrence/annual aggregate, and (iii) arising out of construction services
performed on the Baseball Stadium Site after the date of Substantial Completion (for example,
punchlist or warranty work) for a combined single limit for bodily injury and property damage of
not less than $2,000,000 each occurrence/annual aggregate to the extent that such services are
not covered by the developer controlled insurance program contemplated below. The completed
operations coverage under the commercial general liability insurance relating to construction
services performed on the Baseball Stadium Site or portions of the Entire Site encompassing the
Public Infrastructure shall continue for a period of not less than five (5) years after Substantial
Completion. Miami -Dade County and the City of Miami shall be shown as additional insureds
with respect to this coverage.
(e) Business Automobile Liability Insurance — covering all owned, non -
owned and hired vehicles used in connection with this agreement in an amount not less than
$1,000,000.
(f) Other Insurance: The Stadium Developer shall have the right to procure
such other insurance coverages for the Project that, in the Stadium Developer's opinion, are
appropriate for the risk exposures that are incident to the design and construction of a major
professional sports facility or that are incident to the Baseball Stadium Site or portions of the
Entire Site encompassing the Public Infrastructure, including, but not limited to Contractor's
Pollution Liability Insurance.
The foregoing policy limits may be achieved by any combination of primary and excess policies
so long as the overall minimum limits are procured. The County and the City acknowledge that
the Stadium Developer is considering a "developer controlled" insurance program, which shall
include the following coverages (all as more fully set out in the Construction Management
Contract): general liability insurance, workers' compensation (including employers' liability)
insurance and excess coverage. The County and the City agree to provide to the Stadium
Developer general assistance and information as reasonably required by the Stadium Developer
or the insurance underwriters in connection with the Stadium Developer's procurement,
implementation and management of the "developer controlled" insurance program.
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8.2 General Insurance Provisions. The Stadium Developer shall cause to be furnished
to the Government Representatives certificates of insurance for the Insurance Policies setting
forth the limits and sub -limits for each of the Insurance Policies. The Stadium Developer shall
cause to be furnished to the Government Representatives copies of the Insurance Policies within
thirty (30) days after the Stadium Developer's receipt of the Insurance Policies. The Insurance
Policies, where appropriate, shall naive the County and the City as additional insureds, as their
interests may appear, and shall be maintained and kept in force at least until the date of
Substantial Completion. If the County determines that any Insurance Policy does not meet the
standard of commercially and reasonably available in the South Florida insurance market, the
County shall promptly notify the Stadium Developer in writing. The County may seek a
determination from the arbitrator pursuant to Article XIV as to whether any Insurance Policy
complies with the requirements of this Article VIII. If the arbitrator determines that the limits
purchased do not meet the standard of commercially and reasonable available in the South
Florida insurance market, then the Stadium Developer shall be required to immediately purchase
additional coverage to meet the standard as set forth by the arbitrator. The Insurance Policies
shall provide that coverage shall not be materially modified, reduced or cancelled until the
insurance carrier(s) endeavor to provide at least thirty (30) days' prior written notice of such
modification, reduction or cancellation to the County Representative. The Stadium Developer
shall provide the County Representative written notice of any material changes to the Insurance
Policies within thirty (30) days prior to the date the change becomes effective, if practicable, but
in no instance later than the date such changes become effective. The Insurance Policies shall be
obtained from financially sound insurance companies rated not less than A -;VII by A.M. Best &
Company (or any equivalent rating agency approved by the County Risk Management Division,
which approval shall not be unreasonably withheld) and authorized to do business in the State.
Any and all costs incurred by the Stadium Developer in discharging obligations under this
Article VIII shall be included as Stadium Project Costs.
8.3 Damage or Destruction Prior to Com lep tion.
(a) If at any time after Commencement of Construction and prior to
Substantial Completion, as the case may be, all or any part of the Baseball Stadium or Public
Infrastructure shall be damaged or destroyed by a casualty of any nature (a "Casualty"), the
Stadium Developer shall, to the extent Applicable Laws permit, promptly restore, replace,
rebuild, repair and/or alter (such work being "Casualty Repair Work") all or such portion of the
Baseball Stadium or Public Infrastructure as shall have been damaged or destroyed in general
conformance with the Design Documents, with such changes and alterations thereto as the
Stadium Developer shall request and the Government Representatives shall reasonably approve.
(b) Subject to Sections 8.3(c) and (d) below, the Stadium Developer shall be
responsible to fund all deductibles and amounts exceeding any sub -limits due under the Property
Insurance Policy for all Casualty Repair Work up to an amount of $10,000,000.
(c) Notwithstanding Sections 8.3 (b) above, if the County has been able to obtain
confirmation from the Florida Insurance Commissioner or other relevant state emergency
management agency (or other appropriate FEMA -related state agency) that the Property
Insurance Policy coverage is reasonable, then the County agrees to be responsible for the
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deductible costs, and any amounts exceeding any applicable sub -limit (if one exists), for any
claim made under the Builder's Risk Insurance Policy for a named storm.
(d) Notwithstanding anything to the contrary in this Agreement, if the reasonably
estimated costs and expenses of the Casualty Repair Work for the Baseball Stadium (excluding
changes and alterations requested by the Stadium Developer) exceed the sum of (i) the amount of
Builder's Risk Insurance Proceeds received by the Stadium Developer, (ii) the amount of any
Government Relief Grants received for the Baseball Stadium under Section 8.3(g) below, and
(iii) the amount of up to $10,000,000 to be funded by the Stadium Developer for deductibles and
sub -limit excesses as provided in Sections 8.3(b) above (the "Insurance Deficiency"), then the
Stadium Developer shall have no obligation to fund the Insurance Deficiency. In such event, the
Parties shall make a good faith effort to identify funding sources for the Insurance Deficiency in
order to rebuild the Baseball Stadium. If, within one hundred eighty (180) days after the
Casualty, the Parties, after having exercised good faith efforts, are unable to identify funding
sources sufficient to fund the Insurance Deficiency and to rebuild the Baseball Stadium, then any
Party shall have the option, exercisable by written notice to the other Parties to terminate this
Agreement. If any Party exercises its option to terminate this Agreement, the Stadium Developer
shall not be obligated to perform any Casualty Repair Work, the Builder's Risk Insurance
Proceeds shall be distributed as set forth in Section 8.3(f) below, the unexpended fiends on
deposit in the Funding Accounts shall remain with each respective contributing party, and this
Agreement shall terminate without any further obligations of the Parties under this Agreement.
(e) Notwithstanding anything to the contrary in this Agreement, with respect
to any damage or destruction of the Public Infrastructure, any applicable deductibles, self-insured
retention or other costs and expenses that are not covered by the insurance policies relating to the
Public Infrastructure shall be the responsibility of the Government Parties and funded by them as
Public Infrastructure Costs.
(0 Unless a Party terminates this Agreement pursuant to Section 8.3(d)
above, all Builder's Risk Insurance Proceeds shall be paid to the Stadium Developer, deposited
in the Stadium Developer Account, and used by the Stadium Developer for Casualty Repair
Work, provided that if such proceeds exceed Six Million Dollars ($6,000,000), such proceeds
shall be escrowed in an interest bearing account with a financial institution or other party
selected by the Stadium Developer and reasonably satisfactory to the County (the "Insurance
Escrow Agent") pursuant to an Insurance Escrow Agreement in form and substance reasonably
satisfactory to the Stadium Developer and the County (the "Insurance Escrow Agreement"). The
Insurance Escrow Agreement shall, except as set forth herein, in all events provide for
disbursement of the Builder's Risk Insurance Proceeds in accordance with the provisions of this
Article VIII. Any insurance proceeds (and earnings thereon) remaining following completion of
and full payment for such Casualty Repair Work shall be (i) paid to the Capital Reserve Fund if
the Casualty proceeds relate to the Baseball Stadium and (ii) paid to the County and the City,
50% each, if the Casualty proceeds relate to the Public Infrastructure. If this Agreement is
terminated pursuant to Section 8.3(d) above, the Stadium Developer shall allocate all Builder's
Risk Insurance Proceeds it receives with respect to any Casualty relating to the Baseball Stadium
(i) first to pay, at the option of the County, the demolition costs of any remaining improvements
on the Baseball Stadium Site and the costs of restoring the Baseball Stadium Site to a clean,
unimproved condition or the costs of initially securing and preserving the Stadium Premises, in
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light of its then existing state, in a manner reasonably acceptable to the County and the Stadium
Developer so that the Stadium Premises may be restored in the future; and (ii) any remaining
funds after paying (i) shall be allocated among the Stadium Developer and the Government
Parties in proportion to their financial contributions to the Baseball Stadium Project through that
date. If the Builder's Risk Insurance Proceeds relate to the Public Infrastructure, then all such
proceeds shall be paid to the Govermnent Parties in proportion to their financial contributions to
the Public Infrastructure.
(g) In the event of a Casualty resulting from a named storm, terrorist act or
other occurrence eligible for a Government Relief Grant, the County and the City shall work in
good faith with the Stadium Developer to apply for all appropriate Government Relief Grants
with respect to such Casualty, and shall use reasonable efforts to obtain the largest amount of
such grants without jeopardizing the ability to obtain funding for essential projects affecting
public health and safety. Any such grants must be applied to fund the repair or replacement as
specifically outlined in the specifically applicable award of the Government Relief Grant to the
extent they provide funds for Casualty Repair Work.
ARTICLE IX
REPRESENTATIONS, WARRANTIES AND COVENANTS
9.1 County Representations, Warranties and Covenants. The County represents,
warrants and covenants to the Stadium Developer and the City that:
(a) The County has full power and authority to enter into this Agreement, and
the execution, delivery, and performance of this Agreement by the County have been duly
authorized by all necessary governmental action (other than the various customary regulatory
approvals, licenses and permits which are required for the development, construction, use and
operation of the Baseball Stadium). The County Mayor or his designee is the party duly
authorized to execute and deliver this Agreement on behalf of the County and has so executed
and delivered this Agreement. All necessary governmental action required by the County has
been taken to duly authorize the execution, delivery and performance by the County pursuant to
this Agreement. This Agreement is a valid and binding obligation of the County, enforceable
against the County in accordance with its terms. The County Representative has been duly
authorized to act on behalf of the County as provided in this Agreement.
(b) Except as previously disclosed to the Stadium Developer and the City in
writing, the execution, delivery and performance of this Agreement and the Stadium Agreements
by the County are not prohibited by and do not conflict with any other agreements, instruments,
judgments or decrees to which the County is a party.
(c) Neither the execution, delivery nor, to the actual knowledge of the County,
performance of this Agreement by the County violates the County Charter, the County Code or
any ordinance or resolution of the County. To the actual knowledge of the County, the County
has not received any notice as of the date of this Agreement asserting any noncompliance in any
material respect by the County with Applicable Laws with respect to the Baseball Stadium Site
and the transactions contemplated in and by this Agreement; and the County is not in default
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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 and the other
Stadium Agreements.
(d) Except as otherwise disclosed to the Stadium Developer and the City in
writing, to its actual knowledge, no suit is pending which has been served upon the County or of
which the County has actual knowledge, before or by any court or governmental body seeking to
restrain or prohibit, or seeking damages or other relief in connection with, the execution and
delivery of, or the consummation of the transactions contemplated in and by, this Agreement or
which might materially and adversely affect the construction, use and operation of the Baseball
Stadium as contemplated in and by this Agreement.
(e) If any Title Defect first arises subsequent to the execution of this
Agreement which is created by, through or under the County and not by the acts of the Stadium
Developer, the Team, the City or their respective agents, contractors, employees and tenants, the
County shall take all reasonable actions, at its sole cost and expense, to promptly eliminate such
Title Defect. The Stadium Developer acknowledges that utility easements and other matters
expressly permitted in this Agreement or the other Stadium Agreements shall not constitute a
Title Defect. Except as expressly permitted under this Agreement and the other Stadium
Agreements, the County shall not create any Lien which would encumber the Baseball Stadium
Site and materially diminish, impair or disturb the rights of the Stadium Developer under this
Agreement.
(f) The County will convey to the City pursuant to Section 3.10, good and
marketable title to Lots 3 and 4, free and clear of all Liens, except Permitted Exceptions.
9.2 City Representations, Warranties and Covenants. The City represents, warrants
and covenants to the Stadium Developer and the County that:
(a) The City has full power and authority to enter into this Agreement, and the
execution, delivery, and performance of this Agreement by the City have been duly authorized
by all necessary governmental action (other than the various customary regulatory approvals,
licenses and permits which are required for the development, construction, use and operation of
the Baseball Stadium). The City Manager is the party duly authorized to execute and deliver this
Agreement on behalf of the City and has so executed and delivered this Agreement. All
necessary governmental action required by the City has been taken to duly authorize the
execution, delivery and performance by the City pursuant to this Agreement. This Agreement is
a valid and binding obligation of the City, enforceable against the City in accordance with its
terms. The City Representative has been duly authorized to act on behalf of the City as provided
in this Agreement.
(b) Except as previously disclosed to the Stadium Developer and the County
in writing, the execution, delivery and performance of this Agreement and the other Stadium
Agreements by the City are not prohibited by and do not conflict with any other agreements,
instruments, judgments or decrees to which the City is a party.
(c) Neither the execution, delivery nor, to the actual knowledge of the City,
performance of this Agreement by the City violates the City Charter, the City Code or any
ordinance or resolution of the City. To the actual knowledge of the City, the City has not
received any notice as of the date of this Agreement asserting any noncompliance in any material
respect by the City with Applicable Laws with respect to the Entire Site and the transactions
contemplated in and by this Agreement; and the City 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 and the other Stadium
Agreements.
(d) Except as otherwise disclosed to the Stadium Developer and the County in
writing, to its actual knowledge, no suit is pending which has been served upon the City or of
which the City has actual knowledge, before or by any court or governmental body seeking to
restrain or prohibit, or seeking damages or other relief in connection with, the execution and
delivery of, or the consummation of the transactions contemplated in and by, this Agreement or
which might materially and adversely affect the construction, use and operation of the Baseball
Stadium or the Parking Facilities as contemplated in and by the Stadium Agreements.
(e) If a Title Defect arises subsequent to the execution of this Agreement
which is created by, through or under the City and not by the acts of the Stadium Developer, the
Team, the County or their respective agents, contractors, employees and tenants, the City shall
take all reasonable actions, at its sole cost and expense, to promptly eliminate such Title Defect.
The City shall not create any Lien which would encumber the Baseball Stadium Site and
materially diminish, impair or disturb the rights of the Stadium Developer under this Agreement.
(f) The City will convey to the County pursuant to Section 3.5, good and
marketable title to the Baseball Stadium Site, free and clear of all Liens, except Permitted
Exceptions.
9.3 Stadium Developer Representations, Warranties and Covenants. The Stadium
Developer represents, warrants and covenants to the County and the City that:
(a) The Stadium Developer is a limited liability company, duly formed and
validly existing under the laws of the State of Delaware, and has all requisite limited liability
company power and authority to enter into this Agreement. This Agreement is a valid and
binding obligation of the Stadium Developer, enforceable against the Stadium Developer in
accordance with its terms.
(b) The execution, delivery and performance by the Stadium Developer of this
Agreement have been duly authorized by all necessary limited liability company action of the
Stadium Developer and will not violate the Stadium Developer's certificate of formation or
limited liability company agreement, or the Major League Baseball Constitution, or result in the
breach of or constitute a default under any loan or credit agreement, or other agreement or
instrument to which the Stadium Developer is a party or by which the Stadium Developer or its
assets may be bound or affected. All consents and approvals of any Person (including members
of the Stadium Developer, if necessary) required in connection with the Stadium Developer's
execution of this Agreement have been obtained.
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(c) Except as otherwise disclosed to the County and City in writing, to its
knowledge, no suit is pending against or affects the Stadium Developer which has been served
upon or of which the Stadium Developer has knowledge which could have a material adverse
affect upon the Stadium Developer's performance under this Agreement or the financial
condition or business of the Stadium Developer. There are no outstanding judgments against the
Stadium Developer.
(d) The Stadium Developer has not paid or given, and will not pay or give,
any third person any money or other consideration for obtaining this Agreement or the other
Stadium Agreements, other than normal costs of conducting business and costs of professional
services such as the services of architects, engineers and attorneys.
(e) The execution, delivery and performance of this Agreement and the other
Stadium Agreements are not prohibited by and do not conflict with any other agreements,
instruments, judgments or decrees to which the Stadium Developer is a party or is otherwise
subject.
(f) The controlling owner of the Team has, simultaneously with the execution
of this Agreement, executed the affidavit in the form attached hereto as Exhibit M.
(g) The Stadium Developer has received no notice as of the date of execution
of this Agreement asserting any noncompliance in any material respect by the Stadium
Developer with any Applicable Laws with respect to the transactions contemplated in and by this
Agreement and the other Stadium Agreements; and the Stadium Developer 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 and the other
Stadium Agreements.
9.4 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, subject, however, in all instances to any
necessary Board or Commission approvals.
(b) In exercising its rights and fulfilling its obligations under this Agreement
and each of the other Stadium Agreements, each of the Parties shall act in good faith.
(c) No Party shall terminate 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 any other Stadium Agreement. 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.
(d) Each Party shall contest any challenge in which the Baseball Stadium
Project, the design, construction, financing, licensing or operation of the Baseball Stadium or this
Agreement or any of the other Stadium Agreements is placed in issue or questioned by any
Person whatsoever, including all appellate proceedings, the purpose of such litigation being to
estop, hinder or delay the acquisition of the Baseball Stadium Site or the negotiation, execution
or implementation of this Agreement or any of the other Stadium Agreements involving any of
the County, the City or the Team Affiliates (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 Parties shall pay all of the
legal fees, costs and other expenses incurred by it in contesting the Challenge. The applicable
parties shall consult with the other Parties in contesting any Challenge and the Parties agree to
cooperate and act reasonably and diligently in defending 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 except with respect to the County or City, any such action
which requires approval of the Board or Commission, as the case may be, or is not deemed by
the County or City, as the case may be, to present a conflict of interest or is not deemed by the
County or the City, as the case may be, to be contrary to Applicable Law. During the pendency
of any Challenge, the County or City (as appropriate) shall continue to process all requests for
Development Requirements, and shall continue to issue such Development Requirements, for the
construction of the Baseball Stadium, even if such Development Requirements might be
invalidated if the Challenge is determined adversely to the Parties, unless the continued
processing and/or issuance of the Development Requirements during the pendency of the
Challenge is expressly contrary to law.
(e) Should any Party receive knowledge about any matter which may
constitute a breach of any of its warranties or covenants set forth in this Article IX which arises
after the date of this Agreement, it shall promptly notify the other Parties of the same in writing.
Specifically, without limitation, the Parties shall promptly inform the others of any suits referred
to in Sections 9.1(d), 9.2(d) and 9.3(c) and any Challenge referred to in Section 9.4(d).
(f) During the term of this Agreement, the County shall comply with all
Applicable Laws relating to its ownership of the Baseball Stadium and the Baseball Stadium
Site, but not with respect to the use, operation, development, occupancy and/or construction of
the Baseball Stadium by the Stadium Developer (which shall be the responsibility of the Stadium
Developer, except as specifically provided below). Each Government Party shall comply with
all Applicable Laws relating to the exercise of its rights and performance of its obligations under
the Stadium Agreements, but not with respect to the use, operation, development, occupancy
and/or construction of the Baseball Stadium by the Stadium Developer (which shall be the
responsibility of the Stadium Developer, except as specifically provided below). The County in
its capacity as owner of the Baseball Stadium and Baseball Stadium Site shall execute such
documents and file such documents and reports as may be reasonably necessary to enable the
Stadium Developer, the Stadium Operator and their Affiliates to obtain and maintain all
necessary permits and licenses that are required of an owner of the Baseball Stadium and/or
Baseball Stadium Site. With regard to any entry by the County or the City into the Baseball
Stadium for any purpose, the County and the City shall comply with all Applicable Laws relating
to such entry.
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(g) All covenants, representations and warranties contained in this Agreement
shall survive the execution and delivery of this Agreement. No action taken pursuant to or
related to this Agreement, including any investigation by or on behalf of a Party shall be deemed
to constitute a waiver by the Party taking such action of compliance with any representation,
warranty, condition or agreement in this Agreement.
(h) In exercising its rights and fulfilling its obligations under this Agreement
and each of the other Stadium Agreements, each of the County, the City and the Stadium
Developer shall act in good faith. Notwithstanding the foregoing, each party acknowledges that
in each instance under this Agreement and the Stadium Agreements where a party is obligated to
exercise good faith or to use good faith 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, or undertake
good faith 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 good faith.
(i) By execution of this Agreement, the County hereby authorizes the County
Mayor or his designee to execute on behalf of the County any additional documents, subject to
Board approval where required by Applicable Law or where, in the discretion of the County
Mayor or his designee, in consultation with the County Attorney's Office, the County Mayor or
his designee determines that Board approval is necessary or desirable. Notwithstanding the
foregoing, (a) each party shall have reasonable approval rights over the form and substance of all
documents which it is asked to execute; (b) no party shall be required to fundamentally change
any rights, duties or obligations of such party under this Agreement or the Stadium Agreements;
and (c) such documents may, if required by Applicable Law or the County Mayor or his
designee, after consultation with the County Attorney's Office, deems necessary or desirable,
require approval of the Board.
ARTICLE X
DEFAULTS AND REMEDIES
10.1 Stadium Developer Default. Each of the following shall constitute a default by
the Stadium Developer hereunder (a "Stadium Developer Default"):
(a) If any representation or warranty made by the Stadium Developer in this
Agreement shall at any time prove to have been incorrect in any material respect as of the time
made, and the Stadium Developer fails to cause such representation or warranty to become
correct within thirty (30) days after written notice thereof is given to the Stadium Developer by a
Government Representative; provided, however, that if it is not reasonably possible to cause
such representation or warranty to become correct within such thirty (30) -day period, such cure
period shall be extended for up to one hundred eighty (180) days following the date of the
original notice if within thirty (30) days after such written notice the Stadium Developer
commences and thereafter diligently continues to cause such representation or warranty to
become correct.
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(b) If the Stadium Developer fails to pay any amount payable by the Stadium
Developer under this Agreement and fails to cure the same within thirty (30) days after written
notice to the Stadium Developer from a Government Representative, except to the extent such
failure is due to the failure of a Government Party to fund an undisputed funding request
(including any disputes resolved through arbitration hereunder) made in accordance with Section
6.7 or 7.2; provided, however, that no cure period shall apply to, and no right to cure exists for,
the failure of the Stadium Developer to pay any amount it is obligated to pay under Article VI.
(c) If the Stadium Developer shall breach any of its other covenants or
agreements in this Agreement other than as referred to in Sections 10.1(a) and (b) and such
breach is not cured within thirty (30) days after written notice thereof is given to the Stadium
Developer by a Government Representative; provided, however, that if it is not reasonably
possible to cure such breach within such thirty (30) -day period, such cure period shall be
extended for up to one hundred eighty (180) days following the date of the original notice if
within thirty (30) days after such written notice the Stadium Developer commences and
thereafter diligently continues to cure such breach.
10.2 Government Party Default. Each of the following shall constitute a default by a
Government Party hereunder (a "Government Party Default"):
(a) If any representation or warranty made by a Government Party in this
Agreement shall at any time prove to have been incorrect in any material respect as of the time
made, and the Government Party fails to cause such representation or warranty to become correct
within thirty (30) days after written notice thereof is given to the Government Party by the
Stadium Developer; provided, however, that if it is not reasonably possible to cause such
representation or warranty to become correct within such thirty (30) -day period, such cure period
shall be extended for up to one hundred eighty (180) days following the date of the original
notice if within thirty (30) days after such written notice the Government Party commences and
thereafter diligently continues to cause such representation or warranty to become correct.
(b) If a Government Party fails to pay any amount payable by the Government
Party under this Agreement and fails to cure the same within thirty (30) days after written notice
to the Government Party from the Stadium Developer; provided, however, that such cure period
shall not apply to, and no right to cure exists for, the failure of a Government Party to pay any
amount it is obligated to pay under Article VI, and a ten (10) day cure period shall apply for any
failure to comply with the obligations under Section 7.2(b).
(c) If a Government Party shall breach any of the other covenants or
provisions in this Agreement other than as referred to in Sections 10.2(a) and (b) and such breach
is not cured within thirty (30) days after written notice thereof is given to the Government Party
by the Stadium Developer; provided, however, that if it is not reasonably possible to cure such
breach within such thirty (30) -day period, such cure period shall be extended for up to one
hundred eighty (180) days following the date of the original notice if within thirty (3 0) days after
such written notice the Government Party commences and thereafter diligently continues to cure
such breach; provided, further, that no cure period shall not apply to, and no rights to cure exists
for, any covenant that is required to be performed by a specified date or during a specified period
of time.
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10.3 Remedies.
(a) Subject to complying with Article XIV with respect to matters that must
be resolved by arbitration, in addition to any other rights or remedies, except as otherwise
specifically provided in this Agreement or any of the Stadium Agreements, any Party may
institute litigation to recover damages for any Default (including any damages a Party may incur
relating to the Parking Facilities) 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) consistent with the purposes of this Agreement. Subject to Article XIV, to
the extent applicable, neither the existence of any claim or cause of action of a Party against
another Party, whether predicated on this Agreement or otherwise, nor the pendency of
arbitration proceedings involving another Party, shall (a) constitute a defense to specific
enforcement of the obligations of such other Party under this Agreement or (b) bar the
availability of injunctive relief.
(b) Litigation permitted by this Agreement shall only be instituted in the
eleventh Judicial Circuit Court of Florida for Miami -Dade County or the Miami division of the
United States District Court for the Southern District of Florida. The Parties consent to the
jurisdiction and venue of such courts for such permitted litigation.
(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 Party to exercise any right or remedy as provided in this
Agreement shall not be deemed a waiver by that Party of any claim for damages it may have by
reason of the Default.
(e) Damages to be paid by the County and City under this Article X shall be
payable from Non -Ad Valorem Revenue sources.
10.4 Self -Help Remedies.
(a) If a court of competent jurisdiction or the Arbitrator(s) selected under
Article XIV has determined pursuant to a final judgment or award that a Stadium Developer
Default has occurred and such Stadium Developer Default is continuing, or if Stadium Developer
has abandoned the Baseball Stadium Project for a period of sixty (60) consecutive days without
providing to the Government Parties reasonable assurances as to Stadium Developer's ability to
proceed with the Baseball Stadium Project, then, in addition to any other remedy available to the
Government Parties under this Agreement, the Government Parties may pursue any one or more
of the following remedies concurrently or successively, it being the intent hereof that none of
such remedies shall be to the exclusion of any other:
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(b) Take possession of the Baseball Stadium Site and the Public Infrastructure
sites, as the case may be, and complete the construction and the equipping of the Baseball
Stadium and the Public Infrastructure sites, as the case may be, and do anything required,
necessary or advisable in the County's sole judgment to fulfill the obligations of the Stadium
Developer hereunder, including the rights to avail itself of or procure performance of the
Construction Management Contract or the Architect's Contract, as the case may be, to let any
contracts with the same contractors, architects, subcontractors or others and to employ watchmen
to protect the Baseball Stadium Site and the Public Infrastructure sites, as the case may be, from
injury. Without restricting the generality of the foregoing and for the purposes aforesaid, the
Stadium Developer hereby appoints and constitutes the County as the Stadium Developer's
lawful attorney-in-fact with full power of substitution in the premises to perform the following
actions:
(i) to complete construction and equipping of the Baseball Stadium
and the Public Infrastructure;
(ii) to use funds on deposit in the County Account, the City Account or
the Stadium Developer Account or to advance funds in excess of the Stadium Project Budget to
complete the Baseball Stadium and the Public Infrastructure, as the case may be;
(iii) to make changes in the Design Documents which shall be
necessary or desirable to complete the Baseball Stadium and the Public Infrastructure, as the case
may be;
(iv) to retain or employ new contractors, subcontractors, architects,
engineers and inspectors;
(v) without inquiring into and without respect to the validity thereof,
to pay, settle or compromise all existing bills and claims which may be Liens, or to avoid such
bills and claims becoming Liens, against the Baseball Stadium Site and the Public Infrastructure
sites, as the case may be or as may be necessary or desirable for the completion of the
construction and equipping of the Baseball Stadium, for the clearance of title to the Baseball
Stadium Site, for the completion of the construction and equipping of the Public Infrastructure,
or for the clearance of title to the Public Infrastructure site;
(vi) to prosecute and defend actions or proceedings in connection with
the Baseball Stadium Site and the Public Infrastructure, as the case may be;
(vii) to take action and require such performance as the County deems
necessary or advisable under any of the payment and/or performance bonds to be furnished by
the Construction Manager under the Construction Management Contract and to make settlements
and compromises with the surety or sureties there under, and in connection therewith, to execute
instruments of release and satisfaction; and
(viii) to do any and every act which the Stadium Developer might do in
its own behalf with respect to the Baseball Stadium Site and the Public Infrastructure, as the case
may be, it being understood and agreed that this power of attorney shall be a power coupled with
an interest and cannot be revoked.
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(b) Exercise or pursue any other remedy or cause of action permitted at law or
in equity or under this Agreement or any of the Stadium Agreements.
(c) If a court of competent jurisdiction or the Arbitrator(s) selected under
Article XIV has determined pursuant to a final judgment or award that a Government Party
Default has occurred and such Government Party Default is continuing, in addition to any other
remedy available to the Stadium Developer under this Agreement, the Stadium Developer shall
have the right, but not the obligation, to render the performance required to cure the Government
Party Default.
10.5 Termination. Notwithstanding any other provision in this Agreement to the
contrary, this Agreement may not be terminated by any Party (upon a Default or otherwise), and
each Party waives any right to terminate it may have at law or in equity, except where a specific
right of termination is granted to a Party under this Agreement or any other Stadium Agreement.
10.6 Exclusive Remedies. The rights and remedies conferred upon or reserved to the
Parties in this Article X 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.
ARTICLE XI
TERMINATION
11.1 Termination Rights.
11.1.1. Termination for Convenience. Any Party shall have the right at any time prior to
the earlier of (i) July 1, 2009, and (ii) the date that the County executes the final bond purchase
agreement and/or completes a competitive sale with respect to the County Bonds secured by the
Convention Development Tax and Professional Sports Franchise Facility Tax/Tourist
Development Tax, by written notice to the other Parties, to terminate this Agreement without
cause and/or for the Party's convenience. In the case of the City, such termination shall be
exercised only after approval by the Commission. Upon such termination all Parties shall be
relieved of all liabilities under this Agreement (except with respect to any breaches by any Party
prior to termination). In such event, each of the County, City and Stadium Developer shall be
responsible for Reimbursable Interim Costs up to their respective Reimbursable Interim Costs
Limitation. In the event any of the three Parties has expended more than its respective
Reimbursable Interim Costs Limitation, the Party or Parties, as the case may be, having spent
less than their respective Reimbursable Interim Costs Limitation shall reimburse such Party all
amounts necessary to reduce that Party's total portion of the Reimbursable Interim Costs to its
respective Reimbursable Interim Costs Limitation. If, at the time of calculation, the total of the
Reimbursable Interim Costs expended are less than $20,500,000, then each Party shall be
reimbursed in proportion to the percentage that its respective Reimbursable Interim Costs
Limitation bears to $20,500,000. (By way of example, if through the date of termination (and
that date is after June 1, 2009), $5,125,000 in Reiinbursable Interim Costs were expended, and
the County had spent $2,000,000, the City had spent $900,000, and the Stadium Developer spent
$2,225,000, then the Stadium Developer would reimburse the County $250,000 and reimburse
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the City $25,000, such that all Parties would end up with a final contributions of $2,500,000 by
the Stadium Developer, $1,750,000 by the County and $875,000 by the City.)
11. 1.2 This Agreement shall terminate upon written notice from any Party to the other
Parties if, at any time prior to Substantial Completion of the Baseball Stadium Work, a court of
competent jurisdiction has issued a final and unappealable order that (a) invalidates the issuance
of the County Bonds or City Bonds or bonds issued by the City to fund the construction of the
Parking Facilities, (b) precludes or prohibits the use of County and/or City funds in connection
with the construction of the Baseball Stadium or the Parking Facilities, (c) prohibits or materially
impairs or restricts the right of the Team to use the Baseball Stadium for MLB Home Games or
the Operator to operate the Baseball Stadium except if such arises due to the wrongful act or
omission of a Team Affiliate or from a Team Affiliate's default under any agreements to which it
is a party, or (d) prohibits or materially restricts the construction of the Baseball Stadium,
provided that each Party has used reasonable best efforts to modify this Agreement and any other
Stadium Agreements (as necessary) in order to bring this Agreement and the other Stadium
Agreements into compliance with the law, as set forth in the above -referenced final unappealable
order, for a period of not less than ninety (90) days. If this Agreement terminates under this
Section 11.1.2, each Party shall be responsible for a share of Stadium Project Costs, Public
Infrastructure Costs, and costs for the development and construction of the Parking Facilities
expended through the date of termination in proportion to their funding commitments under this
Agreement and the City Parking Agreement. If this Agreement terminates under this Section
11.1.2, each of the other Stadium Agreements shall, on the effective date of such termination,
terminate with respect to all future rights and obligations of performance by the Parties and their
Affiliates (except for the rights and obligations that expressly are to survive termination as
provided in the Stadium Agreements). Termination of this Agreement under this Section 11.1.2
shall not alter the claims, if any, of the Parties for breaches of this Agreement occurring prior to
such termination, and the obligations of the Parties with respect to such breaches shall survive
termination (including those giving rise to such termination).
11.1.3 This Agreement shall terminate if the Operating Agreement is terminated in
accordance with its terms.
11.1.4 Any Party's Default under Section 10.1(b) or 10.2(b) that arises from its failure to
fund any amounts due under Articles VI or VII shall entitle each of the non -Defaulting Parties to
terminate this Agreement following written notice of the Default (from one of the non -
Defaulting Parties) and the Defaulting Party's failure to cure such Default within one hundred
and eighty (180) days. This provision shall not restrict any Party's right to pursue the remedies
set forth in Section 10.3 of this Agreement or to pursue any other available remedy at law or in
equity.
11.2 Effect of Termination. Upon the termination of this Agreement pursuant to
Section 8.3(d), any provisions of this Article XI or any other termination rights under this
Agreement, no Party shall have any further liability or obligation to any other Party except as
expressly set forth in this Agreement; provided that no Party shall be relieved of any liability for
breach of this Agreement related to events or obligations arising prior to such termination.
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ARTICLE XII
INDEMNIFICATION
12.1 Indemnification by Stadium Developer. To the maximum extent permitted by
State law, the Stadium Developer shall indemnify, defend and hold harmless each Government
Party, and its officers, employees, attorneys, agents and instrumentalities from and against any
claim, loss, damage, liability, cost or expense, including reasonable attorneys' fees, directly
arising out of (a) any breach, default or misrepresentation by the Stadium Developer under this
Agreement or (b) any personal or bodily injury, including death, to any person and destruction of
property resulting from the negligent performance (or failure to perform) by the Stadium
Developer of the Work; provided, however, that the foregoing indemnification shall not extend
to those claims, losses, damages, liabilities, costs or expenses asserted against or suffered by a
Government Party (or its officers or employees) which are due to the negligent acts or omissions
of the Government Party (or its officers or employees), or to any action taken by the Government
Party in violation of this Agreement or any action not taken that is required under this
Agreement. Notwithstanding the foregoing, the Stadium Developer shall not be liable for any
liabilities, damages, suits, claims and judgments of any nature (including reasonable attorneys'
fees and expenses) arising from or in connection with any loss or liability due to a Force
Majeure.
12.2 Indemnification by the Government Parties.
12.2.1 County Indemnification. The County does hereby agree to indemnify and hold
harmless the Stadium Developer and the Team Affiliates ("Developer 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. However, nothing herein shall be deemed to indemnify the Developer Indemnitees
from any liability or claim arising out of the negligent performance or failure of performance of
the Stadium Developer or its employees, agents, servants, partners, principals or subcontractors,
or the Team, the Team Affiliates, the City or any unrelated third party. The Stadium Developer
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 Developer Indemnitees as herein provided. Notwithstanding the
foregoing, the County shall not be liable for any liabilities, damages, suits, claims and judgments
of any nature (including reasonable attorneys' fees and expenses) arising from or in connection
with any loss or liability due to a Force Majeure.
12.2.2 City Indemnification. The City does hereby agree to indemnify and hold
harmless the Developer 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
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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. However, nothing herein shall be deemed
to indemnify the Developer Indemnitees from any liability or claim arising out of the negligent
performance or failure of performance of the Stadium Developer or its employees, agents,
servants, partners, principals or subcontractors, or the Team, the Team Affiliates, the County or
any unrelated third party. The Stadium Developer expressly understands and agrees that any
insurance protection required by this Agreement or otherwise provided by the City shall in no
way limit the responsibility to indemnify, keep and save harmless and defend the Developer
Indemnitees as herein provided. Notwithstanding the foregoing, the City shall not be liable for
any liabilities, damages, suits, claims and judgments of any nature (including reasonable
attorneys' fees and expenses) arising from or in connection with any loss or liability due to a
Force Majeure.
12.3 Indemnification Procedures.
(a) If any Person entitled to indemnification pursuant to this Article XII (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 XII, or shall receive notice of any
action or proceeding of any matter for which indemnification may be claimed (each, a "Claim"),
the Indemnified Party 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 Party 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 Party 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.
(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 Party. If
within twenty (20) days following such notice from the Indemnified Party, the Indemnified Party
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 Party shall be entitled to indemnification
thereof as provided in this Article XII. 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
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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 Party in so cooperating.
(c) The Indemnitor shall pay to the Indemnified Party in cash all amounts to
which the Indemnified Party may become entitled by reason of the provisions of this Article XII,
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 Party 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 Party 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.
12.5 Survival. The obligations contained in this Article XII 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 XII and
which such event occurs prior to such expiration or termination.
12.6 Interpretation. To the extent these indemnification clauses or any other
indemnification clause in this Agreement do not comply with Chapter 725, Florida Statutes, as
maybe amended, these provisions shall hereby be interpreted as the Parties' intention to provide
the maximum indemnification allowed by Chapter 725, Florida Statutes, as may be amended.
ARTICLE XIII
PARTY REPRESENTATIVES
13.1 Designation of County and City Representatives. The County Mayor or his
designee (the "County Representative") shall act as liaison and contact person between the
Stadium Developer and the County in administering and implementing the terms of this
Agreement. The City Manager or his designee (the "City Representative" and, together with the
County Representative, the "Government Representatives") shall act as liaison. and contact
person between the Stadium Developer and the City in administering and implementing the
terms of this Agreement. The County Mayor and the City Manager shall notify the other Parties
in writing if they designate or redesignate 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, except as
otherwise specifically provided in this Agreement, and so long as such actions or approvals do
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not cause an increase to such Government Party's budgeted contributions under this Agreement
or are to be paid from a previously identified and approved allowance fund for such Government
Party, to:
(a) review, approve and consent, in writing, to documents, plans, applications,
and requests required or allowed by the Stadium Developer to be submitted to the Government
Representative(s), the County and/or the City, as the case may be, pursuant to this Agreement,
including the Design Documents and forms of the Architect Contract or Construction
Management Contract;
(b) consent to and approve, in writing, actions, events and undertakings by the
Stadium Developer or other Persons for which consent and/or approval is required from the
Government Representatives(s), the County and/or the City, as the case may be, under this
Agreement;
(c) make appointments of individuals or entities required to be appointed or
designated by the Government Representative(s), the County and/or the City, as the case may be,
in this Agreement;
(d) 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 in a
timely manner; and
(e) grant written extensions of time that extend deadlines or time periods by
up to 120 days and that do not otherwise materially affect the rights or obligations of the Stadium
Developer or Team Affiliate, the County or the City, as the case may be, under this Agreement.
Any consent, approval, decision, or determination under this Agreement by the County
Representative or the City Representative shall be binding on the County and the City,
respectively. The Stadium Developer 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 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.
13.2 Designation of Stadium Developer Representative. Claude Delorne or his
designee (the "Stadium Developer Representative") shall act as liaison and contact person
between the Stadium Developer, 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 Stadium Developer
Representative shall have the power, authority and right, on behalf of the Stadium Developer,
and without any further resolution or action of the Stadium Developer, except as otherwise
specifically provided in this Agreement to:
(a) review, approve and consent to documents, plans, applications, 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 Developer pursuant to this Agreement,
including Design Documents and forms of the Architect Contract or Construction Management
Contract;
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(b) consent to and approve actions, events and undertakings by the
Government Representative(s), the County and/or the City, as the case may be, or other Persons
for which consent and/or approval is required from the Stadium Developer under this
Agreement;
(c) make appointments of individuals or entities required to be appointed or
designated by the Stadium Developer in this Agreement; and
(d) sign any and all documents on behalf of the Stadium Developer necessary
or convenient to the foregoing approvals, consents and appointments in a timely manner.
Any consent, approval, decision, determination, waiver or amendment under this Agreement by
the Stadium Developer Representative shall be binding on the Stadium Developer. The
Government Parties and any other Person dealing with the Stadium Developer 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 Developer Representative to act for and
bind the Stadium Developer in any such matter. The Stadium Developer shall cause the Stadium
Developer Representative to comply with all of the provisions of this Agreement.
ARTICLE XIV
ARBITRATION
14.1 Arbitration. Any dispute or controversy among the Parties or their Affiliates
arising under or with respect to this Agreement for claims and counter -claims not exceeding the
aggregate amount of Five Million Dollars ($5,000,000) 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"). Any
dispute regarding real estate development or construction matters shall be governed by the
Complex Construction Arbitration Rules then in effect, and any dispute regarding other matters
shall be governed by the Commercial Arbitration Rules then in effect. 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 14.1 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 one-third each by the Stadium Developer, the County and the City.
14.2 Expedited ADR. Disputes or deadlocks among any of the Parties arising under or
with respect to the Architect Agreement, Construction Management Contract, the approval of the
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Design Documents or other Baseball Stadium design approval issues, Public Infrastructure
Approval Process, Construction -related issues, or any other provisions of this Agreement where
Expedited ADR is required (each, an "Expedited ADR Dispute"), shall be submitted to expedited
alternative dispute resolution ("Expedited ADR") under this Section 14.2. 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.
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 14.2. 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 Party'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 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.
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 14.2, 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 Applicable
Laws. Each Party shall bear its own attorneys' fees and costs relating to the Expedited ADR, but
the fees and costs of the Neutral shall be borne equally by the Parties to the Expedited ADR.
ARTICLE XV
MISCELLANEOUS
15.1 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),
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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, with the copies
indicated, 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 1St Street, Suite 2900
Miami, Florida 33128
Attn: George M. Burgess
With a copy to: County Attorney
111 NW 1" Street, Suite 2810
Miami, Florida 33128
Attn: Robert A. Cuevas, Jr.
and Geri Bonzon-Keenan
If to the City:
To the attention of. City Mana er
444 SW 2" Avenue, l Otte Floor
Miami, Florida 33130
Attn: Pedro G. Hernandez
With a copy to: City Attorney
444 SW 2„ d Avenue, 9th Floor
Miami, Florida 33130
Attn: Julie O. Bru and Olga Ramirez-Seijas
If to the Stadium Developer:
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 Developer and the Government Representatives or the
Project Coordination Team may be given (and shall be considered given when provided) by any
of the means set forth above, and to the address provided by any of the latter parties to the
Stadium Developer from time to time.
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15.2 Merger 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 (but not including the Architect Contract and the Construction Management Contract which
do include certain understandings of the Parties, as specifically set forth in this Agreement).
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.
15.3 Amendment. This Agreement may not be amended or modified except in a
writing signed and duly executed by the Parties.
15.4 Binding Effect. This Agreement shall be binding upon the Parties and their
respective successors and assigns, subject to the limitations on Transfer stated herein.
15.5 Waiver. Waiver by any Party of any breach of any provision of this Agreement
shall not be considered as or constitute a continuing waiver or a waiver of any other breach of the
same or any other provision of this Agreement. Any waiver must be in writing and signed by all
Parties whose interests are being waived.
15.6 Nonrecourse Liability of Stadium Developer 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 Developer, the Team and their Affiliates (the
"Stadium Developer 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 Developer 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 Developer Personnel other than the Team strictly in accordance with the Assurance
Agreement; and the liability of the Stadium Developer under this Agreement shall be limited to
the assets of the Stadium Developer and to any guarantee delivered in connection with this
Agreement, strictly in accordance with the terms of any such guarantee(s). The limitations of
this Section 15.6 shall in no way limit the County's or City's rights as provided in this
Agreement (a) to specific performance of each and every provision of this Agreement or in any
other instrument or document executed in connection with this Agreement (provided that specific
performance shall in no event require the partners, members or shareholders of the Team or their
Affiliates to make additional capital contributions), (b) to recover damages against the Stadium
Developer for any breaches of this Agreement (provided that collection of damages is subject to
the restrictions of this provision), or (c) to enforce remedies against all assets of the Stadium
Developer; nor shall this Section 15.6 in any way limit the rights of the County and the City
against the Team under the Assurance Agreement.
15.7 Non -Recourse Liability of County Personnel. Notwithstanding and prevailing
over any contrary provision or implication in this Agreement or in any other instrument or
75
document executed in connection with this Agreement, except for their criminal acts with respect
to this Agreement (i.e., acts which would constitute crimes were they prosecuted for and
convicted of such acts), no member, elected or appointed official, officer, employee, agent,
independent contractor or consultant of the County ("County Personnel") shall be liable for any
of the County's obligations under this Agreement or any instrument or document executed in
connection with this Agreement. Except for their criminal acts with respect to this Agreement
(i.e., acts which would constitute crimes were they prosecuted for and convicted of such acts), no
County Personnel shall be liable to the Stadium Developer, or any successor in interest to the
Stadium Developer, for any amount which may become due to the Stadium Developer or any
successor in interest to the Stadium Developer, or for any other obligation, under the terms of
this Agreement. The limitations of this Section 15.7 shall in no way limit the Stadium
Developer's rights as provided in this Agreement (a) to specific performance of each and every
provision of this Agreement or in any other instrument or document executed in connection with
this Agreement, (b) to recover damages against the County for any breaches of this Agreement
(provided that collection of damages is subject to the restrictions of this provision), or (c) to
enforce remedies against the County.
15.8 Non -Recourse Liability of City Personnel. Notwithstanding and prevailing over
any contrary provision or implication in this Agreement or in any other instrument or document
executed in connection with this Agreement, except for their criminal acts with respect to this
Agreement (i.e., acts which would constitute crimes were they prosecuted for and convicted of
such acts), no member, elected or appointed official, officer, employee, agent, independent
contractor or consultant of the City ("City Personnel") shall be liable for any of the City's
obligations under this Agreement or any instrument or document executed in connection with
this Agreement. Except for their criminal acts with respect to this Agreement (i.e., acts which
would constitute crimes were they prosecuted for and convicted of such acts), no City Personnel
shall be liable to the Stadium Developer, or any successor in interest to the Stadium Developer,
for any amount which may become due to the Stadium Developer or any successor in interest to
the Stadium Developer, or for any other obligation, under the terms of this Agreement. The
limitations of this Section 15.8 shall in no way limit the Stadium Developer's rights as provided
in this Agreement (a) to specific performance of each and every provision of this Agreement or
in any other instrument or document executed in connection with this Agreement, (b) to recover
damages against the City for any breaches of this Agreement (provided that collection of
damages is subject to the restrictions of this provision), or (c) to enforce remedies against the
City.
15.9 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 statute 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, but
subject to the limitations in, Article XII. The preceding limitation shall not be a basis for any
claim or argument that a dispute should not be arbitrated. The provision shall survive the
expiration or earlier termination of this Agreement.
15.10 Assignment.
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(a) The Stadium Developer shall not sell, assign, convey, transfer, pledge,
encumber 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
Government Representatives; provided, however, that the Stadium Developer may, without the
prior written consent of the Government Representatives:
(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) the Stadium Developer or Team notifies the Government Representatives in
writing concurrently with the proposed Transfer, which notice shall state the nature of the
Transfer, identify the transferee and provide the County with evidence reasonably satisfactory to
the County that the proposed Transfer has been approved by Major League Baseball, (B) such
transferee executes and delivers to the Government Representatives its agreement, in form and
substance reasonably satisfactory to the Government Representatives, to assume all of the
obligations of the Stadium Developer under this Agreement and to keep and perform all
provisions of this Agreement, (C) such transferee or its Affiliate that acquires the Team's Major
League Baseball franchise assumes all obligations of the Team under the Assurance Agreement,
and (D) such transferee or its Affiliates assume all of the other obligations of the Stadium
Developer and its Affiliates under the other Stadium Agreements;
(ii) Transfer any or all of its rights hereunder to one or more Affiliates
of the Stadium Developer, provided that any such Transfer shall not affect the obligations of the
Team (or it permitted successors or assigns) under the Assurance Agreement; and
(iii) pledge or collaterally assign any or all of its rights hereunder to
any provider, guarantor or insurer of financing to the Stadium Developer or its Affiliates in
accordance with Section 14.8 of the Operating Agreement.
(b) The Stadium Developer shall be relieved of its obligations under this
Agreement from and after the date of a Transfer pursuant to Section 15.10(a)(i) or 15.10.(a)(ii)
above.
(c) The City and County shall not Transfer this Agreement or any of their
rights hereunder, and the County shall not Transfer its ownership of the Baseball Stadium or
Baseball Stadium Site, without the prior written consent of the Stadium Developer.
(d) Any Transfer or attempted Transfer by a Party in violation of this Section
15.10 shall be void.
15.11 Government Cooperation. Within five (5) Business Days after receipt of written
notice from the Stadium Developer and, subject to any limitations of its authority under
Applicable Laws and subject to the provisions of this Agreement, each Government Party shall
consent to, execute and deliver to the Stadium Developer any suitable applications or evidence of
the Stadium Developer's authority required by any governmental or other body claiming
jurisdiction in connection with any construction which the Stadium Developer may do in
accordance with this Agreement.
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15.12 Consent of Parties. Whenever in this Agreement the consent or approval of a
Party is required, such consent or approval:
(a) shall be made in the case of the County by the County Representative on
behalf of the County to the extent this Agreement does not specify otherwise, except for
approvals or consents specifically requiring Board approval or consent under (i) this Agreement,
(ii) any other Stadium Agreement or (iii) pursuant to Applicable Law;
(b) shall be made in the case of the City by the City Representative on behalf
of the City to the extent this Agreement does not specify otherwise, except for approvals or
consents specifically requiring Commission approval or consent under (i) this Agreement, (ii)
any other Stadium Agreement or (iii) pursuant to Applicable Law;
(c) shall not be unreasonably or arbitrarily withheld, conditioned or delayed
unless specifically provided to the contrary in this Agreement;
(d) shall not be effective unless it is in writing; and
(e) shall apply only to the specific act or transaction so approved or consented
to and shall not relieve the other Parties of the obligation of obtaining the consenting Party's
prior written consent or approval to any future similar act or transaction.
15.13 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.
15.14 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
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.
15.15 Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under Applicable Laws, but if any
provision of this Agreement is held to be prohibited by or invalid under Applicable Laws, the
Parties shall, to the extent possible, negotiate a revised provision which (a) complies with
Applicable Laws, (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.
15.16 Absence of Third-Party Beneficiaries. 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 this Agreement to maintain an action pursuant to or based upon this
Agreement.
15.17 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. In the event
that the County or City enacts an Applicable Law that amends or alters (or purports to amend or
alter) the terms of this Agreement, the Team Affiliates reserve all rights, and by entering into this
Agreement do not waive any rights, to assert a breach of this Agreement and to contest the
validity, enforceability or applicability of such Applicable Law, including on the basis that such
Applicable Law is discriminatory, retroactive or would serve to amend or alter the terms of this
Agreement.
15.18 Time of Essence. Time is of the essence with respect to the performance of each
of the covenants and obligations contained in this Agreement.
15.19 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 Parties or their employees,
officials, agents, independent contractors, licensees and invitees. The Stadium Developer is an
independent contractor of the County and the City.
15.20 Antidiscrimination Clause. In accordance with Applicable Laws, 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.
15.21 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 witl-dlolding 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
79
(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.
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 Plamiing 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.
15.22 Force Majeure. If any Party shall be delayed in the performance of any obligation
hereunder as a result of a Force Majcurc, 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)), 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. The Parties agree that an event of Force Majeure shall
not serve as an excuse to any Party's failure to deposit funds as required under Sections 6.2, 6.3,
6.4 and 6.7.
15.23 Major League Baseball Requirements. Notwithstanding any other provision of
this Agreement, except for the last sentence in this Section, the obligations of the Stadium
Developer 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 County and the City 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 Developer to comply with Baseball
Rules and Regulations materially affects the rights of the County or City under this Agreement
or deprives the County or City 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
Developer agrees in any event that if compliance by it with Baseball Rules and Regulations
results in a failure of the Stadium Developer to fulfill its obligations under this Agreement, the
County and the City may enforce remedies for the Stadium Developer's failure to fulfill its
obligations as provided in this Agreement and the other Stadium Agreements, including
specifically the right to seek an injunction or similar relief against the Team to enforce the
provisions of the Non -Relocation Agreement.
L' 1
15.24 Inspector General and Independent Private Sector Inspector General.
(a) Office of Inspector General. 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, which has the authority and power to investigate County affairs and review
past, present and proposed County programs, accounts, projects, contracts and transactions.
(b) Independent Private Sector Inspector General. Pursuant to Board
Resolution No. R-516-96 and Administrative Order 3-20, the County may authorize, retain and
coordinate the services of an independent private sector inspector general ("IPSIG") for
construction, capital development, procurement, retail, concession, lease and management
agreements and/or contracts and other agreements exceeding $1 million. The County has, at its
expense, appointed the Inspector General as its IPSIG for the Baseball Stadium Project. The
IPSIG may audit, investigate, monitor, oversee, inspect and review the operations, activities and
performance of the Stadium Developer, the City and the County in connection with project
design and construction matters under this Agreement. The scope of services performed by the
IPSIG may include, but are not limited to, monitoring and investigating compliance with contract
specifications; project costs; and investigating and preventing corruption and fraud.
The IPSIG may perform its services at all levels of the construction contracting
and procurement process under this Agreement, including but not limited to, project design,
establishment of bid specifications, bid submittals, activities of the City, the Stadium Developer
and their officers, agents and employees, lobbyists, City and County staff and elected officials.
Upon fifteen (15) days' written notice to the City or the Stadium Developer from the IPSIG, the
City or the Stadium Developer shall make all requested non-proprietary project -related records
and documents available to the IPSIG for inspection and copying.
The IPSIG shall have the right to examine all documents and records in the City's
or Stadium Developer's possession, custody or control which, in the IPSIG's reasonable
judgment, pertain to the project design and performance of construction matters under this
Agreement, including but not limited to, original estimate files; Change Order estimate files;
worksheets; proposals and agreements from and with subcontractors and suppliers; all project -
related correspondence, memoranda, instructions, financial documents, construction documents,
bid and contract documents; back -charge documents; documents and records which involve cash,
trade or volume discounts, insurance proceeds, rebates, or dividends received; payroll and
personnel records; and supporting documentation for the aforesaid documents and records.
The provisions in this Section shall apply to the City, the Stadium Developer and
their officers, agents and employees. The City and the Stadium Developer shall incorporate the
provisions in this Section in all subcontracts executed by the City or Stadium Developer in
connection with the performance of this Agreement.
Nothing in this Section shall impair any independent right the Stadium Developer may grant to
the County to conduct audit or investigative activities. The provisions in this Section are neither
intended nor shall they be construed to impose any liability on the County by the City, the
Stadium Developer or third parties.
:I
15.25 Valid Agreement. Each Government Party agrees for the benefit of the Stadium
Developer that the Stadium Developer 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 such Government Party including damages from any third party claims arising
from a breach of this Agreement by a Government Party.
15.26 County Approvals. The County Representative's approval of the Design
Development Documents and the Construction Documents and any other documents pursuant to
this Agreement shall not relieve the Stadium Developer of its obligations under law to file such
plans with any department of the City or any other governmental authority having jurisdiction
over the issuance of building or other permits and to take such steps as are necessary to obtain
issuance of such permits. The Stadium Developer acknowledges that any approval given by the
County Representative pursuant to this Agreement shall not constitute an opinion or agreement
by the County that the plans are structurally sufficient or such plans and any other documents are
in compliance with any laws, ordinances, codes or other applicable regulations, and no such
approval shall impose any liability upon the County.
15.27 Books and Records; Audit. The Stadium Developer shall keep and maintain all
books, records and documents of all kinds in any way related to the Stadium Developer's rights
and obligations under this Agreement separate and identifiable from its other books, records, and
documents. The County shall have the right to audit the books of the Stadium Developer relating
to the planning, design, development and construction of the Baseball Stadium. The attention of
the Parties is hereby directed to Section 2-481 of the County Code. The Outreach Administrator
shall have the right to audit the books, records and documents of the Stadium Developer relating
to the hiring and work of CSBEs, SBEs, workers pursuant to the CWP, and to the Construction
Outreach Program. The Stadium Developer shall provide in the Construction Management
Agreement that the Construction Manager and its subcontractors shall also keep and maintain all
books, records, and documents of all kinds related to their obligations under the Construction
Management Agreement and any related subcontracts and that the Outreach Administrator shall
have the right to audit the Construction Manager's and subcontractor's books.
15.28 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.
:IJ
CITY OF MIAMI, FLORIDA
By:
Pedro G. Hernandez
City Manager
City of Miami
ATTEST:
By:
City Clerk
Approved as to Insurance Requirements:
By:
LeeAnn Brehm, Director
Risk Management
APPROVED AS TO FORM
AND CORRECTNESS:
City Attorney
MIAMI-DADE COUNTY, FLORIDA
George M. Burgess
County Manager
Miami -Dade County
ATTEST:
Clerk of the Board
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY:
MARLINS STADIUM DEVELOPER, LLC
By:_
Name:
Title:
County Attorney
Fxhihit List
Exhibit A — Baseball Stadium Site
Exhibit B — Entire Site
Exhibit C — Permitted Exceptions
Exhibit D — Project Program Statement
Exhibit E — Form of Warranty Deed
Exhibits F- Not Used
Exhibit G — Public Infrastructure Budget and Description of the Public Infrastructure
Exhibit H -Master Project Budget
Exhibit I — Draw Down Schedule for the Stadium Project
Exhibit I-1 — Schedule of Eligible Reimbursable Expenses
Exhibit J — Procurement Program
Exhibit K — Sources of Funds for the Stadium Project
Exhibit L — Funding Request
Exhibit M —Affidavit
Exhibit N — Preliminary Milestones Schedule
Exhibit O — Key Provisions of the Construction Management Contract
Exhibit P — Map of City of Miami's Neighborhood Development Zones
I A M I B A L L P A R
K
6
NORTH
21 JANUARY 2009
BASEBALL STADIUM SITE, PARKING FACILITIES
MORWAMARIM
(ITYMN11011
MWO - OADE COUNTY
'0A
B A L
L P A R K
0
NORTH
21 JANUARY 2009
ENTIRE SITE
RUM MWNS
EXHIBIT C
PERMITTED EXCEPTIONS SCHEDULE
The lien of pro -rated taxes for the year 2009 and thereafter.
2. All matters as set forth on that certain survey dated February 15, 2008 by Fortin
Leavy, Skiles, Inc. under Project Number 080111, Dwg number 2008-020.
3. All matters contained on the Plat of New Orange Bowl Subdivision, as recorded
in Plat Book 153, Page 72 of the Public Records of Miami -Dade County, Florida.
(As to Parcel 1)
4. Reservations in favor of the State of Florida, as set forth in the deed from Trustee
to the Internal Improvement Fund of the State of Florida, recorded in Deed Book
2465, Page 164 of the Public Records of Miami -Dade County, Florida. (As to
Parcel 1 and 11)
5. Unity of Title recorded in O.R. Book 17793, Page 1500 of the Public Records of
Miami -Dade County, Florida. (As to Parcel 1, 2 and 10)
6. All matters contained on the Plat of Lawrence Estate Land Co's Subdivision, as
recorded in Plat Book 2, Page 46 of the Public Records of Miami -Dade County,
Florida. (As to Parcel 2, 3, 4, 5, 7, 8, 9 and 10)
7. All matters contained on the Plat of Revision of Montray, as recorded in Plat
Book 8, Page 1 of the Public Records of Miami -Dade County, Florida. (As to
Parcel 6) — To Be Deleted Upon Recordation of Replat
{M2777025;2}
CAA — Exhibit D
Project Program Statement
BALLPARK SYSTEMS GENERAL DESCRIPTION
FOODSERVICES and CONCESSIONS
Foodservices and concessions systems are designed to facilitate access for all spectators in the ballpark.
Service functions (main kitchen, commissary, staff lockers, offices, check-in, vault) for the foodservices
are expected to be located on the service and mezzanine levels with cooking kitchens and pantries
dispersed as necessary throughout the stadium to support foodservice delivery.
Concession Stands will be located at all public concourses, distributed to be convenient to all spectators.
Currently 50% of the concession stands are planned to be 'cooking' stands with grease exhaust
provisions. In addition to the concession stands, a Taste of Miami Food Court is planned for the Main
Concourse near left field which may also contain a sports bar. POS locations will be provided at an
average ratio of 1/200 fans throughout the ballpark.
Foodservice operations at the Club Level will include concession stands with specialty food offerings in
stands with upgraded finisha A cooking kitchen will be located at the Club Level to support suites, party
rooms and any catering functions held at Club or Suite Level. Founders Suites and Luxury Suites will
typically include a buffet counter, serving pre -ordered food and beverages provided from the Club Level
Kitchen. Pantries located on the Suite and Club levels will support the foodservice operations to the
suites.
Service Level Specialty Foodservice operations will include two Dugout Lounges and the Batters Box
Club. The Batters Box Club will include a kitchen, a dining area with buffet/chef's table, serving stations,
room for snack items, a small bar and a grill line for Batters Box seatholders. The Dugout Lounges will
include a bar area with high -top tables and chairs, a pre -game buffet table and a limited food service
menu during the game for Dugout Club and Field Box seatholders.
SOUND SYSTEM:
Seating Bowl
The ballpark is planned to include a distributed seating bowl loudspeaker system. A distributed sound
system configuration locates numerous loudspeaker cabinets around the seating bowl by attaching them
to available building structural elements such as seating deck fascias and the canopy. This style of sound
system is similar in configuration to the sound systems Installed at all recently constructed baseball
facilities (e.g. San Diego, St. Louis, DC, Pittsburgh and Philadelphia, as well as the under -construction
ballparks in New York.)
Main Concourse
A sound system will be provided in the following distinct "zones" of the concourse:
• Sound systems located in the vicinity of concession and novelty areas (areas where people are
waiting in line)
• Within public and family toilet rooms
Stadium Systems General Description
Page - 1
CAA — Exhibit D
Project Program Statement
Each of these zones will typically play the general ballpark PA, but the audio system operator will be able
to substitute any other ballpark program as required from controls in the audio control room. In areas
where the concourse is not (:.pen to the seating, it is common for the radio play-by-play to be heard once
the game begins.
Suites
Dedicated speakers linked to the seating bowl's sound system will serve exterior suite seating. These
speakers will always play the same program as the rest of the seating bowl speakers.
The interior of the suites are to be provided sound via the interior TV set internal speakers. All sound is
received over the suite television speakers. There are a number of "channels" that are dedicated for in-
house video and audio. Examples of the channels would be:
• Event broadcast video with event broadcast audio.
• Event broadcast video with radio -play-by-play
• Event broadcast video with press -box announcer
MECHANICAL (HVAC)
The main seating bowl shall be conditioned as follows:
The ballpark HVAC system is designed to maintain a temperature 78°F (+/- 3°F) from field level through
seating at Club Level, Cooling of the bowl seating area shall be by HVAC loop ducts along each level
supplying air to the seating areas. Exhaust fans along the roof shall relieve the upper bowl of heat. Make
up air shall be provided by the bowl air handlers. The total peak cooling load is estimated to be
approximately 6300 tons for .he ballpark based on the preliminary program which includes a three hour
"pull down" period.
Air Delivery Systems:
Seating Bowl Air Delivery System:
The air. delivery system plan for the seating bowl is to use multiple, single zone supply/return units with
chilled water cooling coils for cooling and dehumidification, Temperature control will be provided by
utilizing multiple banks of chilled water cooling coils each with separate temperature control valves which
are modulated in sequence to maintain cooling coil discharge temperature. Outside air is cooled and
dehumidified through part of the coil bank before mixing with return air from the seating bowl.
Main and Upper Concourse Delivery system:
The main and upper concourses will be conditioned using chilled water fan coil units, located at
approximately every bay, that can be operated with the roof in the open or closed position. These fan coil
units will generally be located above the concession stands and utilize short sections of supply and return
air ductwork connected to supply registers and return grilles. Discharge air temperature will be maintained
above dew point temperature to prevent condensation formation.
Suite Level Air Delivery Systems:
The Suite Level Is completely enclosed and served by blower coils. These units will provide air
conditioning throughout the enclosed space. All toilet rooms on the Suite levels will be fully air-
conditioned and exhausted. Each suite shall be served by a chilled water fan coil unit with its own
thermostat for comfort control.
Stadium Systems General Description
Page - 2
CAA — Exhibit D
Project Program Statement
Club Level Air Delivery Systems:
The Club Level is open and is "spot cooled" by fan coil units above each concession roof and toilet room
roof. All toilet rooms on the Club level will be fully air-conditioned and exhausted. Each suite shall be
served by a chilled water fan coil unit with its own thermostat for comfort control.
SECURITY SYSTEM
The security system shall incorporate hardware and software specifically designed to support multi -
systems, multi -users, multi i ,sking point monitoring and system administration and operation. The
systems shall be interfaced to the facility LAN using Ethernet based technology.
System components shall be provided as necessary and include the following major components:
• Security Server
• PC Workstations with flat panel monitors at primary Security Command Center, Game Day
Command Center, Event Staff Check-in, Office Entrance, Ticket Office windows, Team Store and
other storefront retail areas and Administrative/Operations/Security /Concessions Offices.
• Photo Badge/Key Card Printer (Color Laser) and Camera
• Security Controllers as necessary
• Proximity/Smart Card Readers and Combination Proximity/Smart Card Readers with Biometric
Readers
• Card Key/Photo Badges
• Intrusion Detection Devices (Motion and Glass Break)
• Door Status Monitor Zones
• Duress Buttons (Panic Alarms)
• Network Video Recorders (NVR) and Video Archive/Storage
• Video Low Light Color Surveillance Fixed and Pan -Tilt -Zoom (PTZ) Cameras with Dome
Enclosures
• Flat Panel LCD Color Video Monitors mounted in Security Console for continuous live camera
sequencing and matrix viewing.
• Flat Panel (Plasma or LCD) Color Video Monitors mounted in Security Console for event call-up
and playback.
SCOREBOARD and VIDEO DISPLAYS
The Ballpark Scoreboard and Video Displays will utilize current technology to provide an enhanced fan
experience. The information, scoring and entertainment elements that are expected to be part of the
display complement are as follows:
• Main Display - HD16 Video (HD Ready)
• Ribbon Board - 23 mm Ribbon Board
• Pitcher Board - 23mm Display
• Outfield Board - 23mm Display
• Open Caption - 23mm Display
• Control System: Venus, Vink & Rack System
• HD Video Replay System
• Video Coaching System
Stadium Systems General Description
Page - 3
CAA — Exhibit D
Project Program Statement
ELECTRICAL
Main Utility Service
The ballpark utility service will consist of three underground non -dedicated circuit feeders from Florida
Power & Light (FPL) to serve the ballpark's power needs. The feeders, provided by FPL, will be routed
from the Latin Quarter substation. The Secondary Service being considered is as follows:
FPL will provide all conduits, manholes and 13.2 KV feeders from the substation to the ballpark property
line. The ballpark contractor shall install manholes and 5" conduits encased in concrete from property line
to main service switchgear and to all transformer vaults. FPL will furnish all 5" conduits, feeders,
manholes, service transformers and main service switchgear. The FPL 480/277V service transformers will
be located in four 3 -hour rated transformer vaults. An additional 4160V service will be provided for the
chiller plant. Secondary feeders will be provided via bus duct provided by the contractor.
Secondary Distribution (600 volt and less)
Secondary distribution will include 4000 amp service switchboards and shall be 480Y1277V indoor
switchboards which will feed the electrical risers. The risers will distribute power to lighting, receptacles,
mechanical equipment and ,;�)ncessionaire loads located on each of the levels. Secondary distribution will
include all distribution switchboards, step-down transformers and panel boards as required to serve the
loads in the ballpark.
EMERGENCY POWER SYSTEM
Emergency Power System
The Emergency Power system for the ballpark consists of two generator sets, totaling 3000 kW capacity,
each complete with control panel, batteries, jacket heaters, sound attenuation, weather proof enclosure
and skid mounted fuel tank sized for 8 -hours of run time at full capacity. The generator sets will feed all
emergency and standby loads required by code, and life safety systems.
LIGHTING SYSTEM
Lighting
All interior areas of the ballpark will be provided with a lighting system that maintains illumination levels
recommended by IES/ASHRAE. All light fixtures will be commercial quality grade fixtures. The lighting
system will be complete with panel boards, feeders, branch circuits, and controls. Circuiting will generally
be 277 volts for HID and fluorescent lighting and 120 volt for incandescent and quartz lighting.
Fluorescent fixtures will generally incorporate electronic energy efficient ballasts, color temperature of
3000K and T8 lamps. Lenses/louvers will be provided where necessary.
Exit signs will be provided along all paths of egress exits. Exit signs shall be no further than 100 feet apart
in any egress corridor or pat' An exit sign shall be provided at every egress door and stairway. 50% of
all metal halide fixtures shall nave a quartz re -strike with time delay for emergency egress lighting.
Lighting Controls:
All lighting shall be controlled by a network lighting control system with a built-in time clock and local
overrides. The lighting control system shall be a stand alone low voltage system, which is specifically
designed for controlling lighting in a baseball stadium and interfacing with building automation system to
control designated zones.
Stadium Systems General Description
Page - 4
CAA — Exhibit D
Project Program Statement
COMMUNICATIONS INFRASTRUCTURE
The communications infras+rIucture system shall support voice and data applications/systems operated
over a multi -media cabling plant including fiber optics and twisted pair copper. This communications
infrastructure shall be supported by dedicated communication rooms and raceways. Communications
infrastructure including cabling and raceways shall provide longevity to ensure future proofing. Cabling
plant shall be a current product available in the market, which meets latest standards with enhanced
bandwidth capabilities and overhead. Raceways shall be provisioned to allow for a minimum of 20%
spare physical capacity upon completion of facility. This will require a 30% initial design capacity to
accommodate changes to program.
DATA NETWORK SYSTEM
The ballpark will include a complete and fully functional Enterprise Network Switching and Routing
System, The Enterprise Network Switching and Routing System shall be a converged data network that
provides a single data network backbone connectivity for all building systems, applications, tenants, and
users. The data network system is planned to include the following:
• Administrative Data (Computers, Printers, and Scanners)
• Advertising Panels
• Building Management Systems
• Building Systems Controllers (HVAC and Lighting)
* Point of Sale
• Security Management System
• Ticketing System
• Wireless Ticket Scanners
• Wireless POS
• Wireless LAN
• Wireless Public Internet
Other data communications to be determined
Stadium Systems General Description
Page - 5
CAA - Exhibit D
Project Program Statement
Spectator Facilities
Projected Ballpark Capacity of approximately 37,000 spectators
Seating 209 310SF
a. Batter's Box Seats
Premium seating at Field Level, in close proximity to home plate.
Fully upholstered, operable armchair seats, cupholders.
Seatholders have access to Batter's Box Lounge,
!n -seat service.
Accessible from service level.
st and 3rd Dugout Club Seats
Premium seating at Field Level, next to 1st and 3rd base dugouts.
Fully upholstered seat, operable armchair seats, cupholders.
Seatholders have access to seats through a Dugout Lounge at Service Level,
Accessible from service level.
Owner's Box
12 Designated seats located within the Batter's Box section (see features above),
d. Horne Plate Reserved
ocated in lower bowl, behind the Batter's Box seats and home plate.
Plastic seat and back, operable armchair seats, cupholders.
Field Box Seats
Located in lower bowl, behind dugouts.
Operable armchair seat with upholstered seat pad and plastic back, with cupholder.
ist and 3rd Reserved Seats
Located in lower bowl, on 1st and 3rd base sides.
Operable armchair seats with plastic seat and back, with cupholders.
c;. Outfield Reserved
Located in outfield of lower bowl.
!Mastic seat and back, operabl , armchair seats with cupholders.
Redirected seating provided as needed,
h. Fiesta Deck Seats]Bleachers
Located in outfield @ intermediate deck.
Bench type seating (economical seating).
i. Party Room @ Field Level
Party Room to be located behind field wall at outfield, with catered party area behind the seats.
(2) Tiers of seating.
Suites Seating
See Suites (See 9.00 below) for breakdown of suite types.
k. Club Level Seats
Premium seating with prime view of the field.
Operable armchair seats with lightly padded seat and cupholders.
Seatholders have access to Club Lounge.
I. View Level Box Seats
Located at upper deck, below the cross aisle.
Plastic seat and back, operable armchair seats with cupholders.
Re -directed seating provided, as needed.
M. Standing Room Positions
Distributed between the Main and Upper Concourses, these are designated standing room only (SRO) field -viewing positions.
The Main Concourse level SRO's will be in the form of terraced platforms In Left Field, overlooking the bullpen,
2.00 Public Toilet Rooms (o) General Concourses: 28,765SF
a. Women's
Number of plumbing fixtures is based on 2004 Florida code (at minimum). Code requires 3:2 ratios of women's fixtures to men's.
Each is to be equipped with individual mirrors w/shelf, full length mirror and diaper changing station.
b. Men's
Number of plumbing fixtures is based on 2004 Florida code (at minimum),
Each is to be equipped with individual mirrors w/shelf, full length mirror and diaper changing station.
C. Street Level Public Toilets:
Provide men's and women's toilet rooms @ street level, for commercial retail customers' use. Include (4) toilet fixtures and diaper
changing station in both mens and women's.
3.00 Batter's Box Toilet Rooms (included with Batter's Box Lounge SF)
a. Women's
Provide premium finishes.
Include diaper changing station.
b. Men's
Provide premium finishes.
Include diaper changing station,
4.00 Dugout Club Toilet Rooms 2,420SF
Provide men's and women's toilet rooms @ the Dugout Club lounges at both 1 st and 3rd base side, for these seatholders and Field
Box seatholders only (2 sets of m/w toilet rooms at each side, one of those adjacent to seating). Include diaper changing station in
both men's and women's. Provide premium finishes.
5.00 Club Level Toilet Rooms 4,675SF
a. Women's
Number of plumbing fixtures is based on 2004 Florida code (at minimum). Code requires 3:2 ratios of women's fixtures to men's.
Provide premium finishes.
Include diaper changing station.
b. Men's
Number of plumbing fixtures is based on 2004 Florida code (at minimum).
Provide premium finishes.
Include diaper changing station.
6.00 Suite Level Toilet Rooms 1 100SF
a. Women's
Assume 4 toilet rooms, distributed equally around the suite corridor, w/4 water closets per room. Number of fixtures exceeds code.
Provide premium finishes.
Include diaper changing station.
b. Men's
Assume 4 toilet rooms, distributed equally around the suite corridor, w/2 water closets, and 2 urinals per room. Number of fixtures
exceeds code.
Provide premium finishes.
Include diaper changing station,
7.00 Family Toilet Rooms 560SF
A unisex toilet room w/one water closet, one lavatory, oversized changing table and a side chair.
Distributed throughout the p;t,•'ic concourses and at premium levels (6 minimum).
8.00 Suites 42 345SF
a. Luxury Suites
Approximately 14'x 34' each (with some variation due to bowl geometry), with premium finishes.
Include seating for 16 (total), in 2 tiered rows fixed armchairs, w/padded seats, w/ 6 seats per row, plus 4 upholstered bar stools at a
high table/ drink rail behind the back tier; consider caster -base chairs on back tier in lieu of fixed chairs.
Lounge area of suite to include back bar w/lockable lower cabinets, bar sink, ice maker, undercounter refrigerator, large concealed
trash container.
Provide small coat closet in each suite.
Provide TV monitors, one at outside seating and one within the suite.
b. Founders Suites
Approximately 18'x 40' each (with some variation due to bowl geometry), with higher premium finishes.
Include seating for 20 (total), in 2 tiered rows fixed armchairs, w/padded seats, w/ 8 seats per row, plus 4 upholstered bar stools at a
high table/ drink rail behind the back tier; consider caster -base chairs on back tier in lieu of fixed chairs.
Lounge area of suite to include back bar w/lockable lower cabinets, bar sink, ice maker, undercounter refrigerator, large concealed
trash container.
Provide small coat closet in each suite.
Provide TV monitors at outside seating and within suite.
Super Suite
Include seating for approximately 75 (total), fixed armchairs, w/padded seats, plus upholstered bar stools at a high table/ drink rail
behind the back tier; consider caster -base chairs on back tier in lieu of fixed chairs.
Lounge area of suite to include back bar wllockable lower cabinets, bar sink, ice maker, full-size refrigerator, large concealed trash
container.
Provide coat closet in each suite.
Provide TV monitors at outsiue Seating and within suite.
Party Suites
Sold on a game -per -game basis.
Approximately 15'x 36' each (with some variation due to bowl geometry.
Include seating for approximately 24 (total), in 3 tiered rows of fixed armchairs, w/seats, and cupholders, w/ 6 seats,per row, plus 6
upholstered bar stools at a high table/ drink rail behind the back tier.
Lounge area of suite to include back bar w/lockable lower cabinets, bar sink, ice bin, and large concealed trash container.
Provide coat closet in each suite,
Provide TV monitors, one at outside seating and one within the suite
Certain party suites shall be adjoining, with double door @ adjoining wall, to allow expandability as needed.
Owners Suite
For Team Owner's use, to be located directly behind home plate at suite level.
Include seating for approximately 30 (total),
Lounge area of suite to include small kitchen, bar, counter for catering set-up, Kitchen will include a back bar w/lockable cabinets, bar
sink and full size refrigerator and ice maker.
Provide private toilet room and coat closet in the suite.
Home GM Box
This box will be used for Baseball Operations staff.
Provide suite -like buildout, with 2 tiers of seating (for 4-8 persons), and a lounge in the rear of the suite, with counter for catering set-
up and a center island for guests. Include private toilet, ice maker, lockable cabinets, bar sink and trash container.
Party Room at Field Level
Located in the Outfield, offering view of the field through the field wall.
Used for group sales, it will include seating for 150 and an open area behind the seats for catering set-up, with necessary counter
space.
9.00
a.
b.
10.00
a.
Drinkrails shall be designed with glass or acrylic backsplash insert, set 12" (minimum) from front edge of rail.
Provide toilet rooms for men and women at the rear of the party room, as these seats may not access other concourses. Women's
Will include 2 water closets, 1 lavatory and Men's will include 1 water closet, 1 urinal, and 1 lavatory. Both should include diaper
changing table.
Club Lounges 39 635SF
Batter's Box Club
Provides access to Batter's Box seats and includes the following:
Reception area, w/concierge desk.
Dining area with buffet/ chefs table.
Bar, adjacent to the Batter's u6x seating area and separate from dining area.
Kitchen, to service the dining/buffet service and the in -seat service (see B.3. below).
Wait station, in proximity to the Batter's Box seats.
Women's toilet room (see 4.00 above).
Men's toilet room (see 4A0 above).
Janitor's closet,
Dugout Club Lounges
Located at 1st and 3rd base sides @ Service Level, to provide small private lounge with light food & beverage service and restrooms,
accessible to Dugout Club seatholders and Field Box seatholders, for use before, during and after the game.
With up -scale buffet, limited menu during game.
Include bar and a few high -top tables w/chairs.
Each to include TV monitors.
Women's toilet room (see 5,00 above).
Men's toilet room (see 5.00 above).
Club Lounge @ Club Level
Provides circulation and access to Club seats and includes the following:
Feature bar(s), lounge furnishings and TV monitors,
Specialty concession stands (see B 1.b),
Men's and women's restrooms (see A.6).
Owner's Dugout Lounge
This is a lounge for team Owner, located near team dugout.
To include a sitting area, dining area, small kitchen and private toilet room.
Guest Relations 660SF
Guest Relations Room @ Madn Concourse
Centrally located in the concourse, in proximity to first aid room,
Includes office/reception area for 2 staff, w/transaction counter and coiling shutter.
Includes temporary holding space with counter space and shelves (for lost and found items/ other storage).
Includes small meeting room used for settling ticket disputes and other incidents where privacy is needed,
Provide 2 advance ticket windows off the concourse, with ticket seller's access from within the guest relations room.
Guest Relations Room @ Upper Concourse
Centrally located in the concourse, in proximity to first aid room.
Includes office/reception area for 2 staff, w/transaction counter and coiling shutter.
Provide one advance ticket window off the concourse, with ticket seller's access from within the guest relations room.
Include storage closet within the room,
First Aid 1 200SF
Primary First Aid Station
Located at Main Concourse, close to guest relations room and with close access to ambulance pick-up point.
Main room will consist of small waiting area and treatment room w/3 beds with privacy curtains, lockable cabinet, counter with double
sink (w/hot and cold water), and full-size refrigerator.
Provide private office for doctor/EMT staff.
Provide unisex toilet room.
Provide small storage room.
b. Satellite First Aid Station
Located at Upper Concourse, close to guest relations room and with close access to ambulance pick-up point.
Main room will consist of small waiting area and treatment room w/2 beds and lockable medical cabinet.
Provide small office for doctor/EMT staff.
Provide unisex toilet room.
12.00 Ticket Facilities 4 200SF
a. Ticket Windows
- Windows to be provided between the main box office (advanced sales and day -of -game) and those located at other entry gates (day
of game only). Approximately half of the windows should be located at main box office, with others distributed at other gates.
Each ticket window to include counter and cabinets underneath, space for ticket terminal and splitter, keyboard, storage for ticket
stock, cash drawer and high padded chair.
Provide bullet -resistant glass with shades or blinds at each window, and canopy over exterior- facing windows.
Ticket signage at box office should be easily identifiable from street.
Provide turnstiles, @ a minimum ratio of 1:1000 spectators, to be fitted with scannable devices,
b. Ticket Office
Office for ticket operations staff will be located adjacent to main ticket windows, including the following spaces:
Director of Ticketing Office.
Assistant Director's Workstation,
Administrative Assistant/Receptionist,
Workstations for Advanced Sales Supervisor, Day of Game Sales Supervisor, Ticket Office Coordinators (2) and Senior Account
Clerk.
Ticket Processing Work Area.
2 -Compartment Vault.
Storage.
Men's/ Women's Locker Rooms.
Men's/ Women's Toilet Rooms,
Kitchenette,
Circulation.
13.00 Entertainment Features 6 100SF
a, Kids' Zone
@ Main Concourse level in outfield level next to Fiesta Seats.
To include retail component, concession stand and interactive features.
b. Marlin Feature
@ Main Concourse level.
To consist of a large scale, animatronic "jumping marlin" in a tank, used as a home -run feature.
C. Support Space for Marlin Feature
Filtration and/or other equipment for the Marlin feature.
d. Outfield Swimming Pool and Beach
Create similar swimming pool feature Marlins currently have at Dolphin Stadium, but updated and possibly somewhat larger.
Create sand beach area around the swimming pool.
This will be used as a group salas area, in association with the outfield party room.
B. Food Service & Retail
1.00 Concession Stands 29,480
a. General Concourses (Main and Upper)
Concession stands will be located at all public concourses, distributed to be convenient to all seatholders.
Assume that 50% of all stands will include grease exhaust equipment.
One of the stands, near Kids' ?one, may be designated as a"kids stand", with family-oriented menu and special design features and
graphics.
b. Club Lounge Concessions
Specialty food offerings in stands with upgraded finishes.
Assume that 50% of all stands will include grease exhaust equipment,
C. Taste of Miami Food Court & Sports Bar
The Marlins wish to include a food court at the Main Concourse, which includes a variety of concessions as well as a potential Sports
Bar.
d. Portables
Portable concessions will be located on both the lower and upper concourses, to supplement permanent concessions stands.
Provide electrical outlets at designated locations in those concourses.
2.00 Vendor Commissaries 3 800SF
a. @ General Concourses (Main and Upper)
Provide (2) vendor commissaries at each public concourse, located to allow equal distribution to the seating bowl.
The commissaries serve as cash -in and restocking stations for hawkers/ vendors, Provide shelving units and walk-in refrigeration,
b. @ Club Level
Provide (1) vendor commissary,
3.00 Kitchens 9 600SF
a. Main Kitchen
Main kitchen, located at Field Level, for preparing food served in suites and clubs.
b. Batter's Box Kitchen
Located with Batter's Box lounge, to support food service there as well as in -seat service to Batter's Box seats.
Location/configuration should allow for in -seat runners to have direct path to BB seats without crossing BBL dining room.
- A cooking kitchen, requiring grease exhaust.
4.00 Catering Pantries 1 300SF
- Pantries should be distributed as follows: / @ Field Level next to Party Room,1 @ Suite Level and 1 @ Club Level.
- Pantries will be non -cooking (warming equipment only).
5.00 Main Commissary 20,000SF
- Located at Service Level, close to loading docks.
- Provides warehousing and storage space for food service in the ballpark, including refrigerated/ frozen storage walk-in units, and dry
storage pallet areas and shelving units.
6.00 Food Service Staff Facilities 3 200SF
a. Entry/ Check-in Area
- Provide single entry point for seasonal staff, located near other concessionaire facilities
This area will include check-in terminals, wall space for employee postings.
b. Laundry/ Uniform Distribution
Locate near other concession facilities, closest to check-in area.
Provide transaction counter and storage shelves/ hanging rods, sewinglembroidery station, sorting table, pressing area and space for
1 residential washer, 1 commercial washer and 1 commercial dryer,
C. Food Service Staff Locker Room — Men
Locate near other concession facilities, close to check-in area.
Include toilet room within the locker room, with 2 water closets, 3 urinals and 3 lavatories
A. Food Service Staff Locker Room — Women
Locate near other concession facilities, close to check-in area.
Include toilet room within the locker room, with 5 water closets, 3 lavatories.
e. Food Service Cashier Room
Locate next to concessions administrative offices and vault or near commissary.
7,00 Retail Facilities 11 200SF
a. Main Retail Store
This is the main retail store for the ballpark and will have regular, non -game day hours of operation to serve tour groups and regular
customers.
It should have good exposure, with maximum glass frontage, and easy access
Includes stock space, unisex toilet and manager's office.
Include a ticket window inside team store to allow ticket sales from that one location.
b. Satellite Retail Store
This is a walk-in store that sells team merchandise. It is a satellite operation to the main team store.
It should be accessible from 4 hin the ballpark only (no outside entrance).
C. Street -front Retail Shops
Provide up to 4 specialty shops at street -level entry area.
They should be contiguous, with connecting doors.
d. Novelty Stands
Provide walk-up novelty stands to supplement other retail stores in the building
Each stand should have maximized frontage and the ability to close up and secure the stand at close of business.
e. Portable Novelty Stands
Provide portable novelty stands to be distributed at concourses. Assume that electrical outlet is required at each.
C. Media Facilities
1.00 Press Box Facilities (@ Press Level) 7,900SF
Includes Writing Press and Broadcast Press to be located on one or two levels.
a. Writing Press Area
Approximately 110 stations for writers, in a 3 -tiered arrangement.
Counters @ chair height, with network/internet access, chairs and TV monitors viewable from all stations.
Counters, w/tubby storage and lockable lower cabinets, should be located in rear of press box, for distributing game notes, stats,
press releases, etc.
75% of the stations are for writing press, 25% for electronic media.
b. Media Relations Staff Room
To be used by Media Relations Staff during game, located adjacent to writing press area.
Includes work counters, shelving, cabinets, a workstation for PR staff and a library for media guides,
C. Media Work Room
This room is used by writers,,-- a place to write and file their stories after the game.
Located next to media dining area, at press box level,
Includes counters/work stations and chairs along the wall with outlets. Also include a bank of tubby lockers along one wall.
d. Press Dining/ Lounge
Capacity of 40 to 50, at primarily 4 -seater tables, with chairs and a buffet/steam table.
Include counter space w/electrical outlets, and beverage cooler,
No kitchen, food will be brought in,
e. Press Toilet Room — Men
Toilet room provided for writers, near writing press area.
Includes 3 water closets, 4 urinals and 3 lavatories w/shelf and mirror.
Include audio feed.
f. Press Toilet Room — Women
Toilet room provided for writers, near writing press area.
Includes 3 water closets, and 2 lavatories w/shelf and mirror.
Include audio feed.
2.00 Broadcast Facilities (A Press Level) 5,090SF
a. Home Radio Booths
For home English radio and home Spanish radio.
With counter, closure system that allows booth to be open during game, with no view obstruction.
Elevated platform at rear of booth, for producer.
Home radio will be next to home TV.
b. Radio/ Auxiliary Radio Booths
For visiting radio and auxiliary radio.
With counter, closure system that allows booth to be open during game, with no view obstruction.
Elevated platform at rear of booth, for producer.
C, Network/ Auxiliary Broadcast Booths
For network and auxiliary TV.
With counter, closure system that allows booth to be open during game, with no view obstruction.
Elevated platform at rear of booth, for producer,
d. TV Broadcast Booths
For home and visiting TV.
With counter, closure system that allows booth to be open during game, with no view obstruction.
Elevated platform at rear of booth, for producer.
Ceiling of each booth should be open to structure or lay-in ceiling with suspended pipe grid installed, to allow clips for spot lighting.
Install pull-down shade at front of home booth, to provide anti-glare background.
e. TV Broadcast Executives Booth
A private box for TV broadcast executives' use, located behind or adjacent to the home TV booth, or included as part of luxury suites.
The finishes and furnishings of this booth should be similar to a suite.
Includes TV monitor(s), kitchenette casework, bar sink, Ice maker/bin and under- counter refrigerator,
f, Operations Staff Booth
Located at Press Level.
Should be fully wired for use as auxiliary broadcast booth, if needed,
g. Visiting GM Box
For visiting GM, located at Press Level, at end of row of other broadcast booths.
Should accommodate 4 persons, in field-view seats with writing surface.
h. Scoreboardl PAI Music Control Room
Requires field view.
Will contain customized consoles and equipment, detail to be provided by technical consultant with input from Marlins' in-game
entertainment production staff.
Will include audio/ PA/ Music equipment and staff,
Includes rack and server room.
i. In-game Entertainment Production Offices
Offices for the In-game Entertainment production group, located across corridor from the control room.
Assume 4 offices. Prefer that offices are separated with glass partitions.
j. Tape Vault
Locate tape vault across corrid. from control room.
k. Media Toilet Room - Men
Toilet room provided for broadcasters, near booths.
Includes 1 water closet, I urinal and 1 lavatory w/shelf and mirror
Include audio feed.
I. Media Toilet Room -Women
Toilet room provided for broadcasters, near booths.
Includes 2 water closets and 1 lavatory w/shelf and mirror.
Include audio feed,
3.00 Media Facilities (@ Field Level) 1,9208F
a. Press Conference Room
Flat floor space, located in close proximity to the Marlins clubhouse and to Batter's Box Lounge if possible.
To include (portable) risers at front of room, to accommodate interviewee and platform at back of room, for TV cameras.
Include a built-in high quality PA system, full wiring for media hookups, TV monitors in every corner.
Should not be located near a laundry or other"noisy" room.
Provide pipe frame at ceiling height near front, to hang lighting.
b. Press Conference Room Storage
Within or adjacent to Press conference room.
To store temporary risers, tables/ chairs and other equipment.
C. Green Screen Room
Located near the Batter's Box Lounge.
For one-on-one interviews,
Fully wired for media hookups,
d. Toilet Rooms for Media
Provide toilet rooms for men and women, near Press Conference Room.
Each to include one water closet, one lavatory.
4.00 TV Truck Parking Area 8,560SF
a. Crew Room
Break area for TV production crews, located adjacent to the TV truck dock.
Include table and chairs for 12 to 15, TV, countertop with sink, and refrigerator.
b. Crew Toilet
Unisex toilet room near the crew room, with a water closet and lavatory.
C. Storage Room
Include lockable cages for crt v:3 to store their equipment.
Located close to crew room.
d. AN Entry Hub
Entry point for broadcast truck cabling, located adjacent to TV truck parking, with direct access into space from outside.
e. TV Truck Parking Area
Protected and secured dock space for (4) expandable -type, HID, network trucks,
Should be separate from the service and food service loading area.
Allow space for 2 additional trucks at the street.
f. ENGI Satellite Trucks Parking (exterior)
On-site parking for local TV vans and satellite uplink trucks, in the vicinity of the broadcast TV Trucks.
Up to (10) trucks to be accommodated.
5.00 Cameral Still Photo Facilities 800SF
a. Still Photo Workroom
Located near home plate at Service Level, to allow ready access from the camera pits
Provide counters along the wall, to accommodate 8 photographers at one time.
b. Still Photo/ Camera Pits
Camera pits will be shared between still photographers and TV cameras.
Provide space at the two outside dugout camera pits for 15 still photographers (total) + TV camera positions.
Robotic or handheld cameras will be used for inside dugout camera positions.
Provide broadcast cabling and multiple duplex outlets to each pit.
C. Camera Positions
Provide TV camera positions as follows, at the lower bowl (according to MLB current guidelines);
4 cameras @ centerfield.
1 camera down 1st base @ foul pole.
1 camera down 3rd base @ foul pole.
1 robotic camera @ low home position.
D. Clubhouse Facilities
1.00 Home Clubhouse 17 584SF
a. Ante -room
Located close to clubhouse entry, by guard station.
This is a waiting room for player agents, endorsement reps, etc., who are not allowed in the locker room.
b. Player Locker Room
To include 40 lockers, each with chair. Provide electrical outlet at each locker.
To include wall/ceiling mount,:,; TVs and distributed sound system.
C. Player Grooming Area
Located adjacent to player locker room, and includes toilets, showers and drying area, with the following provisions:
Shower room with 10 wall mounted shower heads and adjacent drying area,
4 water closets, 6 urinals, and vanity counter with 8 lavatories, shelf & full-length mirror w/outlets.
Storage closet for grooming supplies.
d. Player Lounge/ Kitchen
Located in close proximity to player locker room, to include dining area and open style service kitchen with following provisions:
Dining area for 24 @ 4 -seater tables and counter along wall equipped with self -serve beverage equipment, and under -counter
cabinets.
Service kitchen to include commercial stove with exhaust hood, dishwasher, refrigerator, freezer, work counter w/2 -compartment
sink, storage cabinets and other equipment.
Pantry within the kitchen.
e. Manager's Office/ Dressing Room
Includes office for Manager with adjoining, private dressing area,
Dressing room includes a shower, water closet, lavatory and locker w/chair. Provide outlet at locker.
f. Coaches' Lockerl Grooming Area
Includes lockers and chairs, Provide outlet at each locker.
Grooming area includes 2 showers, 2 water closets, 2 urinals and vanity counter w/3 lavatories, full mirror and shelf w/outlets.
g. Coaches' Meeting Room
Private meeting room for coaching staff, not open to media.
To include conference table, with marker board at one wall,
Located near Coaches' locker room and Manager's office.
h. Training Room
Locate central to the Trainers Und Team Doctors, adjacent to hydrotherapy.
Includes treatment tables w/built-in cabinets and taping table, and work counter w/sink, lockable cabinets and electrical outlets,
located at one end of the room,
Other end of room should be open area for stretching, to include electrical outlets for powered equipment,
No media access.
i. Training Staff Office
Locate adjacent to Training Room, with glass wall that allows full view into that room and into Hydrotherapy room.
Head Trainer's Office.
Assistant Trainer's Office.
j. Hydrotherapy Area
Enclosed room, for moisture and humidity control, located directly adjacent to training room,
Includes whirlpools, a Swim -X pool (or similar), quiet ice machine and a sauna.
Windows between hydrotherapy room and training room, to allow monitoring by training staff.
k. Training Storage
Secured storage room w/built-in shelves, located near training room.
I. Doctor's Office/ Exam Room
Locate near Training Office.
10
Includes a treatment table, chiropractic exam table, equipment cabinet and work counter wl upper and lower cabinets, sink and work
space for Team Doctor,
M. Weight Training Area
Locate in close proximity to training room, accessible from within the clubhouse and also from the service tunnel.
Contains weight training and cardio equipment, w/rubber floor mats under equipment and full-length mirror.
Include built-in sound system, ceiling fan, TV's in each corner.
Includes office for Strength Coach and secured storage room.
n. Interview Room
Fully wired for media hookups.
o. Equipment Manager's Office
Locate at clubhouse entry, with direct view into locker room.
p. Equipment Storage Room
Locate near Equipment Manager's office.
Storage of bats, balls, uniforms and other gear.
Located within clubhouse but with access from service tunnel, for direct loadinglunloading of equipment,
High ceiling clearance.
Includes long rows of shelve; .-'own center and sides of room, hanging bars for uniforms.
Area shown includes lockable rooms for ball storage and bat storage (climate controlled).
q. Luggage Room
Located off equipment room and adjacent to loading/ unloading area.
r. Laundry Room
To service home clubhouse only.
Includes washers and dryers, a residential -type washer, a double wash basin, large hanging rack, lint filter, folding counter and
supply cabinet.
Install equipment on raised slab, for easier loading/ unloading, with a drainage trough behind washers.
S. Video Coaching Room
For video production and coaching, preferably located within or close to dugout tunnel and batting cage.
Include counters w/ space for video monitors and overhead cabinets for tape storage.
Workstation for Video Coordinator.
Include lockable storage cabinets for tape and equipment storage.
t. Batboys' Locker Room
Provide (8) lockers @ 12" wide each, located near the equipment room.
2.00 Home Family Lounge 1,200SF
Locate in vicinity of clubhouse but not adjacent to it, and in proximity to player parking.
Shall include lounge area w/TV, a nursery (semi -private area), play area for small children at other end of the room and private toilet
rooms for men and women (one water closet in each), with diaper changing station in each.
Lounge to include TVs, lounge furniture, bank of cubby lockers, kitchenette with sink, cabinets, refrigerator, microwave, and counter
for catering set-up.
3.00 X-ray Room 180SF
Locate between home and visitor clubhouse, off service corridor.
4.00 Home Dugout & Dugout Tunnel 4,800SF
a. Home Dugout
With front and back bench.
Back bench should allow full view of outfield.
b. Dugout Tunnel
This is the area connecting the clubhouse to the dugout.
Includes a field toilet with water closet and lavatory.
C. Batting Tunnels
Includes (2) contiguous cages @ 18'x 85' each, with pitching mounds.
To be for use by home team only, located in close proximity to the dugout.
11
5.00 Visitor Clubhouse 8 349SF
a. Player Locker Room
To include 40 lockers each with chair. Provide electrical outlet at each locker.
To include wall/ceiling mounted TVs and distributed sound system.
b. Player Grooming Area
Located adjacent to player locker room, and includes toilets, showers and drying area, with the following provisions:
- Shower room with 10 wall mounted shower heads and adjacent drying area,
- 4 water closets, 4 urinals, and vanity counter with 8 lavatories, shelf & full-length mirror w/outlets.
- Storage closet for grooming supplies.
c. Player Lounge/Kitchen
Located in close proximity to player locker room, to include dining area and open style service kitchen with following provisions:
- Dining area with 4-seater tables and counter along wall equipped with self-serve beverage equipment, and under-counter cabinets.
- Service kitchen to include commercial stove with exhaust hood, dishwasher, refrigerator, freezer, work counter w/2-compartment
sink, storage cabinets and other equipment.
- Pantry within the kitchen, (included).
d. Manager's Office/ Dressing Room
- Includes office for Manager with adjoining, private dressing area,
- Dressing room includes a shower, water closet, and lavatory and locker with chair.
- Provide outlet at locker.
e. Coaches' Locker/ Grooming Area
Includes 10 lockers and chairs. Include outlet at each locker.
Grooming area includes 2 showers,1 water closet, 2 urinals and vanity counter w/2 lavatories, full mirror and shelf w/outlets.
f. Training Room
Includes (3) treatment tables, work counter and a workstation with computer hook-up.
Provide a wet area adjacent to training room, with 2 whirlpools, sink and ice machine, separated from the treatment area, and a glass
window allowing view into whirlpools from the treatment area.
Provide sloped floor and floor drains to keep water from seeping from wet area into treatment area.
g, Training Staff Office
Located adjacent to Training Room, with glass wall that allows full view into that room and into Hydrotherapy room.
h. Weight Room
Located in close proximity to Visiting Clubhouse,
Provide entry from within clubhouse and also from service corridor.
Contains weight training and cardio equipment, w/rubber floor mats under equipment and full-length mirror,
Include built-in sound system, ceiling fan, TV.
I, Visiting Clubhouse Manager's Office
Locate at clubhouse entry, with direct view into locker room.
j. Equipment Storage Room
Located within clubhouse but with access from service tunnel, with double doors, for direct loading/unloading of equipment (as much
as possible).
k. Luggage Room
Located off equipment room and adjacent to loading/ unloading area.
I, Laundry Room
Includes washers and dryers, a residential-type washer, a slop sink, large hanging rack, lint filter, folding counter and supply cabinet.
Install equipment on raised slab, for easier loading/ unloading, with a drainage trough behind washers.
6.00 Visitors Dugout & Dugout Tunnel 3 200SF
a. Visitors Dugout
Same design as home dugout.
b. Dugout Tunnel
This is the area connecting the clubhouse to the dugout.
12
Includes a field toilet with water closet and lavatory.
C. Batting Tunnels
Includes 1 cage @ 18'x 85',
7.00 Auxiliary Locker Rooms 1600SF
a. Auxiliary Clubhouse
Locate near Visiting Clubhouse.
Will be used by In Game Entertainment during events (Le. concert talent, Mermaids, Manatees, etc,).
Sub dividable locker room, for use by one large group or two smaller groups of both genders,
To include a total of (50)12" vale lockers, (6) shower heads, (4) water closets, (4) urinals, (6) lavatories w/mirrors and shelves
w/outlets.
b. Mascot Dressing Room
Located at Service Level, away from player locker rooms,
Includes desk, wardrobe closet, dressing area, shower, water closet, vanity counter with lavatory and mirror.
C. Star Dressing/ Women's Umpires Room
Will serve as female umpires changing room, when necessary.
Includes (2) 42" lockers, shower, water closet and vanity counter with lavatory and mirror.
8.00 Umpires' Locker Facilities 950SF
Umpires should have a separate field entry from players.
a. Men's Locker Room
Includes locker area and grooming area.
Locker area to include (6) lockers @ 42" w.
Grooming area to include (3) shower stalls, a water closet, (2) urinals and a vanity counter w/ (2) lavatories, mirror, shelf and outlets.
b. Umplres' Lounge
Locate adjacent to the Men's locker room and Star Dressing (women's locker room).
Includes lounge furniture, TV, exercise equipment and kitchenette with refrigerator and counter with sink and cabinets.
9.00 Bullpens 5 OOOSF
Home and Visitors bullpens will each consist of space for 2 pitchers and 2 catchers to work out, with regulation clay pitching mounds,
a covered player bench or chairs for up to 8 pitchers and a field toilet.
Playing surface to be artificial turf.
E. Service and Operations Facilities
1.00 Event Staff Facilities 3.625SF
Back of house facilities for event staff including ushers, security, ticket takers and customer service staff.
a. Employee Entry/ Check-in/ Break Area
Common space that serves as check-in area before game, with check-in terminals.
Provide some tables at one end of the room, with counter and cabinet and microwave, and space for 3 vending machines, to serve
as break area,
Allow queuing space at uniform distribution counter, adjacent to this check-in area.
b, Laundry/ Uniform Distribution
This room will be used to launder, store and distribute event staff uniforms.
Provide transaction counter between this room and the check-in area.
Includes 1-2 commercial washers and dryers, storage shelves, hanging rods and a countertop for folding laundry.
C. Men's Locker/ Toilet Room
Provides changing room and toilet facilities for approximately 250 male employees.
Includes 12" wide, 3' -high lockers and changing bench.
Toilet room should be connected to locker room and include 2 water closets, 3 urinals and 3 lavatories.
d. Women's Locker/ Toilet Room
Provides changing room and toilet facilities for approximately 150 female employees.
Includes 12" wide, '-high lockers and changing bench.
13
Toilet room should be connected to locker room and include 4 water closets and 3 lavatories.
e. Supervisors' Office
Provide secured workroom for event supervisors, located off the common check-in area,
Includes workstations for 8 supervisors,
2.00 Ballpark Operations Office 4 600SF
Stadium Operations offices should be located at Service Level, with ready access to public areas of the ballpark. The following
spaces shall be included:
Office for Sr.VP, Stadium Operations.
Office for Director, Stadium Operations,
Office for Director of Security.
• Office for Director of Sales.
• Office for Director of Building Engineering,
• Managers' Offices - for Managers of Food & Beverage, Customer Service, Game Services, Other Events, Maintenance and Parking,
Supervisors' Workstations - for Supervisors of Engineering, Guest Services.
Workstation for Assistant to U.ector of Building Engineering and Maintenance.
Administrative Asst. Workstations - for Building & Operations and Events/ Customer Service,
Other Offices/ Workstations (for Interns, other support).
• Conference Room for (10).
Kitchenette.
Toilet Rooms.
Supplies/ Copy Room,
3.00 Ballpark Maintenance 4 675SF
a. Combined Maintenance Shop
This will be a common shop area for all building maintenance operations, including carpentry, mechanical, electrical, plumbers and
paint shop.
Located at service level, directly off service tunnel, with overhead door and man -door.
Each department will need to be secured/ gated, with appropriate build -out, including counters and other equipment,
b. Shop Locker Room - Men
Locker room for all trades' use, located near Maintenance Shop,
To include approximately (10) full -height, 18" wide lockers, one shower, 1 water closet, 2 urinals and 2 lavatories.
C. Shop Locker Room - Women
Shop locker room for female staff, located near Maintenance Shop.
To include approximately (3) full -height, 18" wide lockers, one shower, 1 water closet, and 1 lavatory.
d. Shop Staff Break Room
Break area for all trades' use, located adjacent to Maintenance Shop, with connecting doorway.
To include tables and chairs, refrigerator, counter with sink, coffee machine and microwave.
4.00 Cleaning/ Janitorial 4,7508F
a. Cleaning Crew Check-in/ C';':e
Check-in area for post -game clean-up crews.
Includes two offices and reception area.
Includes space for approximately (40) lockers, 12" wide, 3 -tiered.
b. Cleaning Supply Room
Provide lockable room to store bulk paper goods and cleaning products for janitorial use, which should be located near the loading
dock.
Include shelving units.
C. Stadium Maintenance Rooms
Storage space for cleaning equipment (sweepers, brooms, etc.) and supplies, located at public concourse levels, w/double door
access off concourse. Preferred location is next to freight elevator, away from public view, as this is a sloppy area.
Include space for tenant machine, with slop sink and floor drain.
14
d. Housekeeping Rooms
Housekeeping supplies and equipment storage, located at club and suite levels.
Include slop sink with hot and cold water,
e. Janitor's Closets
Located between men's and women's public toilet rooms at public concourse levels,
Include slop sink with hot and cold water, mop hooks and shelving,
f. Trash Room/ Trash Chute
To be used as a holding area for trash that accumulates during the game, located in stacked position at main and upper concourses
(aligned with trash compactor at service level).
Will include the trash chute access.
5.00 Groundskeeping Facilities 7 260SF
a. Equipment and Bin Storage Area
The main storage and equipment area for groundskeeping operation, to include space to store and maneuver tractors and other
grounds keeping vehicles.
Include space for 4 infield material bins and fertilizer pump unit.
Requires direct access to the field through overhead door
Includes crew holding area adjacent to the field (for infield crews).
Includes residential washer and dryer.
b. Head Groundskeeper's Office
Private office, located off equipment area.
C. Grounds Crew Locker Room - Men
Includes (12)18" wide lockers, (2) showers, (2) water closets, (3) urinals and (3) lavatories.
d. Grounds Crew Locker Room • Women
Includes (4)18" wide lockers, a shower, water closet and lavatory.
e, Crew Break Room
Meeting/ lounge space for grounds crew, centrally located to other groundskeeping facilities.
Include lounge furniture, table/chairs, and kitchenette with countertop, cabinet, sink, refrigerator and microwave.
f. Chemical Storage Room
Secured room with fire-rated walls, to contain pesticides and/or other chemicals used in groundskeeping. Will be located within
equipment storage area.
g. Batting Cages Storage
Designated space off field entry, to store portable cages.
h. Infield Material Storage (@ 1st or 3rd base area)
Designated space for storing materials near infield. Located off a field entry tunnel, for easy access to infield.
I. Grounds Storage
Designated storage space for grounds crew outside ballpark.
6.00 Truck and Trash Dock 4,81 QSIF
a. Loading Dock
Includes 2 bays for general deliveries and 2 dedicated bays for food service deliveries, all with dock levelers.
Locate near food service commissary, with food service dock spaces being closest to commissary.
Truck parking area should be secured space but allow for ventilation of exhaust fumes.
b. Receiving Dock Office
Secured office with a window, to oversee activities at the service dock and control entry.
Locate near entry to the dock, to allow full view of dock entry,
C. Trash Compactor
Provide space for (2) trash compactors in an air-conditioned enclosure, with space and head clearance for trash truck pick-up.
Provide overhead door.
(2) Trash chutes are desired, ideally located at opposite sides of the building. Chutes should terminate at trash dumpster/compactor.
15
Recycling Room
Provide space for 3 or more recycling bins (plastic, aluminum, paper, other?) in an air-conditioned enclosure next to trash dock, with
adequate space for storing bags of recyclables (during game) and for sorting them (post -game).
Also provide in this area a designated area for a cardboard baler and for storing palleted cardboard bales.
Provide overhead door to the loading dock platform, to allow direct loading onto trucks from the bins. Double door off service corridor
is satisfactory.
Toilet Room
Provide unisex toilet room nee � the dock office.
7.00 Storage Areas 13.500SF
a. Stadium Vehicle Storage
- Space to store and maneuver vehicles used for ballpark operations and maintenance, i.e. golf carts, forklifts, etc. This does not
include groundskeeping vehicles, which are stored in the groundskeeping area.
b. General Storage
Secured storage at Service Level.
Includes storage of surplus stock for use in building maintenance.
Provide overhead door and double man -door, off service tunnel. Located near loading dock if possible.
Include shelving units.
C. Storage for Archives
Provide double door, off service tunnel.
Include shelving units.
d. Promotions Merchandise Warehouse
Requires high ceiling clearance.
Provide shelving, for palletized storage.
Locate close to loading dock.
Overhead door with man -door off service tunnel.
e. Promotions Storage
Provide secured space at mezzanine for promotions storage,
f. Retail Warehouse
Provide warehouse space for retail operations within the stadium, located at Service Level, close to loading dock.
Warehouse will include office for manager, assistant manager and warehouse manager
Provide ventilation, air conditlooing and shelving units.
g. Post Season Storage
- Designated storage area for items no longer required during off-season.
8.00 Building Security 2,400SF
a. Security Office
It is expected that Ballpark Security and the Police Department will work In tandem on game days, with Police running their command
out of these offices at those times. These offices will be staffed by Ballpark Security personnel, The following spaces are an estimate
of requirements, subject to review by the Police Department, Location should allow for easy, direct access to emergency vehicle
parking area,
General office area, with desk and 2-3 waiting chairs at front of office.
Meeting/ Interview room, with conference table and seating for 8 —10.
Holding cells @ approximately 5' x 5' each, with CMU walls, lockable metal fence/door, bench seating and tamper -proof light fixture.
Break area, with counter and sink, upper/lower cabinets, refrigerator and microwave, Bank of cubby-type lockers shall be located in
this area,
Storage/ Radio Room, to store and charge 2 -way radios, and for storing other security items, i.e. rain gear, cones, flashlights, etc,
- Unisex toilet room,
Location of security office should not be close to clubhouses or to media conference room. Should be close to one of the building
secondary exits,
16
b. Building Command Center
To serve as the 24 hr. secured entry to the building,
Locate near loading dock, adjacent to security office, with connecting door (card accessed).
To include monitoring systems for surveillance, security, PA, fire and other life safety and other engineered systems in the building,
C. Security Command Post
Located at Press Level or other elevated position within the bowl, this booth allows Security and Operations authorities a "crow's
nest" view of the crowd.
Provide space for approximately 4 persons plus surveillance monitors.
Provide one-way glass In this space.
9.00 Mechanical/Electrical/Plumbing Systems 30 250SF
Mechanical, electrical and other engineered systems equipment in the building.
Incorporate (4) intermediate distribution frame rooms at each level (one in each quadrant or near each gate), for distribution of fiber,
video, voice distribution, WI -FI, throughout the building (included in s.f. shown).
F. Circulation
1.00 Service Tunnel 23 OOOSF
- Provides common vehicular and pedestrian circulation at the Service Level for service vehicles and personnel. Provide continuous
clear corridor throughout, avoiding sharp 90 degree turns wherever possible.
2.00 Main Concourse 88 OOOSF
This is the primary circulation corridor around the seating bowl at Main Concourse Level. Provide generous space for crowd
movement, allowing for queuing at concessions stands.
Allow for drinking fountains, ATM machines, trash receptacles, program kiosks and other portables within the concourse,
3.00 Suite and Club Concourses 25 750SF
This is the corridor connecting all the suites.
4.00 Upper Concourse 45 OOOSF
This is the primary circulation corridor around the seating bowl at Upper Concourse Level. Provide space for crowd movement,
allowing for queuing at concessions stands,
Allow for drinking fountains, ATM machines, trash receptacles, program kiosks and other portables within the concourse,
5.00 Premium Seat Lobbies 3 OOOSF
Provide adequate space for guests to wait to board elevators,
Elevators will be used by suite holders and guests who have disabilities or mobility problems.
6.00 Exterior Terraces 8 OOOSF
Provide exterior terrace at Main Concourse,
7.00 Vertical Circulation63.000SF
a. Stairs
- Exit stairs through the building.
Elevators
Passenger and service elevators are included throughout building. One (at minimum) dedicated press elevator is to be provided,
which connects press level to field level.
(2) Freight elevators.
Square footage of elevators is counted within g.s.f. of building.
Locate one freight elevator next to commissary,
Ramps
One of the ramps to serve as the secured entry to the building.
17
G. Administrative Facilitieti
1.00 Team Administrative Offices 32,0005F
- The Marlins' administrative offices shall be located at the Mezzanine Level and shall include spaces for the following departments.
a. Executive Offices.
b. Ticket Sales.
G. Marketing, Broadcast, and Public Relations.
d. Corporate Sales.
e. Baseball Operations,
f. Legal.
g. Finance and Accounting.
h. Human Resources.
I. Payroll and Employee Benefits.
j. Management Information Systems.
k. Community Relations.
1. Community Foundation.
2,00 Provide space for the following areas.
Kitchenette.
Storage areas.
Executive conference room for 20 people.
Conference room for 12 people,
Locker room for 4 people.
Men's/Women's toilet rooms.
Workstations for sales representatives and support staff.
Filing cabinets
Supplies/Copy room.
Circulation.
3.00 Mail Room. 600SF
Mail room can be located off loading dock, to allow screening area that is segregated from offices.
4.00 Data Center. 800SF
Serves as the nerve center for many components of the ballpark.
Located at same level as Marlins offices.
Not an occupied space.
Include raised floor, reinforced walls, and solid ceiling.
Accessible to IT staff.
Requires wide doors (42' minimum).
Requires independent AC zone with generator connections. No Sprinklers,
5.00 Main Distribution Frame Room. 400SF
Locate next to data center, but separated from it,
Assume raised floor here.
6.00 Food Services Operations Offices. 3 OOOSF
The foodservice operations offices shall be located at Mezzanine level, in proximity to staff check-in and commissary and shall
include the following space:
General Manager,
Assistant General Manager.
18
Director of Catering.
Director of food Operations.
Administrative Assistant.
Receptionist.
Office Manager.
Workstations for support staff.
2 Compartment Vault.
Storage Area.
Men's/Women's toilet rooms.
Kitchenette.
Conference room for 10 people.
Filing cabinets.
Supplies/copy room.
Circulation.
H. Emergency Parking 2,100SF
I. Program Totals
1.00 Net Programmed Area 857,203SF
2.00 8.2% Net to Gross Factor 70 500SF
3.00 Total Gross SF 927,703S
19
Return to:
City Manager
3500 Pan American Drive
Miami, Florida 33128-1970
This instrument prepared by,
or under the direction of,
Julie O. Bru, Esq.
City Attorney
City of Miami
444 S.W. 2nd Avenue, Suite 945
Miami, Florida 33130-1910
Exhibit E
SPECIAL WARRANTY DEED
THIS SPECIAL'; 'ARRANTY DEED made this day of , 2009 by
and between THE CITY OF MIAMI, a municipal corporation of the State of Florida (the
"Grantor"), whose address is 3500 Pan American Drive, Miami, Florida 33133, a party of the
first part, and MIAMI-DADE COUNTY, a political subdivision of the State of Florida, and its
successors in interest (the "Grantee"), whose address is 111 N.W. 1St Street, Miami, Florida
33128-1970, party of the second part,
WITNESS: That the Grantor, for and in consideration of the sum of Ten Dollars
($10.00) to it in hand paid by the Grantee, and other good and valuable consideration, the receipt
of which is hereby acknowledged, does hereby grant, bargain, sell and convey to the Grantee, the
following land (the `Property") laying and being in Miami -Dade County, Florida:
Legal Description attached hereto and incorporated herein y reference as Attachment
"A»
This Deed is subject to the restrictions, covenants and provisions of the restrictive
covenant attached hereto and incorporated herein by reference as Attachment "B" and grantee,
for itself and its successors in title to the Property hereby conveyed, agrees to be bound by and
comply with the terms and provisions thereof.
TO HAVE AND TO HOLD THE SAME, together with all and singular appurtenances
thereto, belonging or in airy way incident or appertaining, forever; and the Grantor will defend
the title thereto against all persons claiming by, through or under the Grantor.
IN WITNESS WHEREOF, Grantor has executed this instrument, and has caused same
to be executed by its City Manager, and has caused the same to be attested by its City Clerk and
its Corporate Seal hereon to be impressed on this, the day and year first above written.
Signed, Sealed and delivered
in the presence of:
ATTEST:
Priscilla A. Thompson, City Clerk
APPROVED AS TO FORM AND
CORRECTNESS:
Julie O. Bru
City Attorney
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
`60WI
CITY OF MIAMI, a Florida municipal
corporation
M.
Pedro G. Hernandez, City Manager
The foregoing instrument was acknowledged before me this day of ,
2009, by , who is personally known to me or who has
produced
an oath.
as identification and who did/did not take
NOTARY PUBLIC
Printed Name
My Commission expires:
Attachment A
Legal Description of the Property
LEGAL DESCRIPTION OF THE PROPOSED TRACTS FOR THE MARLINS STADIUM,
UNDER FORTIN, LEAVY, SKILES, INC SURVEY DRAWING 2008-093,
PROPOSED TRACT "B" r)F STADIUM PLAT
A portion of Tract "A" of ORANGE BOWL PLAT, according to the TENTATIVE PLAT thereof,
Number T-22945, as approved by the Miami -Dade County Department of Planning & Regulation at the
Plat Committee meeting on March 21, 2008 lying and being in the Northwest 1/4 of Section 2, Township
54 South, Range 41 East, City of Miami, Miami -Dade County, Florida, being more particularly described
as follows:
Begin at the Southwest corner of Block 37 of LAWRENCE ESTATE LAND CO'S SUBDIVISION,
according to the plat thereof, as recorded in Plat Book 2 at Page 46 of the Public Records of said Miami -
Dade County, Florida; thence North 01°46'36" West along the East right-of-way line of Northwest 16th
Avenue for 275.21 feet to a point of curvature; thence Northeasterly along a 25.00 foot radius curve,
leading to the right, through a central angle of 89°28'40" for an arc distance of 39.04 feet to a point of
tangency; thence North 87°42'04" East along the South right-of-way line of N, W. 6th Street, and the
Easterly extension thereof, for 154.23 feet; thence South 01°46'36" East for 664.99 feet to a point on a
circular curve, concave to the Southwest and whose radius point bears South 15°53'04" West; thence
Westerly along a 300.00 foot radius curve, leading to the left, through a central angle of 18°10'53" for an
arc distance of 95.20 feet to a point of tangency; thence South 87'42'11 " West along the North right-of-
way line of N.W. 4th street for 60.04 feet to a point of curvature; thence Northwesterly along a 25.00 foot
radius curve, leading to the right, through a central angle of 90°31'13" for an are distance of 39.50 feet to
a point of tangency; thence North 01 °46'36" West along said East right-of-way line of N.W. 16th Avenue
for 324.78 feet to the Point of Beginning.
Containing 116,546 square fejt, or 2.675 acres more or less.
PROPOSED TRACT "C" OF STADIUM PLAT
A portion of Tract "A" of ORANGE BOWL PLAT, according to the TENTATIVE PLAT thereof,
Number T-22945, as approved by the Miami -Dade County Department of Planning & Regulation at the
Plat Committee meeting on March 21, 2008 lying and being in the Northwest %4 of Section 2, Township
54 South, Range 41 East, City of Miami, Miami -Dade County, Florida, being more particularly described
as follows:
Commence at the Southwest corner of Block 37 of LAWRENCE ESTATE LAND CO'S SUBDIVISION,
according to the plat thereof, as recorded in Plat Book 2 at Page 46 of the Public Records of said Miami -
Dade County, Florida; thence North 01°46'36" West along the East right-of-way line of Northwest 16th
Avenue for 275.21 feet to a point of curvature; thence Northeasterly along a 25.00 foot radius curve,
leading to the right, through a central angle of 89°2$'40" for an arc distance of 39.04 feet to a point of
tangency; thence North 87°42'04" East along the South right-of-way line of N, W, 6th Street, and the
Easterly extension thereof, for 154.23 feet to the Point of Beginning of the hereinafter described parcel of
land; thence South 01'46'36" East for 664.99 feet to a point on a circular curve, concave to the Southwest
and whose radius point bears South 15053'04" West; thence Easterly along a 300.00 foot radius curve,
leading to the right, through a central angle of 02'48'16" for an arc distance of 14.68 feet to a point of
reverse curvature; thence Easterly along a 1122.00 foot radius curve, leading to the left, through a central
angle of 44'06'19" for an are distance of 863.70 feet to a point of compound curvature; thence
Northeasterly along a 25.00 foot radius curve, leading to the left, through a central angle of 66°21'31" for
an arc distance of 28.95 feet to a point of tangency; thence North 01 °46'29" West along the West right-of-
way line of N.W. 14th Avenue for 606.25 feet to a point of curvature; thence Northwesterly along a 25.00
foot radius curve, leading to the left, through a central angle of 90°31'27" for an arc distance of 39.50 feet
to a point of tangency; thence South 87°42'04" West along the South line of a 50 -foot Public Utility &
Emergency Access Easement, as shown on the plat NEW ORANGE BOWL SUBDIVISION, according
to the plat thereof, as recorded in Plat Book 153 at Page 72 of said Public Records of Miami -Dade
County, Florida for 845.88 feet to the Point of Beginning.
Containing 622,892 square feet, or 14.300 acres more or less.
Attachment B
Restrictive Covenant
The following covenants, restrictions and provisions shall constitute covenants running
with the land hereby conveyed (the "Property") for the term described in Section 5 below and are
intended for the benefit of the City of Miami, a municipal corporation of the State of Florida (the
"Grantor"), and shall be binding upon Miami -Dade County, Florida, a political subdivision of the
State of Florida (the "Grantee"), and its successors in interest to title in the Property or any
portion thereon. By accepting this Special Warranty Deed, Grantee agrees to be bound by such
covenants, restrictions and provisions:
1. Application: The restrictions contained herein will apply to any use or development
of the Property.
2. Limitation of Development: Development of the Property shall be limited to a
multi-purpose professional sports facility together with: (a) ancillary office space; (b)
ancillary retail, food and beverage space; (c) ancillary entertainment space; and (d)
ancillary plazas and other public areas.
3. Restriction: The property shall solely be used for the operation of a multi-purpose
professional sports facility, allowing only for the ancillary uses listed above.
4. Violation of Covenants and Remedy: grantee shall correct any violation of the
restrictions, covenants, conditions and agreements contained in this Deed within
thirty (30) days after grantor delivers notice to Grantee indicating the nature of such
violation. Grantor and Grantee agree that, as no measure of damage can be set for the
violation of the restrictions, covenants, conditions and agreements contained in this
Deed, the same may be enforced by injunction, or other methods of equitable relief,
including without limitation, specific performance.
Term: The restrictions, covenants, conditions and agreements contained in this Deed
are to run with the Property and shall be binding and shall remain in full force and
effect until the Operating Agreement, entered into between the City, County and
Marlins Stadium Operator, LLC on or about February _, 2009, which provides for
the operation and management of the Baseball Stadium, is terminated and the grantee
fails to secure a replacement professional sports franchise to use the Baseball Stadium
within three years after such termination.
6. Modifications; Amendments: The restrictions, covenants, conditions and
agreements contained in this Deed may only be modified by a written agreement
signed by the Grantor or its successor.
EXHIBIT F
NOT USED - INTENTIONALLY LEFT BLANK
Exhibit G; Public Infrastructure Scope and Budget
No.
Public Infrastructure Scope:
1
Water Main - new 12" line on 4 St between 14 and 16 Aves; tapping sleeves; valves; stub up water & fire to BBS
2
Water Main - new ductile 16" line on 6 St between 14 and 17 Aves; tapping sleeves; valves; stub up and
fire line into BBS; one 2" corporate stop for domestic water & one 8" tap for fire line North garages
3
Water Main- new ductile 12" line on 16 Av between 3 and 7 Sts; tapping sleeves; valves; one 2" tap for
domestic water & one 8" tap for fire line for South garages; two 12" taps for restaurants
4
Water - 3 fire hydrants on 4 St, 3 on 6 St, & 2 extras, with valves & 48 LF of 8" ductile Iron pipe
5
Isewer - replace 12" san sewer line on 6th St between 16 Av & Pump Station 55, including manholes
6
Sewer - new 12" san sewer line on neve " St between 14 and 16 Avs
7
Sewer - 8 sanitary laterals; 2 for 7'St; 2 fir 6 St; 2 for 3 St; 2 for 4 St garages
8
Sewer - sanitary sewer manholes
9
Stormwater - 48" and smaller pipes, manholes & outlets on 14, 15 & 16 Avs and 4 & 6 Sts, around stadium
10
Stormwater - install 3 new submersible pumps at Lawrence Canal Pump Station; 18 Av & 7 St
11
Stormwater - reline existing 48" stormwater pipe from stadium to Lawrence Canal outfall
12
Gas line - cutting and patching of road
13
Electricity - install underground lines, duct bank, manholes and cable from Latin Quarter Substation to Stadium
14
Electricity -mill overlay; Latin Qtr Substation SW 6 St & SW 17 Av to Stadium NW 4 St & NW 15 Av
15
Telecom utlity - location of telecom duct bank to be located at 16 Av & 4 St
16
Road construction - new 4 St between 14 and 16 Aves, including pavers
17
Road construction - new 6 St between 14 and 16 Aves, including pavers
18
Road construction - new 15 Ave between 3 & 4 and 6 & 7 Sts
19
Road resurfacing - mill overlay - 3 St between 12 & 17 Aves
26
Road resurfacing - mill overlay - 7 St between 12 & 17 Aves
21
Road resurfacing - mill overlay - 4 St between 16 & 17 Aves
22
Road resurfacing - mill overlay - 5 St between 16 & 17 Aves
23
Road resurfacing - mill overlay - 6 St between 16 & 17 Aves
24
Road resurfacing - mill overlay - 14 Ave between 7 & 2 Sts
25
Road resurfacing - mill overlay - 16 Ave between 7 & 2 Sts
26
Road resurfacing - mill overlay - 17 Ave between 7 & 3 Sts
27
Sidewalk, curb, and gutter replacement - south side of 7 St between 14 & 17 Aves
28
Sidewalk, curb, and gutter replacement - both sides of 4 Stbetween 16 & 17 Aves
29
Sidewalk, curb, and gutter replacement - both sides of 5 St between 16 & 17 Aves
30
Sidewalk, curb, and gutter replacement - both sides of 6 St between 16 & 17 Aves
31
Sidewalk, curb, and gutter replacement- both sides of 14 Ave between 7 & 2 Sts
32
Sidewalk, curb, and gutter replacement - both sides of 16 Ave between 7 & 2 Sts
33
Sidewalk, curb, and gutter replacement - north side of 3 St between 14 & 17 Aves
34
35
Sidewalk, curb, and gutter new - both sides of 15 Ave between 3 & 4 Sts
Sidewalk, curb, and gutter new - both sic i�s of 15 Ave between 6 & 7 Sts
36
Sidewalks, curb and gutter new - 4 St between 14 & 16 Aves
37
Sidewalks, curb and gutter new - 6 St between 14 & 16 Aves
38
Sidewalk, curb, and gutter- at Lawrence Canal pump station
39
Road lighting - 4 St between 14 & 16 Avs; alternating street sides; pole bases & conduit only
40
Road lighting - 6 St between 14 & 16 Avs; alternating street sides; pole bases & conduit only
41
Road lighting - 14 Ave between 3 & 7 Sts; alternating street sides; pole bases & conduit only
42
Road lighting - 16 Ave between 3 & 7 Sts; alternating street sides; pole bases & conduit only
43
Road lighting - 7 St between 14 & 16 Avs; alternating street sides; pole bases & conduit only
44
Road lighting - 16 Ave between 3 & 4 Sts; & 6 & 7 St, alternating street sides; pole bases & conduit only
45
Road lighting - 3 St between 14 & 16 Avs; alternating street sides; pole bases & conduit only
46
Road lighting - FPL furnish and install lighting poles, fixtures
47
Traffic signalization - up to 4 signals
48
Landscaping
49
Total.Construction
$16,591,125
50
Construction contingency 10% on Total Construction
$1,659,113
51
Construction Manager Fees and General Conditions
$2,657,429
62
Electricity - power lines - relocate power lines on 14 and 16 Aves W Allowance
$1,000,000
53
Road li htin - FPL furnish and install enhanced lighting oles, fixtures * Allowance
$200,000
54
Removal/dewatering of contaminated soils
$316,753
55
Owner's contingency
$1,450,000
56
Total Public Infrastructure Budget
$23',873,420
Note: as provided in the Construction Administration Agreement, the Stadium Developer has retained the
architect to provide all design services for the Public Infrastructure work. The Stadium Developer shall
contribute $1,000,000 to the Public Infrastructure Costs as provided for in Section 3.8(a) of the Construction
Administration Agreement.
*City to pay 100% of actual costs for this oortion of the Public Infrastructure Work to the extent the City requests the
design and construction of the enhancen;ent
** Additional items added to the Scope of Work will be funded by the requesting party.
Exhibit H - Stadium Project Budget
Hunt/Moss Stadium Construction Contract
CM Contingency and General Liability Insurance 20,224,000
CM Pre -Construction Fee 893,000
CM General Conditions and CM Fees 31,772,000
CM Payment and Performance Bond 2,283,000
CM Hard Construction Costs 370,328,000
Total Hard Costs 425,500,000
Soft Costs/Develoaer Continaencies
Architect, Owner's Rep, Misc. Consultants (i.e., Traffic, Environmental, ADA) 26,500,000
Advertising and Marketing 1,000,000
Legal Fees, Testing and Inspection, and Commissioning 8,350,000
Insurance, Professional Liability, and Builders Risk Insurance 11,850,000
Project Contingency @ 5% GMP Direct Cost 18,727,000
Scope Creep Between Schematic Design and Design Documents 1,500,000
Scope Creep Between Design Documents and Guaranteed Maximum Price 9,173,000
Named Storm Contingency 1,000,000
Soft Cost Contingency 1,800,000
Public Art 7,500,000
Permitting 2,100,000
Total Soft Costs & Contingency 89.500,000
Total Stadium Project Budget 515,000,000
CM = Construction Manager
CONSTRUCTION ADMINISTRATION AGREEMENT
Exhibit I - Draw Down Schedule
in $000
Construction
Month
Draw Down Amount
period
Month
Cumulative
Private
Public
Private
Public
Pre -con
December
2008
$8,269.0
$8,269.0
$0.0
Pre -con
January
2009
$1,327.7
$0.0
$9,596.7
$0.0
Pre -con
February
2009
$1,461.9
$0.0
$11,058.6
$0.0
Pre -con
March
2009
$164.5
$1,698.3
$11,223.0
$1,698.3
Pre -con
April
2009
$1,144.0
$865.3
$12,367.0
$2,563.6
Pre -con
May
2009
$1,148.0
$890.3
$13,515.0
$3,453.9
Pre -con
June
2009
$1,245.0
$2,077.4
$14,760.0
$5,531.2
1
July
2009
$1,232.6
$18,268.5
$15,992.6
$23,799.8
2
August
2009
$1,715.6
$4,332.3
$17,708.3
$28,132.0
3
September
2009
$1,310.6
$3,996.7
$19,018.9
$32,128.7
4
October
2009
$1,184.0
$5,499.8
$20,202.9
$37,628.6
5
November
2009
$383.5
$4,713.6
$20,586.3
$42,342.1
6
December
2009
$373.5
$5,190.0
$20,959.8
$47,532.1
7
January
2010
$373.5
$6,088.1
$21,333.3
$53,620.2
8
February
2010
$383.5
$6,173.4
$21,716.8
$59,793.6
9
March
2010
$363.5
$9,137.4
$22,080.3
$68,931.0
10
April
2010
$363.5
$15,571.4
$22,443.7
$84,502.4
11
May
2010
$373.5
$13,894.4
$22,817.2
$98,396.8
12
June
2010
$363.5
$12,548.6
$23,180.7
$110,945.5
13
July
2010
$363.5
$15,710.7
$23,544.2
$126,656.2
14
August
2010
$403.5
$16,009.7
$23,947.7
$142,665.9
15
September
2010
$373.5
$17,531.0
$24,321.1
$160,196.9
16
October
2010
$359.5
$18,132.3
$24,680.6
$178,329.2
17
November
2010
$348.5
$17,734.5
$25,029.1
$196,063.7
18
December
2010
$338.5
$18,067.2
$25,367.6
$214,130.9
19
January
2011
$345.6
$17,615.5
$25,713.2
$231,746.4
20
February
2011
$345.6
$17,796.4
$26,058.8
$249,542.8
21
March
2011
$345.6
$16,799.2
$26,404.5
$266,342.0
22
April
2011
$345.6
$24,038.3
$26,750.1
$290,380.4
23
May
2011
$355.6
$18,373.7
$27,105.7
$308,754.1
24
June
2011
$355.6
$17,914.5
$27,4613
$326,668.5
Page 1 of 2
CONSTRUCTION ADMINISTRATION AGREEMENT
Exhibit I - Draw Down Schedule
in $000
Construction
Month
Draw Down Amount
period
Month
Cumulative
Private
Public
Private
Public
25
July
2011
$345.6
$18,979.6
$27,806.9
$345,648.1
26
August
2011
$2,981.5
$15,351.9
$30,788.5
$361,000.0
27
September
2011
$20,916.8
$0.0
$51,705.2
$361,000.0
28
October
2011
$19,911.2
$0.0
$71,616.4
$361,000.0
29
November
2011
$19,049.5
$0.0
$90,665.9
$361,000.0
30
December
2011
$18,139.4
$0.0
$108,805.3
$361,000.0
31
January
2012
$17,771.9
$0.0
$126,577.2
$361,000.0
32
February
2012
$14,220.5
$0.0
$140,797.8
$361,000.0
33
March
2012
$5,054.8
$0.0
$145,852.6
$361,000.0
Post -con
April
2012
$1,693.3
$0.0
$147,545.8
$361,000.0
Post -con
May
2012
$1,534.8
$0.0
$149,080.7
$361,000.0
Post -con
June
2012
$872.0
$0.0
$149,952.7
$361,000.0
Post -con
July
2012
$770,1
$0.0
$150,722.8
$361,000.0
Post -con
August
2012
$770.1
$0.0
$151,492.8
$361,000.0
Post -con
September
2012
$670.5
$0.0
$152,163.4
$361,000.0
Post -con
October
2012
$553.9
$0.0
$152,717.3
$361,000.0
Post -con
November
2012
$670.5
$0.0
$153,387.8
$361,000.0
Post -con
December
2012
$612.2
$0.0
$154,000.0
$361,000.0
Summary per period:
Pre —construction
$14,760.0
$5,531.2
$14,760.0
$5,531.2
Construction months 1 - 12
$8,420.7
$105,414.2
$23,180.7
$110,945.5
Construction months 13 - 24
$4,280.6
$215,723.1
$27,461.3
$326,668.5
Construction months 25 - 33
$118,391.2
$34,331.5
$145,852.6
$361,000.0
Post - construction
$8,147.4
$0.0
$154,000.0
$361,000.0
Page 2 of 2
CONSTRUCTION ADMINISTRATION AGREEMENT
EXHIBIT 1-1
REIMBURSIBLE INTERIM COSTS — EXPENDITURE CATEGORIES
I - Project Costs (funded proportionally to County and City's funding contribution):
CM - Pre -Con Fee
CM - Hard Costs
CM - Misc
Testing and Inspection
Commissioning
Permitting
Insurance - PLL CLL (environmental)
Prof. Liability Program
Builders Risk
Wrap -Up
Insurance termination — minimum earned premiums and brokerage fee
II - Stadium Developer Paid Project (Soft) Costs
HOK, architect
Owner's Rep
Consultants & Legal Fees
III - County and City Soft Costs
County Owner's Rep
Legal Fees
Title Fees
Consultants
Surveys, Re -plating
A/E for MUSP
Environmental Insurance
EXHIBIT J
COUNTY PURCHASES
PART 1 GENERAL
1.01 REQUIREMENTS INCLUDED
A. Miami -.Dade County, being exempt from sales tax, shall directly purchase materials,
equipment, supplies and other items for this Work for the purpose of realizing a sales
tax savings. Such exemption to apply when Miami -Dade County is deemed to be the
ultimate consumer of such materials, equipment, supplies or other items, Materials,
equipment, supplies and other items as defined in the previous sentence and
meeting said conditions shall hereinafter be referred to as "Owner Purchased
Materials". "Owner" shall be defined as Miami -Dade County.
Stadium Developer and Construction Manager shall have full responsibility for
scheduling purchases, choosing vendors, determining quantities, providing detailed
material specifications for each purchase, obtaining vendor quotes for each
purchase, providing specific information on all terms for the purchase($), ensuring
pricing for ma Trials is F.O.B. destination (the job site), warranties, retainage,
coordinating delivery dates and delivery, unloading the items, ensuring the items
delivered are in conformance to the purchase order ("Purchase Order"), designating
and providing on-site storage, reviewing and approving invoices, obtaining releases
of claim, addressing all vendor performance issues and all other typical
administrative and management practices for a construction project. Stadium
Developer and Construction Manager, or his/her designee, shall be hereinafter
referred to as the "DV/CM".
B, Miami -Dade County will execute a Purchase Order to the vendor(s) designated by
the DV1CM in accordance with the Requisition submitted by the DV/CM, to purchase
the items directly from the vendor(s) exempt from sales tax. A general list of Items
that may be directly purchased via the method outlined herein and suitable for this
process Is included below in Section 2.01A. Any purchase made under this process
must be at least $10,000. The DV/CM shall employ and pay for a person or persons
necessary to coordinate this purchasing process with Miami -Dade County, The
Requisition for Purchase Order (the "Requisition" ) is a standard form (sample
attached hereto as Attachment 1 to this Exhibit J) that will contain all necessary
Items and descriptions as defined In this Exhibit J. Mlaml-Dade County shall issue a
Purchase Order reflecting the terms detailed by the Requisition.
C, In accordance with State of Florida Statute 119, all records, transactions and written
communications involving Miami -Dade County become public records and shall be
available to the public, upon request, without regard to who has custody of the
record, All parties participating in any transaction relative to this Exhibit J, including
vendors, are subject to this statute and shall be so advised by the DV/CM.
1.02 BID REQUIREMENT
A. Other than with respect to Owner Purchased Materials all other material, equipment,
supplies and other items shall be subject to applicable Florida sales tax in accordance
with applicable State laws and shall not be purchased through this process.
PART 2 PRODUCTS
2.01 PROPOSED PURCHASES BEING CONSIDERED BY MIAMI-DADE COUNTY— LIST
OF OWNER PURCHASED MATERIALS
Miami -Dade County is considering Owner Purchased Materials as those listed on Attachment
2 to this Exhibit J for tax-exempt direct purchase pursuant to the State of Florida,
Department of Revenue, Technical Assistance Advisement Letter. The list set forth in
Attachment 2 to this Exhibit J is a representation of the items that may be purchased in
relationship to the Work. items not included In the list below can only be added or modified
with prior authorization by the Board of County Commissioners ("Board"), Any additions
require, at minimum, a ninety (90) day lead time before they can be presented to the Board
for consideration,
PART 3 EXECUTION
3.01 PROCEDURES
A. The DV/CM shall execute or cause to be executed a Requisition, clearly specifying the
materials that Miami -Dade County will purchase directly under this process. All material
terms negotiated by the DV/CM with the vendor (Le., pricing, delivery date, payment
terms, warranti:.-, retainage, FOB), as more specifically described throughout this
Exhibit J, shall be noted on the Requisition. Miami -Dade County shall, within five (5)
Business Days of receipt of the Requisition, prepare its Purchase Order for the items and
the terms listed on the Requisition. Miami -Dade County shall deliver such Purchase
Order to the awarded vendor with a copy to the DV/CM,
"Business Days" specifically excludes holidays observed by Miami -Dade County and
weekends. A calendar showing holidays observed by Miami -Dade County will be
provided to the DV/CM for each calendar year, beginning with a 2009 calendar.
The five (5) Business Days assumes Miami -Dade County receives the Requisition clearly
delineating all the necessary specifications and terms in order to Issue a Purchase Order,
All Owner Purchased Materials shall be delivered FOB Destination by the delivery date
specified in the Purchase Order. The terms quoted by the vendor shall include shipping
and handling insurance and shall be stated as such on the vendor quote, Requisition and
Purchase Order. The DV/CM shall have confirmed with the chosen vendor the availability
of the requested items under the terms specified in the Requisition. Miami -Dade County
shall have no responsibility or obligation to obtain any additional confirmation on terms,
specifications or pricing with the vendors) for the items identified by the Requisition. The
five (5) Business Day period also assumes that the chosen vendor(s) is already a vendor
existing within the Miami -Dade County financial system at the time of receipt of the
Requisition. The vendor shall be strongly encouraged by the DV/CM to provide
Information to Miami -Dade County so that Automated Clearing House (ACH) payments
can be made to the vendor(s). Prior to submission of a Requisition, coordination and
verification of the vendor status within Miami -Dade County's financial system must take
place,
Requisitions that are submitted with incomplete information or for vendors that are not in
the financial system shall be promptly rejected by Miami -Dade County and returned to
DV/CM. The five (5) Business Day period shall commence again upon receipt of a
complete Requisition.
B. All vendors shall comply with the terms of the Purchase Order, including having a valid
vendor number. In addition, all vendors not registered in the Miami -Dade County financial
system shall comply with the requirements of being added to the system by providing a
signed W-9 form for the business entity under which they operate.
C. Miami -Dade County shall not be held liable for any loss or damage for delays caused by
others, such as non-compliance with the provisions of this Exhibit J, including acts of
nature, strikes, or other causes beyond the control or fault of Miami -Dade County.
D, Notwithstanding €he transfer of Owner Purchased Materials by Miami -Dade County to
DWCM's possession, Miami -Dade County shall retain title to any and all Owner
Purchased Materials, Retaining of such title by Miami -Dade County shall not relieve the
DV/CM of the responsibility for oversight of the Owner Purchased Materials,
E. DV/CM shall, on Miami -Dade County's behalf, purchase and maintain, or cause to be
purchased and maintained, builder's risk insurance pursuant to the requirements set forth
in the Construction Administration Agreement. Such insurance shall in an amount
sufficient to cover the replacement cost of the Owner Purchased Materials and shall
protect against loss or damage to the Owner Purchased Materials from the moment
Miami -Dade County gains title of such material upon delivery to the job site until such
time as Owner Purchased Materials are incorporated into the Work and are accepted.
Miami -Dade County shall be named as an additional insured on the policy and shall
receive any proceeds related to any claims on the Owner Purchased Materials,
F, Miami -Dade County shall not be liable for any costs associated with interruption or delay
in the Work or for any extra costs relating to the Work resulting from incorrect, incomplete
or damaged material, delay in the delivery of Owner Purchased Materials to the extent
such interruptions, delays or costs are due, In whole or in part, to acts of nature, strikes or
other causes beyond the control of Miami -Dade County or the actions of others. The
DV/CM has responsibility and accountability to resolve any and all performance Issues
with the vendors it selects to provide Owner Purchased Materials,
G. Pursuant to the Purchase Order, the vendor shall provide the required quantity of
materials at the price established in the vendor's quote to the Subcontractor or
Construction M^eager, less the sales tax associated with such price,
H. In addition to other responsibilities stated in this Exhibit J, the DV/CM shall also be
responsible for any and all matters related to the receipt of the Owner Purchased
Materials, including but not limited to visually inspecting and testing, if required by the
Construction Documents, to ensure Owner Purchased Materials conform to the Purchase
Order and the Drawings and Specifications, The DV/CM shall also be responsible for
acceptance of the Owner Purchased Materials at the time of delivery. The DV/CM shall
coordinate delivery schedules, sequence of delivery, loading orientation, storage of
Owner Purchased Materials and other arrangements typically required by construction
managers, Miami -Dade County shall assume all risk associated with, any actor
omission of Miami -Dade County, the Government Representatives or any employee of
Miami -Dade County that, under the direction of Miami -Dade County, impairs or
otherwise adversely affects any warranty or other contract right of Miami -Dade County
pursuant to the Purchase Order provided that such adverse matters related to Owner
Purchased Materials are not due to acts of nature, strikes or other causes beyond the
control of Miami -Dade County or are the results, in whole or in part, of the actions of
others, The DV/CM shall unload the Owner Purchased Materials and provide adequate
and secure storage to protect them from loss or damage from the time of delivery and
throughout installation into the Work up to the time when Stadium Developer accepts the
Work. It shall be the DV/CM's responsibility to provide all paperwork and evidence
necessary and to file any claims promptly to recover loss or damage to Owner Purchased
Materials. DWCM shall compile all paperwork and file all claims resulting from Owner
Purchased Materials lost, broken, vandalized or stolen while under the control of DV/CM.
If DV/CM discovers defective or ncn-conforming Owner Purchased Materials, then
DVICM shall not utilize or incorporate such Owner Purchased Materials into the Work.
Instead, DV/CM shall promptly notify the vendor of the defective or non -conforming
condition so as not to delay the Work.
I. All repairs, maintenance or damage repair calls shall be forwarded to and managed by
the DV/CM for resolution with the appropriate vendor. Notification to the vendor by
DV/CM shall Include rescinding of any invoices by the vendor for the defective or non-
conforming material. DV/CM shall immediately notify Miami -Dade County in the event
invoices had been already approved for payment. Additionally, DV/CM shall notify
Stadium Developer of such occurrence. DV/CM shall pursue repair or replacement of the
defective or non -conforming Owner Purchased Materials without any undue delay or
interruption to the Work.
If DV/CM fails tr )erform a visual Inspection and otherwise incorporates defective or non-
conforming Owner Purchased Materials into the Work, the conditions of which it either
knew or should have known by performance of a visual inspection, then DV/CM shall be
responsible for all costs of increased time and any other re -work costs resulting from the
incorporation of such defective or non -conforming Owner Purchased Materials into the
Work that Miami -Dade County and Stadium Developer would have avoided if DV/CM
complied with its responsibilities set forth in this Part 3, EXECUTION. No visual
inspection shall relieve DV/CM from responsibility for the failure of any Owner Purchased
Materials to conform to the requirements of the Purchase Order and the Drawings and
Specifications.
J. DV/CM shall maintain records of all Owner Purchased Materials it receives at the job site
as well as records of Owner Purchased Materials it incorporates Into the Work from the
stock of the Owner Purchased Materials. These records shall be current and readily
available upon request by Miami -Dade County or Stadium Developer, and shall be
reported and reconciled monthly comparing:
a. Owner Purchased Materials to be ordered pursuant to the Construction Schedule
b. Owner Purchased Materials Ordered, Received, and Paid
c. Owner Purchased Materials On Hand
d. Owner Purchased Materials Incorporated into the Work
The cost for any Owner Purchased Materials ordered and not utilized in the Work shall be
reconciled on a monthly basis, reported to Miami -.Dade County and, if returned to the
vendor or sold frr salvage, credited against the GMP under the Construction
Management Contract with a Change Order, with a corresponding credit to the County's
funding obligations under the Construction Administration Agreement,
K. In connection with each Purchase Order relating to Owner Purchased Materials used in
connection with work performed under the Construction Management Contract, a deduct
Change Order against the GMP under the Construction Management Contract will be
executed by Stadium Developer and DVICM no later than fifteen (15) Business Days
from the date of each Purchase Order, for the full amount of the purchase, plus the
amount of sales tax that would have been applicable to the purchase.
L. DV/CM shall obtain and manage all warranties and guarantees provided by vendor(s)
and manufacturor(s) for all Owner Purchased Materials required by the Construction
Documents.
M. Accurate and current invoices shall be submitted by the vendor(s) when the correct
material is received. Original invoices are to be sent to Miami -Dade County and to the
DV/CM with Miami -Dade County shown as the entity being invoiced, It is the policy of
Miami -Dade County that payment for all purchases by Miami -Dade County shall be made
in a timely manner and that interest payments be made on late payments. Miami -Dade
County shall not be held liable for costs associated with any interest payments or any
delay charges for late payments made as a result of Instructions, directions or late
approvals by the DV/CM. All payments due from Miami -Dade County and not made
within the time specified by this section shall bear interest on the unpaid balance from
thirty (30) days after the due date at the rate of one percent (I%).
On a weekly basis, DV/CM shall submit all vendor invoices on hand for Owner Purchased
Materials delivered to the Work site that are approved for payment, The approval by the
DV/CM to issue payment is demonstrated by a signature from the DV/CM on the original
vendor invoice signed adjacent to the words 'Approved for Payment'.
N. Invoices released and approved for payment by DV/CM shall be accompanied by all
appropriate documentation as described in this Exhibit J and shall be sent to Miami -
Dade County no later than seven (7) days after receipt from vendor(s) of a properly
completed and executed invoice, DV/CM is responsible for notifying and resolving non-
performance and defects on non -conforming items with each vendor.
O. In order to arrar,79 for prompt payment to the vendor, the DV/CM shall provide to Miami -
Dade County a list of Owner Purchased Materials that have been accepted and approved
for payment in the monthly payment requests accompanying the invoice(s) submitted for
payment. The invoice package shall include the summary as well as;
a. Documentation, such as a delivery ticket, bill of lading, packing slip, listing the
Purchase Order number under which such item(s) were purchased
b. The actual approved/signed invoice;
c. A copy of the applicable Purchase Order;
d, Signed authorization of acceptance of delivered items;
e. Partial or final releases of claim, as appropriate; and
f. Such other documentation as required by the Construction Administration
Agreement in order to effect payment.
Miami -Dade County will assign a Miami -Dade County employee as Miami -Dade County
Project Administrator ("MDCPA") to verify and audit the accuracy of the documentation
relating to Owner Purchased Materials. Within seven (7) Business Days of receipt of the
invoice including the above -referenced documents, the MDCPA will determine whether
the invoice is payable and prepare a voucher for approval and submission to Miami -Dade
County's Finance Department. Miami -Dade County's Finance Department shall release
an ACH payment or prepare and release a check drawn to the vendor based upon the
receipt of data provided. This ACH payment or check shall be released and remitted
directly to the vendor. Miami -Dade County shall have twenty five (25) calendar days to
process invoices beginning on the date the County receives a proper invoice for goods
received that has been authorized for payment by the DV/CM. Miami -Dade County shall
provide the DV/CM a monthly report as to the amount, date, payee and check
number/ACH confirmation number, as applicable, of all such direct payments to vendors.
In addition, Miami -Dade County will promptly notify DV/CM in writing of any Instances
when non-payment or less than full payment is made on an Invoice, specifying all
reasons for withholding payment (or partial payment) unless such request to withhold
payment was initiated by DV/CM. All requests to withhold payment by DV/CM must be
submitted in writing to Miami -Dade County,
Q. Miami -Dade County is responsible to make payments to vendors for the Owner
Purchased Materials. If Miami -Dade Countyfalls to make payments In accordance with
this Exhibit J fo my reason other than the fault or neglect of the vendor or DV/CM, then
Miami -Dade County will be liable for any increased costs or expenses (including
schedule acceleration costs) caused by such failure. Claims, delays charges and interest
for non-payment to vendors that arise from the actions or directions of DV/CM including
any actions that are not caused or under the control of Miami -Dade County shall be the
responsibility of DV/CM. Owner Purchased Materials shall be funded from the County
Account and the City Account, as applicable, pursuant to the terms of the Construction
Administration Agreement, DV/CM shall identify to the County and the City those Owner
Purchased Materials that will not be purchased until later in the construction process,
which identification shall be sufficiently in advance so as to assure that the City Account
and the County Account will maintain adequate reserves to fund such Owner Purchased
Materials as when and due. Any reserves so established shall be deemed funds
disbursed for purposes of determining when the Stadium Developer must deposit funds
Into the Stadium Developer Account pursuant to Section 6.4(c) of the Construction
Administration Agreement, If no reserves are available to fund the requested materials,
then Miami -Dade County may withdraw funds from the Stadium Developer Account by
submitting to the holder of such account a funding request in the form of Exhibit L to the
Construction Administration Agreement, or pursuant to such other procedures as may be
required by the terms of the Team Affiliate's financing, subject to the Government Parties'
having satisfied their respective funding obligations pursuant to Article VI of the
Construction Administration Agreement. Miami -Dade County shall simultaneously
provide a copy of any such funding request, and the supporting documentation required
thereby, to the Stadium Developer. Miami -Dade County shall have no obligation to
submit a purchase order or to purchase the requested materials until it is in receipt of
funds in an amount sufficient to fund the purchase of such materials.
R. Construction Man, .ger agrees to indemnify and hold harmless Miami -Dade County and
Developer from any and all claims resulting from non-payment to vendors that arise from
the actions or directions of Construction Manager.
S. The DV/CM shall be responsible for obtaining partial or final release of claim waivers to
be submitted, as applicable, when payment of invoices are requested. All waivers, other
than the final waivers, shall be conditioned on payment of the Invoice submitted. DV/CM
must ensure that all terms agreed upon with selected vendors are consistent with this
Exhibit J. Vendor agreements with the DV/CM and Stadium Developer shall be clear in
stating that partial or final releases of claim not being provided along with invoices for
payment shall render the invoices not payable and shall be considered the fault of others
and not the fault of Miami -Dade County,
T. The provisions of the Community Small Business Enterprise ("CSSE") Program Goals
(as included in the Construction Documents) shall be applicable to all of the Owner
Purchased Materials. The CSSE participation measures apply to the complete contract
award amount, which includes the purchases by MiamkDade County as outlined in this
Exhibit J. Purchases executed by Miami -Dade County as outlined in this Exhibit J
which are installed and/or utilized by CSBE's that have an executed subcontract
agreement including materials and installation, shall be reported as contributing to the
participation goals.
U. At the end of the Work, any refund for surplus Owner Purchased Materials returned to
vendors, plus applicable sales tax savings amount, shall be credited to the Cost of the
Work by credit Change Order to the Construction Management Agreement. Salvage
materials shall be the property of Mlami-Dade County and stored or removed from the
Work site by DV/CM at Stadium Developer's direction.
Stadium Developer, Construction Manager and Miami -Dade County shall perform their respective
obligations in a timely and expeditious manner, consistent with the Construction Schedule and
this Exhibit J.
ATTACHMENT 1
REQUISITION FOR
PURCHASE ORDER
Page I
DV/CM
Name
Address
The DV/CM have reviewed the Contract specifications and the requested materials/product description within this
proposed direct materials purchase, In order to realize a State of Florida Sales Tax Savings. We hereby acknowledge that
the materials/products stated are in compliance with the Contract Documents.
Acknowledged By:
Name/Title:
Company Name:
Date:
The DV/CM and its Subcontractors shall insure that the directly purchased materials conform to the Specifications and
Drawings, as applicable as described In item
Subcontractor Information
Signature: Date:
Printed Name:
Title:
Company Name: _
Sub -subcontractor Information
Signature: Date:
Printed Name:
Title:
Company Name:
Construction Managers Information
Signature: Date:
Printed Name:
Title:
Company Name:
Project Manager
TERMS TO BE ADDED TO PURCHASE ORDER
1. Non -conforming material will be returned to the vendor at the vendor's risk and expense.
2. In the event the vendor defaults on the delivery date, the buyer may procure the goods from other sources and
charge the vendor as liquidated damages any excess cost or damages occasioned thereby.
3. Non -conforming, defective or damaged goods must be immediately replaced by the date indicated be the buyer.
Failure to remedy by the required date shall render the vendor in default and the buyer may procure the goods
from other sources and charge the vendor as liquidated damages any excess cost or damages occasioned
thereby.
For the price of (exclusive of sales tax but freight) material only
$
Sales tax at a rate of 6.5% on first $5,000, 6% on remainder
$
Additional Cost, i.e. Bond, etc.
$
Total of Material and Sales Tax is
$
MARLIN STADIUM
REQUISITION FOR
PURCHASE ORDER
Note: Please attach Quotation with all backup documents.
VENDOR SUBCONTRACTOR
FEIN:
Name:
Address:
Ph No.:
Contact:
Fax No.:
P.Q. Release No.:
FEIN:
Name:
Address:
Ph No.:
Contact:
Fax No.:
Authorized by:
Date:
Line No. QuantityItem r- ..
.- ManufacturerP
Delivery
"* The above referenced submittal No.(s) does not relieve the Construction Manager,a�
Subcontractor, and the supplier from the responsibility of providing the materials In
accordance with Contract documents, drawings & Specifications.
Materials / Supplies will be delivered on: AS FOB: Job Destination. All vendors to provide
RELEASED shipping In accordance with contract
documents.
PAYMENT TERMS: Net 25 days from receipt
of proper Invoice by Miami Dade County after Fee of % of cost of materials for
goodsimaterials have been received and returning unused or excess materials. Credit
accepted and Invoice has been authorized by to be given to Miami -Dade County.
DV/CM.
Non -conforming material will be returned to the Venue for legal proceedings, if any, shall be In
vendor at the vendor's risk and expense, Miami -Dade County, Florida
s
0, 15,
pow,
State Sales Tax Amount @
6%
County Sur -tax @ 1 % up t0
5,000
Additional Cost, i.e. Bond,
etc.
In the event the vendor defaults on the delivery date, the buyer may procure the goods from other sources and charge the vendor as liquidated damages
any excess cost or damages occasioned thereby,
Non -conforming, defective or damaged goods must be Immediately replaced by the date Indicated be the buyer. Failure to remedy by the required date
shall render the vendor In default and the buyer may procure the goods from other sources and charge the vendor as liquidated damages any excess cost
or damages occasioned thereby.
In accordance with State of Florida Statute 11g, all records, transactions, related documentation and written communications involving Mlaml-Dade
County become public records and shall be available to the public, upon request, without regard to who has custody of the record. All parties
participating in any transaction relative to this Exhibit J, including vendors, are subject to this statute and shall be so advised by the DV/CM.
Senior Procurement Agent Date
DO NOT WRITE BELOW THIS LINE, DV/CM OFFICE USE ONLY
Senior Project Manager Date
Director of Administration Date Director Date
Senior Project Manager Date
ATTACHMENT 2
1. W Gravel Sub Base Material
2. Access Doors
3, Access Flooring
4. Acoustical Ceilings
5, Acoustical Wall Panels
6. Air Handling Equipment
7. Air Handling Units
8. Appliances
9. Asphalt/Concrete Paving
10. Audio Equipment
11. Pile Grout
12. Pile Reinforcing Steel
13, Boilers
14, Building Controls System Equipment
15. Carpet
16. Cast -In -Place Concrete
17. Caulking & Sealants
18. Cold Formed Metal Framing
19, Concrete Material
20. Concrete Pavers
21, Concrete Reinforcing Steel
22, Concrete Unit Masonry
23, Cooling Towers
24. Curtainwall Aluminum Extrusions
25, Curtainwall Glass
26. Domestic Water Piping
27, Domestic Water Pumps
28, Door Hardware
29. Electrical Conduit
30, Electrical Disconnects
31. Electrical Switchgear & Transformers
32. Electrical Wiring
33. Elevators (As applicable to State Tax Laws)
34, Emergency Generators
35. Epoxy
36, Escalators (As applicable to State Tax Laws)
37, Exhaust Fans
38, Exhaust Hoods
39. Expansion Joint Cover Assemblies
40. Expansion Joint Covers
41. FFE Equipment
42. Field Wall Pads
43. Finish Hardware
44. Fire Alarm Equipment& Wiring
45, Fire Extinguisher Cabinets/Extinguishers
46, Fire Protection Sprinkler Heads
47. Fire Protection Sprinkler Pipe
48, Fire Protection Valves and Tamper Switches
49. Fire Pumps & Controllers
50, Fire Stopping Material
51. Fireproofing Material
52. Flag Poles
53. Flush Wood Doors
54. Food Service Equipment (Concessions Klosks)
55. Furnishings, Fixture and Equipment Package
56. Grout
57. Gypsum Board
58. Hollow Metal Doors and Frames
59, Hydrotherapy Equipment
60. Irrigation equipment and piping
61. Irrigation Piping and Controllers
62. Irrigation Pumps
63. Landscaping
64. Laundry Equipment
65, Lighting Control Equipment
66. Lighting Fixtures
67. Loading Dock Equipment
68. Lockers
69, Louvers
70. Masonry
71. Masonry Grout
72, Masonry Reinforcing Steel
73, Mechanical Insulation
74, Mechanical Piping
75, Mechanidal Pumps
76. Mechanical Valves
77, Metal Deck
78, Metal Wall Panels
79, Mirrors
80, Motor Starters
81. Operable Mechanization Motors
82, Overhead Doors
83, Paint
84. Plumbing Fixtures
85. Plumbing Piping
86, Plumbing Valves
87. Precast Concrete
88. Precast Masonry Headers
89. Precast Seating (As Applicable by State Tax Laws)
90. Pumps
91. Reinforcing Steel
92, Resilient Flooring and Accessories
93, Roofing Materials
94, Sanitary Piping
95, Sanitary Sewage System
96. Saunas
97, Site Accessories
98, Site Lighting
99, Sitework Concrete
100. Sitework Concrete Structures & Covers
101. Sitework Valves
102. Sound and Communications Equipment
103. Stadium Seats
104, Stage Lighting Controls
105. Steel Deck
106. Steel Joists
107. Stone (Exterior and Interior)
108, Storefront Door System
109. Storm / Flood Protection at Windows and Doors
110, Storm Drainage Wells
111, Storm Water Piping
112, Structural Steel
113, Switchgear & Transformers
114, Thermoplastic Membrane Roofing
115. Ticket Windows
116, Tile & Grout
117. Toilet Accessories
118. Toilet Partitions
119. Trees
120. Tube Railing / Misc. Metals
121, Variable Frequency Drives
122. VAV Boxes
123. Walk -In Freezers & Coolers
124. Waterproofing Material
125. Wheel Chair Lifts (As applicable to State Tax Laws)
126. Windows
EXHIBIT K (REVISED)
STADIUM BUDGET INCLUDING RELATED COUNTY AND CITY COSTS BY SOURCE
OF FUNDING
Stadium
Private Contribution*
Professional Sports
Tax/Tourist Development Tax
Financing
County Convention
Development (CDT) Tax
Financing
City CDT Tax Financing
General Obligation Bonds
Total: Stadium Facility
Private Contribution**
County CDT Cash Carryover
County Financing***
County Interest Earnings
County Water/Wastewater
City Various Sources
T
154,000,000
237,500,000
50,000,000
$347,500,000 $154,000,000
1,630,000
9,119,000 2,000,000
6,703,000
3,184,000
13,500,000
$13,500,000
12,587,000
154,000,0
237,500,0001
60,000,000
13,500,000
515,000,0
1,000,000
1,630,000
11,119,000
6,703,000
3,184,000
12,587,000
$20,636,000 $3,000,000 $12,587,000 $36,223,0001
*$35 million of the $154 million Team Funding Contribution is funded in part through annual payments to the County, beginning with a $2.3
million payment in the first Operating Year and increasing 2 percent per year, for each Operating Year during the initial thirty-five year term of
the Operating Agreement
**The Stadium Developer has retained the architect (HOK) to provide all design services for the Public Infrastructure work. The Stadium
Developer shall contribute $1,000,000 to the Public Infrastructure Costs as provided for in Section 3.8(a) of the Construction Administration
Agreement.
***Includes $9.119 million of CDT financing and $2 million of debt offset by Team rent payments
Exhibit L
FORM OF FUNDING REQUEST
ITo be typed on Stadium Developer Letterhead]
Stadium Developer Requisition Certificate
Payment No.
[Name and address of Government Representative for the County Account]
[Name and address of Government Representative for the City Account]
[Name and address of Account Holder for the Stadium Developer Account]
Ladies and Gentlemen:
This Requisition (;ertificate is delivered by Marlins Stadium Developer, LLC, a
Delaware limited liability company (the "Stadium Developer"), pursuant to the provisions of
the Construction Administration Agreement, dated , 2009 (the "CAA"), by
and among the 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
the Stadium Developer. All capitalized terms not defined herein shall have the meaning ascribed
to those termsin the CAA, as the same may amended from time to time.
The Stadium Developer hereby requests disbursement in the aggregate amount of:
$ for Stadium Project Costs; or
$ for Public Infrastructure Costs
The requested disbursements should be drawn from the following Funding Accounts in
the following amounts:
hereto.
Account: Disbursement Amount:
County Account for Stadium Project Costs $
County Account for Public Infrastructure Costs $
City Account for Stadium Project Costs $
City Account for Public Infrastructure Costs $
Stadium Developer Account $
The disbursement(s) should be made to the payee(s) shown on Schedule 1 attached
The Stadium Developer hereby certifies:
L-1
(1) Each item for which payment or reimbursement is herein requested was incurred
in connection with the Baseball Stadium Project or the Public Infrastructure, as the case may be,
and are costs eligible for payment or reimbursement in accordance with the CAA;
(2) All amounts have been paid by Stadium Developer to the payees listed on
Stadium Developer's previous funding requisitions, and Stadium Developer has received
evidence that all persons and entities listed on Stadium Developer's previous funding requisitions
(including the Construction Manager and its subcontractors, as applicable) have been paid the
respective amounts listed on the previous funding requisitions;
(3) With respect to the Stadium Project Costs, attached hereto as Schedule 2 are
copies of the following documents: (a) with respect to disbursement requests relating to work or
services performed under the Construction Management Contract, (i) the Application for
Payment of the Construction Manager and (ii) all documentation required by the Construction
Management Contract to accompany the Application for Payment; and (b) with respect to
disbursement requests relating to any other Stadium Project Costs, (i) the invoice or payment
application of the payee for whom payment is being requested and (ii) all documentation
required by the payee's contract to accompany the invoice or payment application;
(4) With respect to the Public Infrastructure Costs, attached hereto as Schedule 3 are
copies of the following documents: (a) with respect to disbursement requests relating to work or
services performed under the Construction Management Contract, (i) the Application for
Payment of the Infrastructure CM and (ii) all documentation required by the Construction
Management Contract to accompany the Application for Payment; and (b) with respect to
disbursement requests relating to any other Public Infrastructure Costs, (i) the invoice or
payment application of the payee for whom payment is being requested and (ii) all
documentation required by the payee's contract to accompany the invoice or payment
application; and
(5) Attached hereto as Schedule 4 is a Summary of Costs and Disbursements setting
forth budgeted amounts, previous draw requests made and current draw requests for the Stadium
Project Costs and the Public Infrastructure Costs .
L-2
Signature page to Stadium Developer Requisition Certificate
Payment No.
Dated this day of , 2008.
MARLINS STADIUM DEVELOPER, LLC
By:
Name:
Title:
L-3
SCHEDULE 1 TO STADIUM DEVELOPER REQUISITION CERTIFICATE
Schedule of Amounts Due and Pavable
Note: Per Section 5.2(d) of the CAA, payments made to the Construction Manager for its
performance of construction management services (i.e., management fee, profit, office overhead,
general conditions performed or provided by the Construction Manager as part of its construction
management services and cost of work that is self -performed by the Construction Manager),
shall be made by a dual party check (or other dual party payment method) in the name of the
Stadium Developer and the Construction Manager. Where appropriate, such dual party
payments are noted in the payee column below.
A. Baseball Stadium Proiect
Name and Address of Payee Payment Requested Work /Services Performed
B. Public Infrastructure
Name and Address of Pgyee Payment Requested Work /Services Performed
L-4
SCHEDULE 2 TO STADIUM DEVELOPER REQUISITION CERTIFICATE
Attached are the pay applications, invoices and related backup documentation relating to work
performed or services rendered in connection with the Baseball Stadium Project. Also attached
is the affidavit of the Construction Manager certifying that it has paid in frill all subcontractors
listed in its previous Application for Payment.
L-5
SCHEDULE 3 TO STADIUM DEVELOPER REQUISITION CERTIFICATE
Attached are the pay applications, invoices and related backup documentation relating to
work performed or services rendered in connection with the Public Infrastructure. Also attached
is the affidavit of the Construction Manager certifying that it has paid in full all subcontractors
listed in its previous Application for Payment.
L-6
SCHEDULE 4 TO STADIUM DEVELOPER REQUISITION CERTIFICATE
SUMMARY OF COSTS & DISBURSEMENTS
Stadium Project Costs
Budgeted Amounts
Net Change by Change
Orders
Contract Sum
County Procurements
Adjusted Available Budgeted
Amts
Total of Previous Draws
Total of Previous Retainage
Amount Available
Current Draw Request
Less: Retainage
Current Payment Due
Budgeted Amounts
Net Change
Contract sum
Total of Previous Draws
Total of Previous Retainage
Amount Available
Current Draw request
Less: Retainage
Current Payment Due
COUNTY
Stadium Project Costs
$T
COUNTY
Public Infrastructure Costs
CITY
Stadium Project Costs
W
Public Infrastructure Costs
CITY
Public Infrastructure Costs
L-7
DEVELOPER
Stadium Project Costs TOTAL
$ $
TOTAL
$
W
EXHIBIT N
PRELIMINARY MILESTONES SCIIEDULE
Activity Activity Early Early
2008 2009 2010 2 20 12
ID Description Start Finish
1
IIIIIIIaiIIIlllillllllllllll IIItlUIIuIIiIL'illlnllnlllli111
01111111llIII11I1111111101111!"011111nIIIIII;YnIIIn11111911 In;III9111111mum lllllnllll1111111111111nlflln9lnnillm mnonym! lllllllllll
M0230 MUSP PROCESS 21JUL08A 29MAY09
musPPRocEss
M0250 RECONCILE SD DRAWINGS DOCUMENTS 09DEC08A
10
ECONCILESD DRAWINGS! DOCUMENTS
DESIGN AND DEVELOPMEF DRAWINGS (DDs);
®ISSUE PERMIT PACK C FOUNDATIONISITE UTILITY
1:
f CITY/COUNTY REVIEdNPERMIT PlC1 FON/SITE.UTILITY .
4ISSUEPERMITz <2sTRucruRaL
M0240
DESIGN AND DEVELOPMENT DRAWINGS (DDs) 09DEC08A 09MAR09
M0320
ISSUE PERMIT PACK 1 : FOUNDATION/SITE UTILITY 01APRO9
M0320A
CITYICOUNTY REVIEW PERMIT PK 1: FDN/SITE UTILITY 01APR09 OIJUN09
M0330
--i
ISSUE PERMIT PACK 2:STRUCTURAL 01JUN09
M0330A
CITYICOUNTY REVIEW PERMIT PACK 2 01JUN09 31JUL09
=CfTY/COUNTY REVIEW PERMIT PACK 2 y
*GMP ESTABLIS({ED
ONSTRUCT(ON DUCUMENTS
®ISSUE PERMIT SID PACK 3 ; BALANCE
17clrY/COUNTY REVlE1N PERMIT RACK 3
M030d
GMP ESTABLISHED 21SEP09
M0290
CONSTRUCTION DOCUMENTS 1OMAR09 108DEC09
M0340
ISSUE PERMIT BID PACK 3: BALANCE 08DEC09
M0340A CITY/COUNTY REVIEW PERMIT PACK 3 08DEC09 08FEB10
r�
12JAN09 01APR10
�s
0001 NOTICE TO PROCEED NEW STADIUM CONSTRUCTION JOIJUL09
.NOTICE TO PROCEED'NEW ST%>OIUM COAISTRUCiI;ON
;®PROCURE PERMIT$ TO COMMENCE CONSTRUCTION; ,
OSITE PREPARgT]ON& EARTHWORK
CONCRETE FRAME:
O:OF PANEL ASSENIBL
0101 PROCURE PERMITS TO COMMENCE CONSTRUCTION OIJUL09
1200 SITE PREPARATION & EARTHWORK 01JUL09 01SEP09
1025 CONCRETE FRAME 120AUG09 12SEP11
1080 ROOF PANEL - ASSEMBLY _ 16JUL10 170CT11
1170 BUILD -OUT INTERIORS 02AUG10 10FEB12
BUILD -OUT INTERIOR
iNSTALL PLAYING FIELD
COMMISSION BASE BUILD•iN
1110 INSTALL PLAYING FIELD 04JAN12 02MAR12
1180 COMMISSION BASE BUILDING 31OCT11 29MAR12
ME
NONE= MEN=
5570 OPERATIONS OFFICE AREA AVAILABLE 09JAN12
OPERATIONS OFFICE AREA AVAILABLE
Stan Date 19AUG07
0122 Sheet 1 of 2
Finish Date 30NOV12
Data Date 08JAN09
Run Date 28JAN09°8:28
FLORIDA MARLINS
PRELIMINARY MILESTONES
�-
SCHEDULE:....
CY#t�'C7rCCZ]ON W"rtrvF
C Primavera Systems, Inc.
Activity
ID
5500
Activity
Descri P tion
CONCESSIONAIRE OFFICE AVAILABLE
Early
Start
122FEB12
Early
Finish
2012
111111111111HI III
2'4"0$"„"20,ou,9iuno,uniwn2,ioi
�0,,i;��� 1a11tl11201q�nannnnnn wn=nomau m,feg, 9,,q
CONCESSIONAIRE OFFICEAVAILABL;
FOOD SERVICE AREAS AVAILABLO
SCOREBOARD CONTROL ROOM AVAILABLO
MARLINS OFFICE AVAILABLO
6000
FOOD SERVICE AREAS AVAILABLE 22FEB12
6500
SCOREBOARD CONTROL ROOM AVAILABLE 22FEB12
5000
MARLINS OFFICE AVAILABLE 15MAR12
9999
PUBLIC.
5565
SUBSTANTIAL COMPLETION
INFRASTRUCTURE
CIVIL DESIGN -PUBLIC INFRASTRUCTURE
V08A
34MAR12
30APR49
PIP
SUBSTANTIAL COMPLETIOI*!
7pCIVIL DESIGN -;PUBLIC INFRASTRUCTURE
DESTABLISH'GMP INFRASTRUCTURE
5560 ESTABLISH GMP- INFRASTRUCTURE 08MAY09 15JUN09
� e
D1JUN09 29FEB12
PA RKING
a
6510
GARAGE
SELECTION OF DESIGN TEAM
02FEB09*
27FEB09
P2
DSELECTION OF°DESIGN TEAM
1>SELECTION OF CONSTRUCTION TEAM '
=P01 CONSTRUCT1oN DOCUMENT DESIGN DEOVERABLE'
=H'00% coNST13uCTWN DBCu.MENt DESIGN RELIVE”
(]ESTABLISH GMF ;
F . . �P4PARKING GARAGE (SOUTH
P'3 P'ARKIN'G GARAGE {SOU
ARKING GARAGE (NORTH EASE
f PARKING GARAGE (NORTH*ES
6520 SELECTION OF CONSTRUCTION TEAM 02MAR09 30MAR09
6525 50% CONSTRUCTION DOCUMENT DESIGN DELIVERABLE � 02MAR09 29MAY09
6540 104% CONSTRUCTION DOCUMENT DESIGN DELIVERABLE 01JUN09 131A0009
6550 ESTABLISH GMP 07OCT49 340CT09
6575 �P4 PARKING GARAGE (SOUTH EAST) 03MAY14
6580 P3 PARKING GARAGE (SOUTH WEST)
01JUL10 I31 MAR11
6585 P2 PARKING GARAGE (NORTH EAST)
03JAN11 I34DEC31
6590 P1 PARKING GARAGE (NORTH WEST)
01 MAR11 28FEB12
staaUate 1SA0007 0122
finish Date 30NOV12
Data Date 08JAN09 FLORIDA MARLINS
Run Date 26JAN0908'28 PRELIMINARY MILESTONES
SCHEDULE
O Primavera
Sheet 2 of 2
EXHIBIT O
In addition to the requirements already specified throughout the Construction
Administration Agreement, and specifically Section 5.2 thereof, the Construction
Management Contract shall include the following requirements:
The Construction Manager shall comply with all Applicable Laws, including but
not limited to the Florida Building Code, Chapter 119 of the Florida Statutes
regarding Public Records laws, the State of Florida and the County's Prompt
Payment Act, the County's Inspector General requirements set forth in the
Construction Administration Agreement, the County's Art in Public Places
requirements set forth in the Construction Administration Agreement, and the
County's Sustainable Buildings set forth in the Construction Administration
Agreement and LEED certification requirements set forth in the Construction
Administration Agreement.
2. Provided that the County and City have complied with their funding and payment
obligations under Construction Administration Agreement the Construction
Manager shall release and indemnify the County and the City and hold the County
and the City harmless from any and all claims, actions and causes of action
relating to the ^rformance of the Construction Management Contract. The
Construction Manager's indemnification requirements as to the County and City
in the Construction Management Contract shall be substantially similar to those
of the Stadium Developer contained in the Construction Administration
Agreement, The Construction Manager shall include in any and all subcontracts
used to perform the Work provisions requiring the subcontractors to release,
indemnify and hold the County and the City harmless from any and all claims,
actions and causes of action and that no subcontractor shall make a claim against
the County or the City provided that the County and City have complied with
their funding and payment obligations under Construction Administration
Agreement,
3. The Construction Management Contract shall state that the County and the City
shall be express third party beneficiaries of that Contract. The Construction
Manager shall acknowledge the Stadium Developer's obligations to the County
and the City contained in the Construction Administration Agreement.
4. The Construction Management Contract shall provide that it may be assigned to
the County without the consent of the Construction Manager. In any and all
subcontracts used to perform the Work, the Construction Manager shall include
provisions for the assignment of the subcontract(s) to the County in the event the
Construction Ni .nagement Contract is terminated by the Stadium Developer,
5. The Construction Manager shall agree to make available to the County and the
City, through the Stadium Developer, any and all information, documents and
reports which may reasonably be required or requested by the County or the City
and otherwise to cooperate with the County and the City to meet any applicable
deadlines or milestones set forth in the Construction Administration Agreement.
The Construction Manager shall further agree to respond, through the Stadium
Developer, to inquiries from the Board of County Commissioners and/or the City
Commission. Notwithstanding the foregoing, it is understood that all requests
must be made through the Stadium Developer.
6. With respect to the Public Infrastructure Work, the Construction Manager shall
provide to the County and the City, through the Stadium Developer, any and all
information reasonably requested by the County or the City in connection with the
procurement methodology planned or used and bids or offers received or
accepted.
7. With respect to the Public Infrastructure Work, the Construction Manager shall
offer to the County and the City, through the Stadium Developer, value
engineering and time recovery recommendations to maintain the Work on time
and within budget.
With respect to the Public Infrastructure Work, the Construction Manager shall at
all times maintain separate records and separate billing from that of the Baseball
Stadium Work.
8. In accordance with Florida Statutes Section 287.055, the Construction Manager
shall agree that no professional services (as defined in Florida Statutes Section
287.055) shall ', ; performed by the Construction Manager and/or reimbursed
from the County Account or the City Account.
9. Upon reasonable notice to the Construction Manager, the Construction Manager,
through the Stadium Developer, shall agree to make available to the County and
the City for audit and inspection all cost information relating to the Work.
10, The Construction Manager shall be required to obtain the payment and
performance bonds set forth in Section 3.8(f), 5.2(d) and 5.2(e), of the
Construction Administration Agreement, respectively.
Legend
City of Miami
�._.._. City of Miami Boundary
® Neighborhood Development Zone
Orange Bowl Site
Miami -Dade County
ENMiami Dade - Targeted Urban Areas
Miami Dade Empowerment Zones
Miami Dade Enterprise Zones
CDBG Eligible Block Groups
AFFIDA'V'IT
STATE OF FLORIDA )
) SS.
MIAMI-DADE COUNTY ) ,
The undersigned, a duly authorized representative of Double Play Company ("Team
Owner"), represents that Team Owner owns the controlling interest ("Controlling Interest") in
the Florida Marlins, L.P., a Delaware limited partnership ("Team"), and as such has sole decision
making authority with regard to the Team.
In connection with the issuance by Miami -Dade County, Florida (the "County") of bonds
(the "Bonds") to finance the cost of construction of a new baseball stadium for use by the Team,
the Team Owner represents to the County that it does not presently intend to sell or otherwise
divest itself of the Controlling Interest in the Team for a period of five years from the date hereof
and acknowledges that the County is issuing the Bonds in reliance on this representation.
FURTHER AFFIANT SAYETH NAUGHT.
IN WITNESS WHEREOF, I set my hand this awf�ay of a/ c , 2009.
Double PlayCompan
By: _
I
Name ol si wo
Tit /rur 41
Subscribed and sworn to before me, a notary public, this la day of veh '2009.
4No Publ'
My commission Expires:
.'}�•., LISA R. MILK
P MY COMMISSION N DD 807223
E EXPIRES: October 22, 2012
gadedTnrdNOWYPubBCUndenvdters
CINCINNATI/74589.1
Officer's Certificate
The undersigned, being the Senior Vice President, Chief Financial Officer, Treasurer and
Assistant Secretary of Double Play Company, a Nova Scotia unlimited liability company (the
"Company"), the managing general partner of Florida Marlins, L.P. ("FMLP"), which is the sole
member of Marlins Stadium Developer, LLC ("MSD") and Marlins Stadium Operator, LLC
(collectively with the Company, FMLP and MSD, the "Marlins Entities"), hereby certifies on
behalf of the Marlins Entities as follows:
1. Attached hereto as Exhibit A is a true, correct and complete copy of resolutions
duly adopted by the sole director of the Company, which resolutions have not been modified,
rescinded or amended and are in full force and effect on the date hereof.
2. The persons signing below are incumbent officers of each of the Marlins Entities,
authorized to sign the Stadium Agreements (as defined in the attached resolutions) on behalf of
the applicable Marl' Entities. Such persons hold the offices set forth below their names with
respect to each of th Marlins Entities, and their signatures set forth above their names are
genuine.
r
JeffreyLoch David S sonChairmd C of Executive Officer P si t and retary
IN WITNESS WHEREOF, the undersigned has executed this certificate this _tom day
of March, 2009,
DOUBLE PULAY
LE
CURRENT 135406630
Michel Wusiere
Senior Mice President, Chief Financial
Officer, Treasurer and Assistant
Secretary
ck�;6,� A
CONSENT OF
THE SOLE DIRECTOR OF
DOUBLE PLAY COMPANY
The undersigned, who is the sole director of Double Play Company, a Nova
Scotia unlimited company (the "Company"), which is the managing general partner of Florida
Marlins, L.P. ("FMLP"), which is the sole member of Marlins Stadium Developer, LLC
("MSD") and Marlins Stadi-,i m Operator, LLC ("MSO" and, together with the Company, FMLP,
MSD and MSO, the "Marlins Entities"), hereby adopts the following resolutions and consents to
the actions set forth in those resolutions pursuant to Section 91 (1) of the Companies Act:
RESOLVED, that the proposed (i) Construction
Administration Agreement among MSD, Miami -Dade
County (the "County") and the City of Miami (the "City"),
(ii) Operating Agreement among MSO, the County and the
City, (iii) City Parking Agreement among MSO, the City
and the County, (iv) Non -Relocation Agreement among
FMLP, the County and the City, and (v) Assurance
Agreement among FMLP, the County and the City ((i) -(v),
collectively, the "Stadium Agreements"), each in the form
presented to the undersigned, is approved;
RESOLVED, that each of (i) Jeffrey Loria,
Chairman of each of the Marlins Entities, and (ii) David
Samson, President of each of the Marlins Entities, is
authorized individually to execute and deliver each of the
Stadium Agreements on behalf of the applicable Marlins
Entities, in substantially the form presented to the
undersigned, with such changes therein as the executing
officer may approve, such officer's execution and delivery
thereof to be conclusive evidence of such approval;
RESOLVED, that all actions previously taken by an
officer or officers of any of the Marlins Entities, on behalf
of one or more of the Marlins Entities, in connection with
the Stadium Agreements and the transactions contemplated
thereby, are hereby ratified, approved and confirmed in all
respects; and
RESOLVED, that each officer of each of the
Marlins Entities is authorized to take all actions, to execute
and deliver all instruments, certificates and documents
(including amendments), and to pay all expenses on behalf
of the Marlins Entities, as such officer determines
necessary or advisable in connection with the Stadium
Agreements, and the transactions contemplated thereby,
Dated as of March � , 2009
c
J fret'a
pk i� i e) rr 14
[Final Draft]
TABLE OF CONTENTS
\
PaLle
ARTICLE I DEFINED TERMS......................................................................................................1
ti
ARTICLE IT CONCPPTUAL DESCRIPTION OF THE BASEBALL STADIUM, PARKING
FACILITIE�,AND PUBLIC INFRASTRUCTURE....................................................12
ARTICLE III THE BASE i ALL STADIUM SITE., ................................................ ....................
12
ARTICLE IV BASEBALL S5\ADrUM DESIGN.......................................................................298
ARTICLE V CONSTRUCTIOF BASEBALL STADIUM
....................................................34
ARTICLE VI PROJECT FUND IN .............................................................................................45
ARTICLE VII CONSTRUCTION F ING ................. ..............51
ARTICLE VIII INSURANCE; CASUAL Y...............................................................................53
ARTICLE IX REPRESENTATIONS, W NTIES AND COVENANTS ............................57
ARTICLE X DEFAULTS AND REMEDIES..............................................................................62
ARTICLEXI TERMINATION....................................................................................................66
ARTICLE XII INDEMNIFICATION...........................................................................................68
ARTICLE XIII PARTY REPRESENTATIVES..........................................................................70
ARTICLE XIV ARBITRATION.................................................................................................72
ARTICLE XV MISCELLANEOUS.............................................................................................74
CONSTRUCTION ADMINISTRATION AGREEMENT
This, Construction Administration Agreement (this "Agreement") is made and entered
into this ___\ day of 2009 by and among Miami -Dade County, a political
subdivision of ale State of Florida (the "County"), the City of Miami, a municipal corporation of
the State of Florlla (the "City"), and Marlins Stadium Developer, LLC, a Delaware limited
liability company e "Stadium Developer," and together with the County and the City, the
"Parties"). \;
RECITALS
A. On March 3, 208, the County, the City and Florida Marlins, L.P. (the "Team")
executed a Baseball Stadium Agx` ement (the "BSA") outlining the general terms and conditions
under which they would move fo and to design, develop, construct and operate a Major League
Baseball stadium to be located in the ity.
B. This Agreement provide for the planning, design and the construction of the
Baseball Stadium (as defined below) an the Public Infrastructure (as defined below) by the
Stadium Developer. The Stadium DevelopKnd the County and City have determined that the
plamxing, design and construction of the aseball Stadium and the performance of this
Agreement are in the best interests of the Coun and the City and will serve a paramount public
purpose. Specifically, but without limitation, su operation will support the development and
improve the quality of life for the citizens of the 0 unty and the City; benefit their convention,
tourism, economic development and entertainment if dustries and the local economy; encourage
the growth of cultural, tourism, economic developm nt and enteitaimnent opportunities; and
become an integral part of the revitalization and resurgof the City and a prominent symbol
of the vibrancy of the County and the City. \
C. Contemporaneously with the execution of thi Agreement, the County, the City,
the Team and certain affiliates of the Team are entering into t e other Stadium Agreements (as
defined below) pursuant to which, among other things, the Tbam will guaranty the Stadium
Developer's obligations under this Agreement and use the Ba eball Stadium for its home
baseball games.
NOW, THEREFORE, the Parties agree as follows:
ARTICLE I
DEFINED TERMS
As used in this Agreement, the following terms have the following
"AAA" is defined in Section 14.1
"Acceptance Date" means August 29, 2008.
"Affiliate" means, with respect to any Person, another Person that directly or indirectly
owns o controls, is owned or controlled by, or is under common control with such Person. For
purposesthis definition, one Person owns another when it owns more than fifty percent (50%)
of the equit , interests in the other Person and one Person "controls" another when it has the right
to exercise ino e than fifty percent (50%) of the voting power of the other Person.
"A licab Law" means any applicable law, statute, code, ordinance, administrative
order, imp lementin\order, charter, resolution, order, rule, regulation, judgment, decree, writ,
injunction, franchise, � ermit or license, of any Govenunental Authority, now existing or
hereafter enacted, adopte I promulgated, entered, or issued.
"Architect" means HOK Sport, Inc., currently doing business as HOK
Sport+Venue+Event, or such of er architectural firm as the Stadium Developer may retain as the
principal architect for the Basebal Stadium or, as the case may be, as the principal architect for
the Public Infrastructure, and their re , ective successors or assigns.
"Architect Contract" means ai h respect to the Baseball Stadium Work the contract
O P
between the Stadium Developer and the chitect providing the architectural and engineering
services for the Baseball Stadium, and (b) '\asa
to the Public Infrastructure Work, the
contract between the Stadium Developer anhitect providing the architectural and
engineering services for the Public Infrastructu
"Assurance Agreement" means the Asgreement among the County, the City
and the Team dated as of the date of this Agreeay be amended and/or restated,
"Baseball Rules and Regulations" meanthe ollowing as amended from time to
time; (i) any present or future agreements ato th �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 Agreem nt, the Major League Rules,
the Interactive Media Rights Agreement, the Basic Agreement tween the Major League
Baseball Clubs and the Major League Baseball Players Association, each agency agreement
and any operating guidelines among Major League Baseball clubs and ajor League Baseball;
and (ii) any present and future mandates, piles, regulations, policies, irate etations, bulletins or
directives issued or adopted by Major League Baseball applicable to Mai �r League Baseball
Clubs generally.
"Baseball Stadium" means the building and improvements to be cons cted on the
Baseball Stadium Site as described in Article II. The Baseball Stadium does not ' Iclude the
Parking Facilities, Public Infrastructure or Other Development.
"Baseball Stadium Proiect" means the design, development and construction o the
Baseball Stadium in accordance with this Agreement. The Baseball Stadium Project does ,ot
include the Parking Facilities, Public Infrastructure or Other Development.
"Baseball Stadium Site" is defined in Section 3.1.
"Baseball Stadium Work" means all work to be perfonned to construct the Baseball
Stadium in accordance with this Agreement,
"Board" means the Board of County Commissioners of Miami -Dade County,
"Bonds" means, collectively, the City Bonds and the County Bonds.
V3_" is defined in the Recitals of this Agreement,
"BuNder's Risk Insurance Proceeds" means any proceeds paid pursuant to the builder's
risk insurance policy referred to in Section 8.1 and designated for the repair, restoration,
replacement o,rebuilding of all or any part of the Baseball Stadium or the Public Infrastructure,
as the case may s e.
"Business Da " means any day other than a Saturday, Sunday or legal or bank holiday in
the County or the CN1. If any time period set forth in this Agreement expires on a day other than
a Business Day, sucheriod shall be extended to and through the next succeeding Business Day.
" is defined in the Operating Agreement.
"Casualty" is defineain Section 8.3(a),
defined in Section 8.3(a).
"CBI;-AIE Program" mead the County's Community Business Enterprise Program for
architectural, engineering, landscap architectural, surveying and mapping professionals as set
forth in Section 2-10.4.01 of the Coun y Code.
"Certificate of Occupancy" meas a certificate issued by the City's building official
permitting public occupancy and use of the aseball Stadium.
"Challenge" is defined in Section 9.4(
"Change Order" means a written instrunr,,�nt signed by the Stadium Developer and the
Construction Manager authorizing a change in he scope of Work, the GMP, the Public
Infrastructure GMP and/or the date of Substantial 0 mpletion for the Baseball Stadium or the
Public Infrastructure, as the case may be.
"City" is defined in the Preamble to this
"City Account" means a segregated deposit account f ided and maintained by the City in
accordance with Articles VI and VTI.
"City Bonds" is defined in Section 6.3.
"City Code" means the City of Miami Code.
"City Parking Agreement" means the City Parking Agreement among the City, the
Stadium Operator and the County dated as of the date of this Agreement, a it may be amended
and/or restated.
"City Personnel" is defined in Section 15.8.
is defined in Section 13.1.
"Claim" ikdefined in Section 12.3.
"CM Sery1— s Secui�it " is defined in Section 3.$(g) with respect to the Public
Infrastructure Work aAq is defined in Section 5.2(e) with respect to the Baseball Stadium Work.
"Commencement bf Construction" means the occurrence of all of the following: (i) with
respect to the Baseball Stadium the building permit needed to begin construction of the Baseball
Stadium has been issued anthe Stadium Developer has begun physical construction of the
Baseball Stadium foundation`�nd (ii)with respect to the Public Infrastructure, the required
permit(s) needed to begin construction of the Public Infrastructure have been issued, and the
Stadium Developer has begun phyT�cal construction of the Public Infrastructure.
"Commission" means the City\Commission of the City of Miami.
"Construction Documents" means the architectural drawings, specifications and other
documents, as may be amended from tirr, to time in accordance with this Agreement, setting
forth the design of the Baseball Stadium or is Public Infrastructure, as the case may be, and the
requirements for their respective construct on in sufficient detail for the permitting and
construction of the Baseball Stadium or the Puhlic Infrastructure, as the case may be.
"Constriction Management Contract" m ans (a) with respect to the Baseball Stadium
Work, the contract between the Stadium Develo er and the Construction Manager providing
construction management and/or general contract' , g services for the Baseball Stadium, and
(b) with respect to the Public Infrastructure Work, th contract between the Stadium Developer
and the Construction Manager providing construction management and/or general contracting
services for the Public Infrastructure Work.
"Construction Manager" means (a) with respect to t e Baseball Stadium Work, an entity
selected by the Stadium Developer to provide eonstruct'on management and/or general
contracting services with regard to the construction and deve pment of the Baseball Stadium,
and (b) with respect to the Public Infrastructure Work, an tity selected by the Stadium
Developer to provide construction management and/or general cd tracting services with regard
to the construction and development of the Public Infrastructure.
"Construction Schedule" means the construction schedule or s Zedules relating to, as the
case maybe, the Baseball Stadium Work or the Public Infrastructure W k, to be prepared by the
Construction Manager pursuant to the requirements of the Construction anagement Contract,
as such schedules are updated in accordance with Section 5.7.
"Count " is defined in the Preamble to this Agreement.
"County Account" n7eans, with respect to each series of County Bond , a segregated
deposit account funded and maintained by the County in accordance with Articles X1 and VII.
"County Bonds" is defined in Section 6.2.
"Count Code" means the Miami -Dade County Code.
"County Cure Period" is defined in Section 3.10.
"County
Nu" is defined in Section 3.10.
"County_Lot6,P6"itted Exceptions" is defined in Section 3.10.
is defined in Section 3.10.
" is defined in Section 15,7.
'is defined in Section 13.1.
"Default" means a Government Party Default or Stadium Developer Default.
"DERM" means the County's Department of Environmental Resources Management.
"DesiMgi Development Do uments" means drawings and specifications, as may be
amended from time to time in acc ((dance with this Agreement, based upon and refining the
Schematic Design Documents illustrat'ng the scope, relationship, forms, size and appearance of
the Baseball Stadium or the Public I, frastrueture, as the case may be, by means of plans,
sections and elevations, typical construct n details, and equipment layouts.
"Desitin Documents" means the mo recent of the Schematic Design Documents, Design
Development Documents and Construction currents.
"Design Professionals" means the Aschi% ct and the engineers and consultants retained b
g Y
the Architect or the Stadium Developer or other eam Affiliate, as the case may be, from time to
time to provide architectural, design and design- elated engineezing services for the Baseball
Stadium or the Public Infrastructure, as the case ma be.
"Development Requirements" is defined in Sec 'on 3.6(a).
"Development Site" means all land within the ntire Site (other than the Baseball
Stadium Site), as may be amended from time to time by n tice from the City, provided that the
amendment shall not affect the Baseball Stadium Site or he sites selected for the Parking
Facilities. \
"Draw Down Schedule" is defined in Section 5.7(c).
"Easements" is defined in Section 3.5(b).
"Encroaching Basements" is defined in Section 3.4(a)(1).
"Entire Site" means the area of land described in Exhibit B.
M
"Expedited ADR" is defined in Section 14.2.
is defined in Section 14.2.
"Final Completion" 'leans the occurrence of all of the following: (i) the Architect has
signed and delivered to the St `drum Developer and the Government Representatives a certificate
of final completion in accordane with the Architect Contract, (ii) a Certificate of Occupancy has
been issued for the Baseball -M� iuni Project or any required final inspection has been approved
for the Public Infrastructure, and�(ui) punch list iterns have been completed.
"Force Majeure" means a war, insurrection, strike or lockout, riot, hurricane, flood,
earthquake, fire, casualty, act of Go , act of the public enemy, epidemic, quarantine restriction,
freight embargoes, lack of transportat'On, governmental restriction, court order, unusually severe
weather, act or the failure to act of an. public governmental agency or entity, terrorism, or any
other cause in each case (including thvents specified above) beyond the reasonable control
and without the fault of the Party claimr qan excuse from performance; provided, however, that
any Force Majeure involving or relating o 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 reaonable control and without the fault of the Party
claiming an excuse from performance.
"Funding Accounts" means, collectively,
Stadium Developer Account,
"GMP" is defined in Section 5.2(c).
City Account, the County Account and the
"Government Costs" means costs incurred by tl Government Parties in connection with
the performance of their obligations under the BSA a d the Stadium Agreements, including
(i) costs incurred in connection with the issuance of t e Bonds, (ii) costs relating to Other
Development or the Parking Facilities, (iii) costs for th rd party professional assistance in
connection with the Baseball Stadium Project, including le al counsel and financial and other
consultants, (iv) costs incurred by the Government Parties un er Article III, (v) costs relating to
the demolition of the Orange Bowl and related debris remova (vii) costs relating to the IPSIG,
and (vii) overhead costs and costs relating to employees of the Government Parties (except for
small business program monitoring costs payable by the Stadium\ eveloper under Section 5.14),
but not including Public Infrastructure Costs (which shall e paid in accordance with
Section 3.8).
"Government Party" means each of the County and the City,
"Government Party Default" is defined in Section 10.2.
"Government Relief Grant" means a financial grant or other no -refundable relief or
assistance from the Federal Emergency Management Agency, the Depa ent of Homeland
Security, or any other federal, State or local Governmental Authority.
"Government Representatives" is defined in Section 13.1.
0
"Govermnental Authority" means any federal, State, County, municipal or other
governmental department, entity, authority, commission, board, bureau, court, agency, or any
instrumentality of anQf them.
ment all
"GovernCaused Overruns" is defined in Section 6,5. 1.
"Indemnified Party',' is defined in Section 12.3.
"Indemnitor" is
"Insurance Policies" is
"IPSIG" is defined in S
in Section 12.3.
in Section 8.1.
15.24(b).
"Lien" means any encumbrarige, lien, security interest, pledge, easement, license, right-
of-way, covenant, condition, restriction,_ or claim in, to, against or in any way applicable to any
portion of the Baseball Stadium, the Baseball Stadium Site, the Public Infrastructure, the Public
Infrastructure sites or the County Lots, as"the case maybe.
"Major League Baseball" means, `individually and collectively, the Office of the
Conuuissioner of Baseball, the CommissioriRr of Baseball, the Major League Baseball clubs,
Major League Baseball Enterprises, Inc., MajoLeague. Baseball Properties, Inc., Major League
Baseball Properties Canada, Inc., Major Leagu 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 respect ve present and future affiliates, assigns and
successors, and any other entity owned equally by th Major League Baseball clubs.
"Master Project Schedule" means the project schedule using acritical path method
prepared by the Construction Manager, that identifies, c ordi.
design and construction milestones for the Baseball Sta 'un
Work, the Parking Facilities (to the extent informatio
Manager), the Stadium Developer's responsibilities, Gove
activities as are necessary for the timely completion of the
revised and updated in accordance with Section 5.7.
"MLB Home Games" is defined in the Operating
ates and integrates the anticipated
Project, the Public Infrastructure
> conveyed to the Construction
lent Authority reviews and other
Work, as such schedule shall be
"MLB Jewel Events" is defined in the Operating Agreement.
"Neutral" is defined in Section 14.2.
"Non Ad -Valorem Revenues" means all legally available rev nues and taxes of the
County derived from any source whatsoever other than ad valorem taxati on real and personal
property.
"Non -Relocation Agreement" means the Non -Relocation Agreement Ong the County,
the City and the Team dated as of the date of this Agreement, as it may be\mended and/or
restated.
' is defined in Section 3.9(a).
"Operating Agreement" means the Operating Agreement among the County, the City and
the Stadium Operat r dated as of the date of this Agreement, as it may be amended and/or
restated. 1
111fies" is defined in the City Parking Agreement.
"Parties" is defined in the Preamble to this Agreement.
"Permitted Exce tid ls" means the title exceptions with respect to the Baseball Stadium
Site listed on Exhibit C (un ess the exceptions are of the type cured by approval of the Replat
including those specifically luted in Section 3A).
"Person" means any natal person, firm, partnership, association, corporation, limited
liability company, trust, public body, authority, governmental unit or other entity.
"Project Coordination Team`s is defined in Section 5A,
"Project Program Statement" Zeans the document that specifies, among other things:
(i) the physical components of the Ba eball Stadium; (ii) the location and approximate space
requirements for those components; (iii)\ he formulation of how those spaces will be used; and
(iv) general descriptions of the followingtadium systems: food services, concessions, sound,
HVAC, security, scoreboard, electric I and emergency generation, lighting and
telecommunications and data. The Project P ogram Statement is attached as Exhibit D and may
be amended as provided in this Agreement.
"Public Infrastructure" means the pub
Exhibit G.
"Public Infrastructure Budget" means the
attached hereto as Exhibit G.
infrastructure improvements described on
for the Public Infrastructure Costs
"Public Infrastructure Costs" means all hard costs Public Infrastructure Design Costs and
other costs incurred by the Parties in accordance 'th this Agreement for the design,
development, construction and completion of the Public frastructure. Public Infrastructure
hard costs include the cost of all labor and all mate 'als incorporated into the Public
Infrastructure.
"Public Infrastructure Cost Overrun" is defined in Sectio4 6,5.2
"Public Infrastructure Delay and Scheduling Overrun"m ans any cost overrun that (a)
arises from delays in the performance of the Public Infrastructur Worlc by the Construction
Manager or its subcontractors; (b) is caused by Construction M ager's failure to properly
schedule and coordinate the Baseball Stadium Work and the Public I frastructure Work; or (c)
arises from delays resulting from the performance by the .Architect of its obligations under the
Architect Contract.
"Public In •astructure Desi i Costs" means the Public hifrastructure Costs to be paid
directly by the Sta 'um Developer or other Team Affiliates to cover fees and costs relating to the
Architect, the civil engineer, and other design professionals incurred in connection with the
Public Infrastructure, i
"Public Infrastrti\cture Funding Account" means each account or sub -account established
by each of the County ap(rd the City for funding the Public Infrastructure Work as set forth in
Section 7,1(e),
" Public Infrastructure GMP" is defined in Section 3.8(e).
i
"Public Infrastructure Site means the site of the Public Infrastructure Work.
"Public Infrastructure Wbrk" means all work to be performed to construct the Public
Infrastructure in accordance with this Agreement.
"QS means a fast food restaurant or food shop in which meals or food items are sold at
a counter or window, or for take-out purposes. "QSR" does not include casual dining restaurants
with waitered service or Latin restaurant that may serve croquettes or pastries from a counter or
window (such as Cafe Versailles and La arretta).
"Reimbursable Interim Costs" mean\the lesser of (a) the total reasonable actual out-of-
pocket costs (as supported by reasonable docrl�nentation) expended by all three Parties relating to
the Baseball Stadium Project and the Public In wrastructure, from March 3, 2008 through the date
of the notice of termination (in the categories de't, iled in the Schedule of Eligible Reimbursable
Expenses provided in Exhibit I-1), which shall of include any costs expended by the City
relating to the demolition of the existing Orange Bo 1 stadium, any other costs that would have
been incurred by the City if there were no Baseball St dium Project or that can be used towards a
separate City development project or that otherwise c n be used to provide value to the City
unless such costs were expressly set forth in Exhibit I, r lost profits, lost tax collections, lost
opportunities for economic development, and the like; or b) $20,500,000. For purposes of this
definition, any reasonable actual out-of-pocket costs exp e ded by the Team during the time
periods set forth above shall be treated as expenditures by the tadium Developer.
"Reimbursable Interim Costs Limitation" means(i) if a rmination under Section 11.1.1
occurs prior to June 1, 2009: (a) with respect to the Stadium De eloper, $14,000,000, (b) with
respect to the County, $4,000,000, and (c) with respect to the ty, $2,500,000; and (ii) if a
tennination under Section 11.1.1 occurs between June, 1, 2009 and ly 1, 2009: (a) with respect
to the Stadium Developer, $10,000,000, (b) with respect to the Count `$7,000,000, and (c) with
respect to the City, $3,500,000.
"Replat" is defined in Section 3.4(a).
"Schedule of Eligible Reimbursable Expenses" shall mean the sche, ule attached hereto
as Exhibit 1-1.
"Schematic esiE�n Documents" means the conceptual design documents of the Baseball
Stadium, or the PubN Infrastructure, as the case may be, as may be amended from time to time
in accordance with thi Agreement, illustrating the scale and relationship of the Baseball Stadium
components or the Publbc Inlfrastructure components, as the case may be.
"Stadium Agreem6ants" means, collectively, this Agreement, the Operating Agreement,
the Non -Relocation Agreer�ent, the City Parking Agreement, and the Assurance Agreement.
is defined in Section 6.5.1.
is defined in Section 3.4(b).
"Stadium Developer" meaMarlins Stadium Developer, LLC, a Delaware limited
liability company, and its perinitted Vccessors and assigns.
"Stadium Developer Account" means a segregated deposit account funded and
maintained by the Stadium Developer inccordance with Articles VI and VII.
"Stadium Developer Default" is defted in Section 10.1.
"Stadium Developer Personnel" is defied in Section 15.6.
"Stadium Developer Representative" is d�fined in Section 13.2.
"Stadium Developer Soft Costs" means the Stadium Project Costs to be paid directly by
the Stadium Developer or other Team Affiliate to co er the fees and costs relating to the Design
Professionals and the Stadium Developer'sowne 's representative, legal fees and other
consultant fees (but excluding legal fees and costs r ated to pending or threatened litigation
against the County and/or the City, including mediation and arbitration) incurred after March 3,
2008 in connection with the Baseball Stadium Project.
"Stadium Events" is defined in the Operating Agree ent.
"Stadium Operator" means Marlins Stadium Operator, LLC, a Delaware limited liability
company, and its permitted successors and assigns.
"Stadium Proiect Budget" is defined in Section 5.6.
"Stadium Project Costs" means all hard costs, Stadium Developer Soft Costs and other
costs incurred by the Stadium Developer and other Team Affiliates'n accordance with the BSA
and this Agreement for the design, development, construction and ompletion of the Baseball
Stadium. Project hard costs include the cost of all labor, constru tion materials, furniture,
fixtures and equipment incorporated into the Baseball Stadium but excludes Public
hnfrastructure Costs.
"State" means the State of Florida.
10
"Substantial Completion" means (a) with respect to the Baseball Stadium, the occurrence
of both of the following; (i) the Architect has signed and delivered to the Stadium Developer and
the Government Representatives a certificate certifying that the Baseball Stadium or Public
Infrastructure, as the case may be, has been substantially completed subject to the completion of
minor punch' st items that do not materially affect the use or occupancy of the Baseball Stadium
or Public Infra tructure, as the case may be, and (ii) a temporary or permanent Certificate of
Occupancy has been issued in respect of the Baseball Stadium, and (b) with respect to the Public
Infrastructure, finallinspections and acceptance by the appropriate Governmental Authorities.
"Targeted Cori letion Date" means April 1, 2012.
"Team" means orida Marlins, L.P., a Delaware limited partnership, and its permitted
successors and assigns,
"Team Affiliate" meks the Team, the Stadium Developer, the Stadium Operator and any
other entity that is an Affiliate\of the Team.
"Team Depreciable Asse " means any tangible personal property included in or relating
to Stadium Premises, whether loc ted within public spaces in the Stadium Premises or in the
Exclusive Areas, to the extent paid or or provided by the Stadium Developer, the Operator, the
Team, or any of their licensees, Uses, Service Providers or Affiliates, regardless of the legal
ownership for non -income tax purposes.
"Title Defect" means any Lien or o her condition which is not a Permitted Exception and
would (i) render the title for the Baseball tadium Site unmarketable or to have diminished
marketability or (ii) impair the use of the Base, all Stadium Site for the purposes intended,
"Transfer" is defined in Section 15.10(a).
"Unforeseen Site Conditions" shall me n unsuitable soil conditions, man-made
obstructions, abandoned foundations, utilities and na ural underground obstructions or any other
physical condition which may alter or delay any part o \the Work.
Work,
"WASD" means the Miami -Dade Water and SewDepartment.
"Warranty Deed" is defined in Section 3.5(a).
"Work" means collectively the Baseball Stadium W k and the Public Irifrastructure
ARTICLE II
AND PUBLIC INFRASTRUCTURE
The Baseball Stadium shall be a first class baseball stadium to be owned by the County
and constructed on the Baseball Stadium Site. The Baseball Stadium sh 11 have a retractable
11
roof, a natural grass playing field, a capacity of approximately 37,000 spectators, including
approximately 3,000 club seats, approximately 60 private suites, and concession, entertainment
and retail areas, fixtures, furnishings, equipment, features, systems and amenities comparable
with other recently g�onstructed Major League Baseball ballparks with similar capacity and
amenities in San DQb St. Louis, Houston, Philadelphia, Pittsburgh, and Milwaukee. The
features of the Baseball �tadium, including Team offices and retail space, are more particularly
described in the Project Pry gram Statement and will be refected in the Design Documents, The
Baseball Stadium will be silported by the Public Infrastructure and Parking Facilities that will
be constructed and operated as provided in the City Parking Agreement.
ARTICLE III
3.1 The Site, The Baseball\\Stadium will be developed on approximately 16.975 acres
of land within the Entire Site identifiedi Exhibit A (the `Baseball Stadium Site"). The Baseball
Stadium Site is further defined by the �\an
description set forth in the ALTA/ACSM LAND
TITLE SURVEY, initially prepared oril 9, 2007 (boundary) and February 14, 2008
(topographic portion), and updated on Ocor 7, 2008 and November 18, 2008, a copy of which
is on file with the Clerk of the Board'incorporated herein by reference. The Baseball
Stadium Site includes a plaza area, as it d on Exhibit A, that will be open to the general
public as provided in the Operating Agen The City has not taken any action since the
Acceptance Date and shall not take any th t to its knowledge would impair the condition
of the Baseball Stadium Site, or the portf the mire Site upon which the Parking Facilities
or Public Infrastructure will be constr. If any Title Defects arose or arise between
February 13, 2008 and the date of conve of t11 Baseball Stadium Site under Section 3.5,
the City shall use reasonable commercials to cur any such Title Defects within thirty (30)
days, provided that (i) the City shall not uired to i � stitute any litigation or eminent domain
proceedings, and (ii) the City shall not buired to ex end funds for such purpose, other than
the fees of its legal counsel.
3.2 Site Conditions: Environmental Remediati
(a) Pursuant to Section 4.01(e) of the BSA nd subject to the terms of this
Agreement, the Team accepted the condition of the Baseball S ad' lum
Site on the Acceptance
Date for the purpose of constructing the Baseball Stadium. Asn essary to on
its obligations
to cause the completion of the construction of the Baseball Sta 'um, the Stadium Developer
accepts complete responsibility for conditions encountered at the seball Stadium Site which
are (i) Unforeseen Site Conditions; (ii) subsurface or otherwise con ealed physical conditions
which differ materially from those indicated or assumed in the onstnzction Documents;
(iii) unknown physical conditions of an unusual nature which diffe materially from those
ordinarily found to exist and generally recognized as inherent in const ction activities of the
character provided for in the Construction Documents; and (iv) any ewatering activities
necessary to construct the Baseball Stadium at the Baseball Stadium ite. The Stadium
Developer shall be responsible for the removal or relocation of man- ade obstructions,
abandoned foundations, utilities and natural underground obstructions required for the
12
completion of the Baseball Stadium Work whether identified or not in the Constriction
Documents. The Stadium Developer also accepts responsibility for any site conditions,
including environrnenta�conditions, caused, disturbed or exacerbated by the Stadium Developer
during the construction \f the Baseball Stadium. Subject to paragraph (c) and the other terms
hereof, the Stadium Dweloper agrees to be responsible and pay for all environmental
remediation work that is required on the Baseball Stadium Site by Applicable Law in order to o
complete the construction the Baseball Stadium. With respect to any environmental condition
caused by or exacerbated by%�e activities of the Stadium Developer, this obligation shall survive
the termination of this Agree ent and shall obligate the Stadium Developer to complete all
required remediation activities, 'ncluded, but not limited to, all required testing, monitoring and
closure conditions. The Countynd the Stadium Developer, on its own behalf and on behalf of
any Team Affiliate, further agre not to initiate any claims or suits against the City for any
damages any of them suffers fror\,but
nvironmental condition on the Baseball Stadium Site
existing prior to the Acceptance Dshall have the right to join the City in the case of any
third party claims or suits filed agCounty, the Stadium Developer, or a Team Affiliate,
arising from an environmental con the Baseball Stadium Site existing prior to the
Acceptance Date. The Stadium per, on its own behalf and on behalf of any Team
Affiliate, further agrees not to iniy claims or suits against the County for any damages
any of them suffers from an envirocondition on the Baseball Stadium Site but shall have
the right to join the County in the case of a�y third party claims or suits filed against the Stadium
Developer, or a Team Affiliate, arising om an environmental condition on the Baseball
Stadium Site. The Stadium Developer ,on i s own behalf and on behalf of any Team Affiliate,
agrees to indemnify, defend and hold harmle s the County and the City from and against any
claims arising from an environmental condi 'on caused by or exacerbated by the Stadium
Developer and/or any Team Affiliate in perfo ling its activities under this Agreement on the
Baseball Stadium Site arising subsequent to the A ceptance Date.
(b) In connection with the Stadr m Developer's environmental remediation
responsibility, as set forth in the paragraph (a) abovand in satisfaction of the requirements of
Section4.01(a)(iii) of the BSA, the Team has procur d, and the City has reimbursed the Team
the cost of the premium for, an environmental polluti4 liability insurance policy, bound as of
the Acceptance Date. The City shall be responsible for e payment of any deductibles required
for claims made under the environmental insurance policy.
(c) The City also agrees that it will, at i s expense, remediate in accordance
with any option available under applicable environmental 1 w, rules and regulations, including
Chapter 24 of the Miami -Dade County Code, any environmen al contamination located on, in or
under or originating from the portion of the Entire Site locat d at 1600 Northwest 7th Street,
which is described in the Phase I Report as having been used i the past as a petroleum filling
station, and any environmental contamination existing on, ori inating from, or affecting the
Public Infrastructure sites which are located within the Entire Site.
(d) As necessary to complete its construction obligations related to the Public
Infrastructure Work, the County and the City accept complete i?, sponsibility for conditions
encountered at the Public Infrastructure Site which are (i) U oreseen Site Conditions;
(ii) subsurface or otherwise concealed physical conditions which di fer materially from those
indicated or assurned in the Construction Documents; and (iii) unkno ,� n physical conditions of
13
an unusual nature which differ materially from those ordinarily found to exist and generally
recognized as inherent in construction activities of the character provided for in the Construction
Documents. The P blit Infrastructure Work shall include the removal or relocation of man-
made obstructions a,andoned foundations utilities and natural underground obstructions
required for the comple 'on of the Public Infrastructure Work whether identified or not in the
Construction Documents. The County's and City's responsibilities with respect to the foregoing
are further defined in Sectio � 3.8 hereof.
(e) The indd reification obligations and covenants not to sue contained in this
Section 3.2 shall survive the expiration or earlier termination of this Agreement,
3.3 Title Insurance. Tli County and the Team Affiliates shall not be obligated to
purchase a title insurance policy, ,ut shall be free to purchase a title policy from any title
company or companies they select (i being understood that the City shall have no obligations
with respect to such policy except as ovided below), The City shall execute such customary
affidavits (gap, no -lien and possession) may be reasonably required by the title company in
order to delete the standard exceptions, bu not to delete any Permitted Exceptions, from the title
commitment and title policy, if the County nd/or Team Affiliates elect to obtain a title policy.
If the Team Affiliates and the County agre that title insurance for the land is required, the
County shall procure such policy. If the cost o the title insurance policy is greater than $10,000,
the cost of the policy shall be borne equally bet een the Team Affiliates and the County. If the
cost of the title insurance policy is less than or e ual to $10,000, the Team Affiliates shall bear
the cost.
3.4 Reolattinu: A
(a) The City has commenced and s` all diligently pursue the approval of a
replat (the "Replat") of portions of the Entire Site for the urpose of:
(i) abandoning and/or relocatin those easements and rights of way
located within the Entire Site which would interfere with th construction, location or operation
of the Baseball Stadium or the Public Infrastructure (the "Ener aching Easements"); and
(ii) recording the subdivision of the re vant portions of the Entire Site
and any easements necessary for the construction or operation of t e Baseball Stadium.
The contemplated Replat submitted to Miami -Dade County and te City of Miami, originally
dated April 9, 2007, with updates on February 14, 2008 and Qctobe 17, 2008, and prepared by
Fortin, Leavy, Skiles, Inc,, is on file with the Clerk of the Board anis incorporated herein by
reference. The City shall pay all the expenses incurred in coimectio with the approval and
recordation of the Replat, including the abandonments, relocations and her work necessary for
such approval and recordation.
(b) The Stadium Developer and the City jointly shall iligently pursue the
approval of a Major Use Special Permit for the purpose of enabling the I
ounty, the Stadium
Developer or the City, as appropriate, to procure a building permit for the onstruction of the
Baseball Stadium and the Parking Facilities (the "Stadium and Parking MUS "). The Stadium
Developer, as it relates to the Baseball Stadium. portion of the Stadium and Par ing MUSP, and
14
the City, as it relates to the Parking Facilities portion of the Stadium and Parking MUSP, each
shall pay for the respective studies, plans and other submissions which are required for the
Stadium and Parking MUSP. The City shall be responsible for any permits and costs associated
with the Other Development,
(c) The Parties shall reasonably cooperate with one another in connection
with the applications for:the Replat and any amendments and supplements thereto and shall
promptly and diligently, aid as often as may be required, join in the execution of applications,
submissions and other documents and appear at meetings, staff conferences, public hearings and
such other events of the Ci, the County, the State and the United States, and their respective
agencies, departments, boars and commissions, as required. The Parties shall work diligently
and cooperatively to expediti usly complete the Replat. Any necessary abandonment of roads,
abandonment and relocation of utilities, and abandonment or relocation of Encroaching
Easements required for the Rep at were included with the Replat as described above,
(d) The Partie shall reasonably cooperate with one another in cormection
with the application for the Stadi and Parking MUSP, and shall promptly and diligently, and
as often as may be required, joi in the execution of applications, submissions and other
documents and appear at meetings, taff conferences, public hearings and such other events of
the City, the County, the State and th United States, and their respective agencies, departments,
boards and commissions, as required.
3.5
(a) Promptly following b t in no event later than thirty (30) days following
the approvals of the applications for the Rep at and the Stadium and Parking MUSP , and the
recordation of the Replat, the City shall conve to the County, and the County shall accept from
the City, fee simple title to the Baseball Stadi in Site. The conveyance shall be by special
warranty deed in the form attached hereto as Exh'bit E (the "Warranty Deed"), free and clear of
all Liens, leasehold or other possessory interests e ept for Permitted Exceptions, The Warranty
Deed shall provide for reversion of title to or at t e direction of the City if (i) the Operating
Agreement is terminated and (ii) the County fails t secure a replacement professional sports
franchise to use the Baseball Stadium within three (3) ears after such termination.
(b) The City shall, upon Commissik approval, grant to the County the
following easements (collectively, the "Easements") at th times indicated below:
(i) contemporaneously with the onveyance of the Baseball Stadium
Site, an access easement for ingress and egress to the Ba all Stadium Site, in a form and
substance reasonably satisfactory to the Parties;
(ii) prior to the Commencement fConstruction of the Public
Infrastructure Work, an easement for any land underlying any of the Public Infrastructure as
shall be reasonably requested by the County in order to imp r ve such land, in a form and
substance reasonably satisfactory to the Parties; and
15
(iii) prior to the Commencement of Construction, a temporary
construction easement to use portions of the Entire Site as specified in such easement for
construction and staging for construction of the Baseball Stadium or Public infrastructure (as
applicable), in a form and substance reasonably satisfactory to the Parties.
The Parties shall take such necessary steps as are required to give proper effect to such
Easements. Prior to the Stadium DeveIoper's and/or County's exercise of rights under such
Easements, the Stadium Developer and/or the County shall provide evidence of insurance in
accordance with the terns of.rticle VIII of this Agreement or as otherwise acceptable to the
City. Such Easements shall te�ninate upon the reversion of title to the Baseball Stadium Site
Pursuant to Section 3.5(a), or as therwise specified therein,
(c) In addition, . t any time after the effective date of this Agreement, the City
shall grant to the County, subjec to Commission approval, any other casements that are
reasonably necessary to complete e construction of the Baseball Stadium and the Public
Infrastructure Work.
(d) The County shall have the right to grant utility, access and other similar
easements affecting the Baseball Stadiu Site and to construct and install utility lines and other
improvements in accordance with such ea ements provided that such work is fully coordinated
and does not unreasonably interfere with th constriction or operation of the Baseball Stadium.
The City shall join in such grants of easemen as reasonably necessary to give effect thereto. The
City shall grant such utility, access and other imilar easements on the Development Site as the
County and Team Affiliates may reasonably r quest to facilitate the development, constriction
and operation of the Baseball Stadium and Publi Infrastructure.
(e) The County shall grant to t e City such utility, access and other similar
easements on the Baseball Stadium Site as the ty may reasonably request to facilitate the
development, construction and operation of the Other Development, provided that such
easements do not interfere with the construction, use r operation of the Baseball Stadium or the
Public Infrastructure, as the case may be.
3.6 Development Requirements.
(a) The City or the County, as appropri te, in consultation with the Stadium
Developer, shall expeditiously process all applications f consents, approvals and permits
necessary to allow for the timely construction of the Baseball tadium, the Parking Facilities and
the Public Infrastructure, which may include, if applica le, without limitation: (i) the
applications or petitions which otherwise require governental approvals described in
Section 3.4, (ii) major use special permit and any other special prmits and/or special exception
applications, (iii) road, alley, and/or public right of way clos �(s) and relocation petitions,
(iv) re -platting petitions, (v) re -zoning or zoning variance applicatr' ns, (vi) DERM and WASD
approvals, (vii) petitions to relocate all public and private utilities, i eluding, without limitation,
electric, gas, cable, telecommunication, water, sewer, and storm ainage facilities, located
within the Baseball Stadium Site to areas to be located outside the oundary of the Baseball
Stadium Site, (viii) Federal Aviation Administration clearance letter, if eeded, for the Baseball
Stadium and (ix) building permits (collectively, including (i) — (i , the "Development
16
Requirements"), The City or the County staff, as appropriate, shall sere as the applicant or co -
applicant for any government approval processes relating to the Development Requirements for
the Baseball Stadium, County Manager and City Manager, or their respective designees, shall,
within ten (10) Business Days following receipt of a written request from the Stadiurn
Developer, execute any applications, forms or petitions necessary to modify, renew, or obtain
any DevelopmeiA. Requirements for the Baseball Stadium, as may be necessary from time to
time, if written consent of the property owner is required for such application, form or petition.
The City and the County each shall act reasonably to expedite any applications for actions or
approvals requested or required of them in connection with the permitting and construction of the
Baseball Stadium and\,the Public Infrastructure to allow for the undelayed completion of the
Baseball Stadium and tliq Public Infrastructure, and each shall dedicate at least one member of its
building permit staff an� make available other appropriate staff to serve as a liaison for the
Baseball Stadium Project and the Public Infrastructure to expedite the permitting process and
other City and County revs, w and approval processes at no cost to the Stadium Developer for
such expediting and staff�g. Further, the City and the County each agrees not to act
unreasonably, or fail to act, 1 a manner that would substantially delay or place in jeopardy, or
would reasonably be expecte to jeopardize, the completion of the Baseball Stadium by the
Targeted Completion Date an the Public Infrastructure by the date set forth in the Master
Project Schedule. The Stadium Developer agrees not to act unreasonably, or fail to act, in a
mariner that would substantially elay or place in jeopardy, or would reasonably be expected to
J the completion of the ublic Infrastructure by the Substantial Completion date set
forth in the Master Project Schedule
(b) The City afire s to review building permits relating to the Baseball
Stadium in accordance with the sched6e set forth below, but the Package Review Times shall
not commence until the City shall have eceived a completed application form for the relevant
pen -nit and all plans, reports, information, exhibits or other documents required to be submitted
with such application, Within five (5) Bus ess Days of receiving any such pen -nit application,
the City shall cause its building department to provide to the Stadium Developer in writing a
specific list of any documents or other requi ments that are missing or otherwise required to
issue the permit.
Permit Review Packages \
Permit Package 1— Foundations
Pen -nit Package 2 — Superstructure, Roof
Permit Package 3 — Enclosures, Interiors,
Finishes
Package Review Time
20 Business Days
20 Business Days
30 Business Days
Once the City has detennined that the permit application aid related documents are complete,
the City shall commence review of the completed applicatio form, In the event that the City
discovers issues during its review of the permit plans, it will 'mmediately notify the Stadium
Developer of same in order to meet the mutual goals of the Partie ,
(c) Any City or County permit fees and other Nity or County Development
Requirement fees (including but not limited to fees for the Stadium lid Parking MUSP, DBRM,
17
WASD, platting and building permit applications) applicable to the Baseball Stadium Project
shall be customary and consistent with amounts charged for City -owned or County -owned,
respectively, projects and shall be waived by the City or County, respectively, to the extent
authorized as of the Effective Date of the BSA by County or City code provision or
administrative regulation, To the extent such waivable fees are advanced by the Team Affiliate,
the City or the County, as the case may be, shall promptly reimburse the Team Affiliate .for such
fees. City impact fec�, if any, shall be imposed on the Baseball Stadium only to the extent the
impacts of the Basebal�Stadium exceed the impacts of the former Orange Bowl on the property.
Because the IPSIG for Nie Baseball Stadium Project was assigned at the time that the BSA was
approved by the Board, he Inspector General contract fee shall not apply to this Agreement or
the other Stadium Agree eats. Any fees payable with respect to the IPS1G assigned to the
Baseball Stadium Project or the Inspector General shall be paid by the County. The Team
Affiliates and the County s all not be responsible for any major use special permit, application or
other costs relating to the O ner Development or Parking Facilities.
(d) The Ci has confirmed via separate letter from its Zoning Administrator
and Director of Planning, resp ctively, that the proposed uses of the Entire Site for the Baseball
Stadium and the Parking Fac'lities are consistent with the current zoning and the City's
Comprehensive Land Use Plan f the Entire Site,
(e) The Parties gree that the latest version of Building Code set forth in
Chapter 8 of the Code of Miami -Da e County, as of the date of the permit application(s), shall
govern the permitting of the Construe 'on Documents.
(f) The Government arties shall use reasonable best efforts to cause Florida
Power and Light and any other private t ility companies whose work will affect the Baseball
Stadium Work or the Public Infrastructure Work to expedite their work so as not to cause any
delay in the orderly progress of the Baseball tadium Work or the Public Infrastructure Work in
accordance with the Master Project Schedule. The Parties acknowledge that, notwithstanding the
Government Parties exercise of reasonable bes efforts, delays in the Work perfonned by private
utility companies shall be considered events of rce Majeure. Under no circumstances shall the
requirement to use reasonable best efforts requir the Government Parties to expend funds for
such purpose.
3.7 Access to Site.
(a) The City shall provide authoriz tion for the Stadium Developer and its
agents, consultants and contractors (includingthe nst -action Manager and the Design
Professionals) to, immediately upon execution of this A Bement, enter upon the Entire Site in
order for them to be able to perform various tests and eudies of the Entire Site, and other
preconstruction work as contemplated by this Agreement. P for to entering the Baseball Stadium
Site, the Stadium Developer shall provide evidence of insuran ce as set forth in Article VIII or as
otherwise reasonably acceptable to the Govermnent Parties a hereby agrees to indemnify the
Government Parties for personal injury or property damage a 'sing out of its activities on the
Baseball Stadium Site under this Section in accordance with icle XII. The right of access
herein granted with respect to the Development Site shall be exercz ed in such a manner as not to
cause any unreasonable damage or destruction to, or unreasonable interruption or interference
18
with, the rights of the City or others to enter upon or use the Development Site. The Stadium
Developer agrees to immediately pay or cause to be removed any liens or encumbrances filed
against the Development Site as a result of any actions taken by it or on its behalf in connection
with the work contemplated by this paragraph, and to repair such damages to the Development
Site caused by sai, work as the City shall reasonably require, giving due weight to the expected
demolition of the in provements on the Entire Site.
(b) �pon its taking title to the Baseball Stadium Site, the County shall make
the Baseball Stadium S e fully available to the Stadium Developer for the construction of the
Baseball Stadium and for the other purposes contemplated by the Stadium Agreements. Upon
the date set forth in the M ter Project Schedule as the commencement of construction date, the
Stadium Developer shall b fully responsible for securing the Baseball Stadium Site and for
providing the insurance requi d by this Agreement.
(c) The Gov iinent Representatives shall be given access to the Baseball
Stadium Site to conduct the inspe •tions provided for in Section 5.5.
3.8 Public Infrastructure.
(a) The Public hlfi-a tincture Work shall be completed in accordance with the
Master Project Schedule. Subject to th terms and conditions of this Section 3.8 and the other
provisions of this Agreement, Stadium D veloper shall be responsible for the management of the
design and construction of the Public frastructure Work. The Stadium Developer shall
contribute One Million Dollars ($1,000,0 ) to Public Infrastructure Costs. Any payments
Stadium Developer makes toward the Publi Infrastructure Design Costs or payment of fees,
interest, premiurns and other costs for the CM ervices Security for the Public Infrastructure will
be credited against such contribution. If the blic Infrastructure Design Costs and the fees,
interest, premiums and other costs paid for the C Services Security for the Public Infrastructure
exceed One Million Dollars ($1,000,000), then sue excess amounts shall be credited against the
Stadium Operator's payment obligations under Se tion 9.3(b) of the Operating Agreement.
Except as otherwise provided in this Agreement, the County and the City shall each fund and
pay, as and when due, one-half of all remaining Pub 'c Infrastructure Costs (except for those
noted on Exhibit G as being funded 100% by the City or y the requesting party as an addition to
or enhancement of the Public Infrastructure Work). Stadium Developer shall have no
responsibility for Unforeseen Site Conditions relating to t e Public Infrastructure Work, as the
County and the City shall be responsible for any Unforeseen Site Conditions affecting the Public
Infrastructure Work. The Government Parties shall obtal , or cause to be obtained, such
property rights as are necessary to permit the constructs n and operation of the Public
Infrastructure. Exhibit G, including any items listed thereon as llowances or alternates, contains
a description of all material elements that comprise the Public In astructure. None of the Public
Infrastructure elements listed in Exhibit G may be amended or d eted without the prior written
approval of all Parties and any value engineering and oth r cost saving alternatives
recommended pursuant to any of the subsections below shall be su 'ect to the requirement that
none of the work listed in Exhibit G be amended or deleted.
(b) The Public Infrastructure Budget contains contr gency amounts for the
Public hifrastructure Work. Stadium Developer may rto the Government
19
Representa ves uses of the contingency set forth in the Public Infrastructure Budget, but any use
of contingency amounts by Stadium Developer from the Public Infrastructure Budget shall
require the ffior approval of the Govomment Representatives. Public Infrastructure Design
Costs shall 13 paid directly by the Stadium Developer and credited against the Stadium
Developer funcl'ng requirement set forth in Section 6.4, The Stadium Developer shall update the
Public Infrastrl�ture Budget monthly, and shall provide copies thereof to the Government
1<.GiJl G6G11LdL1 V G5. 111G JLaUl U111 LJGVG1Ur1G1 A114.11 t11UV1UU L11G UUVG11.LL11UHL PQp105G11Ld.LIVCG, \N1L11
monthly progress -eports, in a form reasonably acceptable to the Government Representatives,
relating to the Pub 'c Infrastructure Costs, including all expenditures by the Stadium Developer
during the preceding month. The Public Infrastructure Budget updates and the monthly progress
reports shall be in s bstantially the same form as the monthly updates and progress reports
relating to the Baseball tadium Project.
(c) Ea Government Party shall, upon request of any Party, provide evidence
of the fielding for its shay of the Public Infrastructure Costs, The County and the City shall
each fiend and pay one -hal of the cost any Public infrastructure Cost Overrun described in
Section 6.5.2. and the cost f any Change Order relating to the Public Infrastructure Work;
provided, however, that (i) i any Party requests any additions to, or erdiancernents of, the
elements of the Public Infras acture described in Exhibit G hereof, then the cost for such
enhancement or addition shall be paid solely by the Party requesting the addition or
erihancement, including any Sta 'um Cost Overruns, Governmentally Caused Overruns and
Public Infrastructure Cost Overrun associated with such addition or enhancement; and (ii) for
those items noted on Exhibit G as b 'ng funded 100% by the City, the cost for such items shall
be paid solely by the City, includin any Stadium Cost Overruns, Governmentally Caused
Overruns, and Public Infrastructure Cost Overruns associated with such addition or
er�lrancement, except to the extent sec overrun was caused by the Stadium Developer's
negligent performance of its duties under is Agreement or by Public Infrastructure Delay and
Scheduling Overruns. Notwithstanding the foregoing, the cost of any work that is required in
order for the Public Infrastructure to comp with Applicable Laws shall be shared equally
between the County and the City.
(d) The Stadium Developer shahire and pay the Architect, civil engineer and
other design professionals required to design the Public Infrastructure Work. The Stadium
Developer shall cause each design professional fo the Public Infrastructure Work to carry
professional liability and other insurance coverages as re customary, and in amounts customary,
for work of this nature. The Architect Contract fo the Public Infrastructure Work shall
(i) contain substantially the same terms and conditions s contained in the Architect Contract
referenced in Section 4.2 hereof, (ii) require the Architect o separately allocate and account for
its fees and expenses between Stadium Project Costs and P blit Infrastructure Costs; (iii) grant
Stadium Developer, the County and the City the right to a dit the books and records of the
Architect to confirm whether Stadium Project Costs and Pub 'c Infrastructure Costs have been
property allocated and accounted for; (iv) require that all applic tions for payment and invoices
clearly delineate between payment requested for services pro ided in connection with the
Baseball Stadium and payment requested for services provided i connection with the Public
Infrastructure; (v) require that the Design Documents produce by the Architect clearly
distinguish between Baseball Stadium Work and Public Infrastructure Work so that bid packages
can separately identify, and distinguish between, Baseball Sta hum Work and Public
20
ork; and (vi) require that the Architect coordinate its services for the Public
Infrastructure V�y
Infrastructure witkits its services for the Baseball Stadium and that the Architect waive any claim it
may have against eveloper, the County or the City to the extent that such claim is based on a
delay, default or oth4 failure on the part of the Architect to coordinate its services for the Public
Infrastructure Work with its services for the Baseball Stadium Work, The Government
Representatives shall h ve the right to review and approve the Design Documents relating to the
Public InfrastructureWok in the manner and using the same procedures and time periods for
review as are set forth in S etion 4.3 for the Stadium Design Documents, provided, however, that
the Governnent Representa 've's approval of the design documents for the Public Infrastructure
Work shall not be subject to the same standards of approval as apply to the Baseball Stadium
Project, and the Government R presentative may withhold approval of the design documents for
the Public Trnfrastructure Work i ,its reasonable discretion.
(e) The Stadium Developer shall hire the Construction Manager for the Public
Infrastructure Work subject to the Board's approval by two-thirds of the Board membership and
the Commission's approval by four-fifths of the Commission membership of a bid -waiver under
Section 255.20, Florida Statutes. If sub h bid waiver is not approved within forty-five (45) days
after the date of approval of this Agree ent by the Board and the Commission, the County and
the City agree to use reasonable and dilig • it efforts to hire a contractor or construction manager
for the performance and management of th Public Infrastructure Work as quickly as reasonably
possible, in accordance with Applicable k w. Within forty-five (45) days after the date of
approval of this Agreement, the County and the City, with the Stadium Developer's assistance
shall negotiate the fee, general conditions a ount, insurance costs, and the pre -construction
services amount that will be. charged by the Cc struction Manager for the Public Infrastructure
Work. If, for any reason, the County and City c nnot obtain from Hunt/Moss, a Joint Venture,
satisfactory terms and conditions for the Public astructure Work, then the County and City
may negotiate with other construction management firms for the role of Construction Manager
for the Public Infiastructure Work. As part o its obligations under the Construction
Management Contract, the Construction Manager sh 11 prepare a schedule of values for the
Public Infrastructure Work that allocates the cost of th Public Infrastructure Work among the
fee, the general conditions amount, the insurance costs, the pre -construction services and the
various categories of trade work that comprise the Public frastructure Work. In addition, the
Construction Management Contract for the Public In structure Work shall (i) contain
substantially the same terms and conditions as contained in the Construction Management
Contract referenced is Section 5,2 hereof; (ii) require the Co struction Manager to separately
allocate and account for Stadium Project Costs and Public nfiastructure Costs; (iii) grant
Stadium Developer, the County and the City the right to audit e books and records of the
Construction Manager to confirm whether Stadium Project Costs a d Public Infrastructure Costs
have been properly allocated and accounted for; (iv) require that all a plications for payment and
invoices clearly delineate between payment requested for Baseball St dium Work and payment
requested for Public Infrastructure Work; (v) require that bid packages e prepared in a manner
that separately identifies, and distinguishes between, Baseball Stadi m Work and Public
Infrastructure Work; (vi) require the Construction Manager to use its b st efforts to propose
value engineering and other cost saving alternatives to cause the Public In structure GMP (or
then estimated construction cost, as applicable) to be within the construction cost limitation for
the Public Infrastructure Work set forth in the Public Infrastructure Budget; (vi require that the
Construction Manager waive any claim it may have against Developer, the Coun or the City to
21
the extent that such claim is based on a delay, default or other failure on the part of the
Construction Manager to properly schedule and coordinate the Public Infrastructure Work with
the Baseball Stadium Work; (viii) require that the Construction Manager be responsible for
delays, and cost overruns associated with such delays, that are caused by delays in the
performance of the Public Infrastructure Work by the Construction Manager or its
subcontractors (including additional costs associated with impacts to the Stadium Work) or
caused by Construction Manager's failure to properly coordinate the Baseball Stadium Work and
the Public Infrastructure Work; (ix) require that the Construction Manager provide a guaranteed
maximum price for the Nrl lie Infrastructure Work ("Public Infrastructure GMP") that is
consistent with the construction cost limitation for the Public Infrastructure Work set forth in the
Public Infrastructure Budget 4nd otherwise acceptable to the County and the City; and (x)
provide that the Public Infrastructure GMP shall separately identify a construction contingency
that shall be dedicated solely td, the Public Infrastructure Work. At the same time that the
Construction Manager is required\to present its proposal for an Public Infrastructure GMP, the
Stadium Developer shall also solicit a proposal from the Construction Manager for the
Construction Manager 's fees and g' -neral conditions sum based on the Construction Manager
managing the Public Infrastructure `Work on a "cost plus fee" basis without a guaranteed
maximum price. Prior to establishmentof the Public Infrastructure GMP, if any of the estimates
of the Public Infrastructure Costs based\on the then current Design Documents indicates that the
Public Infrastructure Costs will exceed 'the construction cost limitation set forth in the Public
Infrastructure Budget, then the Constrdetion Manager shall be required to propose value
engineering recommendations so as to cau e the estimates to be within the Public Infrastructure
Budget. Any such value engineering reco lendations shall be subject to the approval of the
County and the City, and the Government P�rties agree to reasonably cooperate with any value
engineering recommendations made to cause\the Public Infrastructure GMP to be within the
construction cost limitation for the Public\ Infrastructure Work set forth in the Public
Infrastructure Budget. Any cost savings, includig the construction contingencies, relating to the
Public Infrastructure Work shall be shared equally, by the County and the City, unless otherwise
agreed to by the Government Parties.
(f) If Hunt/Moss, a Joint Venture, is ultimately selected as the Construction
Manager for the Public Infrastructure Work, before t e Construction Manager commences its
services related to the Public Infrastructure, the Constru tion Manager shall execute, deliver to
the County and City (with copies to the Stadium Develop ), and record in the public records of
the County, the following payment and performance bon(i) prior to establishment of the
GMP for the Public Infrastructure Work pursuant to the Co struction Management Contract, a
payment and performance bond in an amount equal to the valu of all preconstruction services to
be provided by the Construction Manager under the Constructs n Management Contract, (ii) to
the extent that, prior to establishment of the GMP for the Public ifrastructure Work pursuant to
the Construction Management Contract, the Construction Manage enters into any subcontracts
or purchase orders, a payment and performance bond from the pplicable subcontractor or
supplier in an arnount equal to the total subcontract or purchase orde amount, and (iii) upon the
establishment of the GMP pursuant to the Construction Management Contract, a payment and
performance bond in an amount equal to the total cost of con truction of the Public
Infrastructure. In the alternative, if a general contractor other than Hunt oss, a Joint Venture,
is selected as the general contractor for the Public Infrastructure Work, before such general
contractor commences its services related to the Public Infrastructure, th general contractor
22
shall execute, deliver to the County and City (with copies to the Stadium Developer), and record
in the public records of the County, a payment and performance bond in an amount equal to the
total cost of construction of the Public Infrastructure, Each payment and performance bond
required above shall be \,in compliance with the terms of Section 255.05, Florida Statutes,
specifically in compliance 'with the requirements of Section 255.05(1)(a) and (c), 255.05(3), and
255.05(6), shall name the County, the City and the Stadium Developer beneficiaries thereof, as
joint obligees. Each payrhent made to the Construction Manager for its performance of
construction management services for the Public Infrastructure Work (i.c., management fee,
profit, office overhead, genera), conditions performed or provided by the Construction Manager
as part of its construction management services and cost of work that is self -performed by the
Construction Manager), shall b8, made by a dual party check (or other dual party payment
method) in the name of the Stadium Developer and the Construction Manager,
(g) If Hunt/Moss ;,a Joint Venture, is ultimately selected as the Construction
Manager for the Public Inirastructur�Work, then before the Construction Manager continences
its services related to the Public Infrakructure, (i) the Stadium Developer shall execute, deliver
to the County and the City, and record in the public records of the County,' a payment and
performance bond for the total cost of`'onstruction of the Public Infrastructure in compliance
with the terms of Section 255.05, FloridStatutes, naming the County, the City and the Team
Affiliate beneficiaries thereof, as obligees,.; or (ii) in lieu of such bond, the Stadium Developer
shall file with the County an alternative fora of security in the form of cash, irrevocable letter of
credit, or other security of the type listed in Lection 255.05(7) or Part II of chapter 625, Florida
Statutes (the "CM Services Security"), in antmount equal to the total cost of the construction
management services to be performed by the Nnstruction Manager for the Public Infrastructure
Work (i.e., management fee, profit, office overh ad, general conditions, and cost of work that is
self -performed by the Construction Manager i the payment and performance of such self
performed work is not covered by the paymeit and performance bond provided by the
Construction Manager to the County and the City s provided in Section 3.8(f)), as depicted in
the initial Schedule of Values divided by the to al number of months that comprise the
performance period of the construction managemd \anl ces, all in accordance with the
provisions of Section 255.05(7), Florida Statutes. Thof the CM Services Security for
the Public Infrastructure Work shall be adjusted in actwith such formula as the total cost
of the construction management services and performod are adjusted by Change Order.
By way of example, if the aggregate cost of the cion management services equals
$3,500,000 and such services are required for a periodonths, the amount of the required
CM Services Security would be equal to $100,000. Thm Developer shall be permitted to
use the CM Services Security for the Public Infrastruc\apciated
make its final payment to the
Construction Manager for the Public Infrastructure Work. In tent the CM Services Security
for the Public Infrastructure Work is used to cover the cost with the construction
management services as contemplated herein, the Stadium Dper shall replenish the CM
Services Security for the Public Infrastructure Work in an arnoe�qual to such draws such that
the CM Services Security for the Public Infrastructure Work at. all ti nes is equal to the amount
required by this section. Fees, interest, premiums and other costs paid Io
the Stadium Developer
for CM Services Security for the Public Infrastructure Work sha 1 be considered Public
Infrastructure Costs and shall be credited against the Stadium 1) veloper's contribution
referenced in Section 3.8(a).
23
(h) The Construction Manager shall prepare bid packages for the Public
Infrastructure Work and competitively bid each bid package in accordance with applicable state
and local law. Bidding for any roadwork shall be subject to the lowest responsive, responsible
bidder rules, which permit the Construction Manager to pre -qualify bidders. The Construction
Manager shall be permitted to negotiate price with the lowest responsive, responsible bidder for
roadwork, and with any bidder it deems highest ranked for other portions of the Public
Infrastructure Work. The County and City Representatives shall be permitted to review any of
the Construction Manager's bid 'oackages and bid award process for compliance with state and
local law. The County and City",, Representatives (or their designees) shall attend the weekly
progress meetings relating to the Public Infrastructure Work and Public Infrastructure Costs and
shall be available to review any Change Orders relating to the Public Infrastructure Work. The
approval of the County Representatl`ve and the City Representative shall be required for all
Public Infrastructure Work Change 0�ders. For any Public Infrastructure Change Orders, the
Stadium Developer shall be permitted tb perform value engineering to minimize or eliminate any
impact to the Public Infrastructure Budget, so long as such value engineering does not cause the
elimination of a material or necessary el rnent of the Public Infrastructure Work. The County
and City Representatives shall review any uch Public Infrastructure Work Change Order within
ten (10) Business Days, The County and ity Representatives' approval of any change orders
requiring approval hereunder shall not be u �asonably withheld, delayed or conditioned.
(i) If a Public Infrastructure Cost is incurred as a result of the error, omission,
default or other failure to perform by the Archit tor the Construction Manager pursuant to their
respective contracts, the Government Parties, a a third party beneficiaries of the Architect
Contract and the Construction Management Cont act, shall have the right to pursue recovery
against the Architect or the Construction Manager, 4 the case may be. The Stadium Developer
shall cooperate with the Government Parties in conne lion with its pursuit of any such claim.
0) The Stadium Developer shall eau e the Public Infrastructure Work to be
included within the insurance policies to be purchased _._ maintained under Sections 8.1 and 8.2
hereof. Such polices shall include, as appropriate, thechitect, Construction Manager and
subcontractors, and shall contain the same named insureds, additional insureds, coverages and
minimum limits as are set forth in Sections 8.1 and 8.2.
(k) With respect to any utility work that is art of the Public Infrastructure
Work, the utilities will be brought to the property line of the Ba eball Stadium Site, and utility
work within the property line of the Baseball Stadium Site shall b part of the Baseball Stadium
Work. The Public Infrastructure shall not include any Work to bee mpleted within the Baseball
Stadium Site. The Public Infrastructure shall not include any Work to be completed within the
City Parking Site (as defined in the City Parking Agreement), except ' -s needed for the Baseball
Stadium Project.
(1) The Parties acknowledge that certain costsb ay not be allocable
specifically to the Public Infrastructure Work or the Baseball Stadium ork and hereby agree
that such costs shall be allocated between the Baseball Stadium rk and the Public
Infrastructure Work based on the respective percentages that the respeeti budgets for each
scope of Work bears to the total costs for all Work reflected in the Stadiumroject Budget and
the Public Infrastructure Budget (the "Cost Allocation Percentage"). The Cost Allocation
24
Percentage shall be adjusted based upon the respective costs reflected in the first Schedule of
Values submitted and accepted after establishment of the GMP for the Public Infrastructure
Work or the Baseball Stadium Work and shall be subject to final adjustment based upon final
reconciliation of the Public Infrastructure Costs and the Stadium Project Costs relating to the
Public Infrastructure Work and the Baseball Stadium Work, The Cost Allocation Percentage
shall be applied to the, costs of the "developer controlled" insurance program and all other
unallocated costs that tie Parties agree to include. If a Party wishes to include an unallocated
cost as being subject to the Cost Allocation Percentage, then it shall give the other Parties
advance notice thereof and the Parties shall meet in good faith to determine whether the cost is
properly characterized as an unallocated cost. If the Parties are unable to agree whether a cost,
expense or claim by a third party providing services to the Baseball Stadiurn or the Public
Infrastructure is chargeable to, `pr otherwise in part allocable to, the Baseball Stadium or the
Public infrastructure, then such d%spute between the Parties shall be resolved by Expedited ADR
pursuant to Section 14.2 hereof.
(in) Notwithstanding,anything in this Agreement to the contrary, if Hunt/Moss, a
Joint Venture, is not engaged as the Construction Manager for the Public Infrastructure Work,
then (i) the Stadium Developer shall have no obligations or responsibilities under this Agreement
to the manage the design or constructior't of the Public Infrastructure Work, (ii) all references in
this Agreement to such obligations or rl sponsibilities shall be deemed to be obligations and
responsibilities of the Government Parties, or the design and the management of the construction
of the Public Infrastructure Work, (iii) any f ublic Infrastructure Delay and Scheduling Overrun
shall be considered a Governmentally Cau4ed Overrun except for those cost overruns arising
from delays resulting from the performance by the Architect for the Baseball Stadium of its
obligations under the Architect Contract relatin, to the Baseball Stadium Work, (iv) the Stadium
Developer shall not have to make the $1,000, 00 contribution to Public Infrastructure Costs
referenced in Sections 3.8(a) and 6.4(a)(ii), and eh contribution shall instead fund the Stadium
Project Costs, (v) the respective contributions of tl Government Parties in Sections 6.2 and 6.3
shall each be decreased by $500,000, and (vi) the P res shall amend this Agreement to require
the Government Parties to be responsible for the
desi and the management of the construction
of the Public Infrastructure Work, subject to terms -rd conditions approved by the Stadium
Developer, the Board and the Commission, including, b. t not limited to, necessary amendments
to the Preliminary Milestones Schedule; provided, howe or, if such amendment is not, or will
not be, effective on or before Jule 1, 2009, the Board, at a publicly noticed meeting, shall
consider terminating this Agreement in accordance with Sec 'on 11.1.1.
3.9 Other Development.
(a) The City, or an agency or instrumentality%ommercial,
f the City, either by itself or
with third party joint venture partners, intends to develop retail and other
development on the Development Site, which site shall include, at a minimum, the Entire Site,
but excluding the Baseball Stadium Site ("Other Development'). Th City shall keep the County
and the Team Affiliates informed of any plans it develops or modifi for Other Development.
The City may, subject to the provisions of this Section 3.9, (x) pursue t e Other Development on
such terms and conditions as it may determine, (y) transfer the 'ght to pursue Other
Development to a third party for such consideration as it determines, or (z joint venture with the
Team, or cause a third party to joint venture with the Team, to pursue Other evelopment.
25
(b) The City acknowledges that the success of the Entire Site will depend on,
among other things, the proper coordination of all of the proposed construction and uses on the
Entire Site. The City further agrees, and shall require and cause all users of the Other
Development, to comply with the following restrictions:
(i) Other Development shall be architecturally harmonious with the
Baseball Stadium and the fagade features of the Other Development shall have no highly
reflective materials facing the Baseball Stadium.
(ii) During the construction period for the Baseball Stadium, the Public
Infrastructure and the ParlA4ig Facilities, the Baseball Stadium, Parking Facilities and Public
Infrastructure contractors sh, 11 have job site priority within the limits of the construction
easements required by Sectio 3.5. The City shall require that any work to be performed in
respect of the Other Develop n ent be done without causing a delay in the completion of the
Baseball Stadium and the Public Infrastructure by the Substantial Completion Dates specified in
the Master Project Schedule. n addition, the City shall not, following the Substantial
Completion date, allow any subst tial or noisy construction activity in respect of the Other
Development that materially interfes with the use of the Baseball Stadium during the period
from two (2) hours before and one (1) our after MLB Home Gaines or MLB Jewel Events, or
other Stadium Events expected to have tendance of at least 5,000 people.
(iii) The followi uses shall not be permitted within the Other
Development: (A) ticket brokerage busine es (other than brokerage services provided by a
Team Affiliate for Major League Baseball g roes and by the Soccer Team for Major League
Soccer games), (B) retail businesses whose pri ary business directly competes with the naming
rights sponsors of the Baseball Stadium at the time the retail business is established at the
Development Site, except for business located in y hotel developed within the Development
Site, (C) QSRs, (D) portable or temporary food sta ons, or the give-away of food or beverage,
during the period fi-orn three (3) hours before and one (1) hour after MLB Home Games or MLB
Jewel Events, or other Stadium Events expected to ha attendance of at least 5,000 people, (E)
the sale of beer in an outdoor bar (beer garden)) within ne hour before MLB Home Games or
MLB Jewel Events, or other Stadium Events expected to have attendance of at least 5,000
people, except in any bar located in any hotel developed ithin the Development Site, and (F)
the promotion and sale of baseball branded or themed mem rabilia and merchandise by persons
other than a Team Affiliate. The City shall not permit the us of Other Development that in any
material respect interferes with the operation of the Baseball St dium or the Parking Facilities for
MLB Home Games or MLB Jewel Events, or other Stadium Ev is expected to have attendance
of at least 5,000 people. To the extent that the Other Develop lent may result in the overall
development within the Entire Site being considered a developm t of regional impact by the
State, when aggregated with the Baseball Stadium and/or Parking facilities, the City shall be
responsible for addressing issues or processing the DRI -related appli ations and any mitigation
or other obligations associated therewith.
(iv) The Team or any Team Affiliate and the ounty shall have the
right to review (but not approve) the plans and specifications as well as le ses in respect of any
Other Development for a reasonable period prior to the construction of such ther Development
or prior to the execution of such leases.
26
The City and the Stadium Developer agree that the foregoing restrictions shall run with the
Development Site land through the term of the Operating Agreement, or through construction in
the case of the first two sentences of Section 3,9(b)(ii), The City, the County and the Stadium
Developer (if appropriate) shall record an appropriate legal instrument in the Public Records of
Miami -Dade Count}',,evidencing the continuing applicability of these restrictions.
3.10 Cohvevance of Lots 3 & 4. Contemporaneously with the conveyance of the
Baseball Stadium Site, the County shall convey to the City, and the City shall accept from the
County, title to Lots 3 and 4 by County Deed in substantially the form provided in Section
125.411, Florida Statutes (hM), which are legally described as follows: LOTS 3 & 4 BLOCK
34, LAWRENCE ESTATE UND CO'S SUBDIVISION according to the Plat thereof recorded
in Plat Book 2 at Page 46 of he Public Records of Miami -Dade County, Florida (the "County
Lots"), free and clear of all Li ns of record, except for any exceptions that are accepted by the
City (the "County Lots Pennitt d Exceptions"). Within ten (10) days following the effective
date of this Agreement, the Count shall deliver to the City, at the County's cost, a title insurance
commitment committing to insure e City's acquisition of the County Lots, having all effective
date no earlier than January 15, 200 . Within thirty (30) days following its receipt of the title
commitment, the City shall notify the County of any condition which would render the title for
the County Lots umnarketable or to \arking
minished marketability or impair the use of the
County Lots for the development of the Facilities ("County Lots Title Defects"). The
County shall use reasonable commercial to cure any County Lots Title Defects so noticed
by the City within 30 days of its receie title commitment (the "County Cure Period"),
provided that (i) the County shall not bred to institute any litigation or eminent domain
proceedings, and (ii) the County shall nquired to expend funds for such purpose, other
than the fees of its legal counsel. In the event ' e County fails to cure such title defects within
the such County Cure Period, the City may, wi iin 5 days thereafter, elect to terminate this
Agreement by written notice to the other Parties a provided in Section 11.1.1, or accept such
title that the County may be able to convey; provid d that in no event shall the City terminate
this Agreement for the County's failure to cure a C my Lots Title Defect subsequent to the
deadline for termination for convenience under Secti n 11.1.1. If this Agreement is not
terminated by the City within the allocated time peri ,the City shall be deemed to have
accepted the County Lots in the condition existing as f the conveyance date and to have
acknowledged that, the County does not make and spe 'fically negates and disclaims any
representations and warranties as of that date regarding the ounty Lots including specifically,
but without limitation, environmental, soil and subsoil Gond ions and compliance with laws,
rules and regulations. Furthermore, the City agrees not to initia e any claims or suits against the
County for any damages it suffers from any condition, incl ding, without limitation, any
envirornnental condition on the County Lots existing prior to t e date upon which the City
accepts title to the County Lots, but shall have the right to join th County in the case of any
third party claims or suits filed against the City, arising from such en 'ronrnental condition.
27
ARTICLE IV
DES
4.1 Stadium Dcsi Pr 'ect Pro am Statement. The Stadium Developer shall
manage and control the design of tie Baseball Stadium, including the hiring of the Design
Professionals and the development o all of the Design Documents. The Stadium Developer
shall direct the Design Professionals o prepare Design Documents that are consistent in all
material respects with the Project Progr`arm Statement, the design selected by the Design Team
under the BSA and all Applicable Laws The Project Program Statement is attached hereto as
Exhibit D, The Project Program Stateme t shall be deemed amended to conform to the Design
Documents approved m accordance withiSection 4.3. The Stadium Developer may otherwise
amend the Project Program Statement from ime to time; provided, however, that the amendment
shall not be effective without the prior written consent of the City and the County
Representatives if the effect of the amendme t is to; (a) cause the Targeted Completion Date to
be missed; (b) cause the projected total Stadi in Project Costs to exceed or further exceed the
Stadium Project Budget attached hereto as Exh it H (as the same may be amended from time to
time to reflect approved increases) unless th Stadium Developer has made arrangements
reasonably satisfactory to the County and the ity Representatives to fund the excess cost;
(c) pose a material risk to public safety; (d) eli inate a materially important programmatic
element from the Project Program Statement or ma erially alter the design intent of the exterior
of the Baseball Stadium; (e) cause the projected to 1 Public Infrastructure Costs to exceed or
further exceed the Public Infrastructure Budget (as th same may be amended from time to tune
by the City and the County, as the case may be, to r fleet approved increases), including any
increased costs caused by delays in completing the Pub is Infrastructure beyond the Substantial
Completion Date set forth in the Master Project Schedul - (f) result in a Governmentally Caused
Overrun unless the Stadium Developer and the Team wai e, in writing, any claims it may have
against the County and the City for Govennnentally Cause Overruns resulting from the change;
or (g) likely to increase the cost of the Parking Facilities or delay substantial completion of the
Parking Facilities beyond the date anticipated for such subst tial completion as set forth in the
Master Project Schedule. Each tirne the Project Program Statement is amended and the
amendment is of the kind that does not require Government epresentative approval, no later
than ten (10) Business Days from the date of the amendme ,the Stadium Developer shall
provide the Government Representatives an updated Project Pro am Statement, identifying the
amendment(s) and the reason(s) for the amendment(s). Each time the Stadium Developer
proposes to amend the Project Program Statement and the amend m lit is of the kind that requires
County and City approval under one of the above listed reasons, he Stadium Developer shall
provide the Government Representatives the proposed am ell
t to the Project Program
Statement detailing the reasons for the amendment and its effect on t e Baseball Stadium Project
and the Public Infrastructure Work, In any instance in which Count and City approval of an
amendment to the Project Program Statement is required, the County a d City shall provide their
respective response within ten (10) Business Days following receipt of he proposed amendment
and their respective approval shall not be unreasonably withheld or played. Failure by the
County and City to respond within such ten (10) Business Days shall e deemed an approval.
Any disputes under this Section 4.1 shall be resolved by Expedited ADR order Section 14.2. In
the event the County or the City does not approve the amendment, the di approving party shall
provide to the Stadium Developer within said ten (10) Business Day perio , detailed comments
AM
outlining the reason why such party does not approve the proposed amendment. In the event the
proposed amendment is not approved or deemed approved by the County or the City, the
Stadium Developer shall either continue the process until such time as the County and the City
have approved the amei dment or submit the dispute to Expedited ADR pursuant to Section 14,2.
Stadium Developer agre s that none of the Design Documents will modify a material element of
the furnishings, fixtures and equipment planned for the Baseball Stadium (as reflected in the
Project Program Statement) without the prior consent of the Government Representatives,
4.2 Design Professionals. The Stadium Developer has retained the Architect for
architectural and design sei ices required in connection with the design and construction of the
Baseball Stadium. All arch tectural and engineering fees and sums paid to the Architect and
other Design Professionals slall be paid directly by the Stadium Developer and not from the
County Account or the City Account, with such fees and sums paid to be credited against the
Stadium Developer funding requirement set forth in Section 6.4. In no event shall such fees and
sums incurred prior to March ��a 2008 be credited against the Stadium Developer funding
requirement. In no event shall to County or the City be obligated in any way to pay or
reimburse the Team and/or the Stadi m Developer for any Design Professional fees, except if the
County or the City owes the Tea or the Stadium Developer damages for breach of this
Agreement or another Stadium A cement by the County or City, as applicable.
Notwithstanding and prevailing over a Bing herein and to the contrary, any damages for
Design Professional fees and costs shall e limited to fees and costs paid under the Architect
Contract for fees or sums incurred on or afte March 3, 2008. The Stadium Developer shall enter
into an architectural services agreement with he Architect (the "Architect Contract"), and may
enter into other architectural services agreen nts with other Design Professionals, for the
architectural and design services required in con ection with the design and construction of the
Baseball Stadium and, subject to terms and conditi ns which must be expressly approved by the
County and the City, the design and constructionof 7e Public Infrastructure. The architectural
services agreement(s) shall be consistent with the tern s of this Agreement and shall at all times
contain the requirements set forth below. TheStadium eveloper shall submit to the County and
the City, for their review and approval, the architectural services agreement(s) at least ten (10)
days prior to its execution. With respect to the pro 'sions of the architectural services
agreements) relating solely to the design and construction o the Baseball Stadium, the County's
and City's approval shall be limited to the reasonable d termination that the architectural
services agreement(s) complies with the express requirements set forth in this Agreement, and
such approval (or responsive comments) shall be provided within seven (7) days. The
Government Parties' approval of the Architect Contract shall n t be deemed a waiver of any
rights of the Government Parties contained in this Agreement. Th Architect Contract and such
other design -related contracts, as applicable, include and shallinclu (a) a provision requiring a
5% CBE goal for the Baseball Stadium Project and Public Infrastruc ure Work, which goal was
established following the review and recommendation of the ounty's Small Business
Department, including the monitoring procedures set forth in Section 5.14 hereof, and a
provision requiring the Architect to make reasonable good faith efforts t comply with the terms
of the CBE-A/E Program; understanding, however, that the Governme t Parties will not be
required to expend any additional design fees above the Public Infrast cture Design Costs
(which shall be paid by the Stadium Developer) in order to satisfy the requi ments of the CBE-
A/E Program; (b) provisions requiring the Architect and any other Design rofessionals with
which the Stadium Developer has any contracts to comply with other pplicable Laws;
29
(c) provisions that such contracts are governed by Florida law and venue shall lie exclusively in
Miami -Dade County, Florida; and (d) provisions under which the Architect Contract and any
other contracts between the Stadium Developer and any other Design Professionals may be
assigned to the County upon a default thereunder by the Stadium Developer. The Stadium
Developer shall not amend any of the above -referenced provisions of the Architect Contract
relating to the Baseball Stadium, or any portion of the Architect Contract or such other Design
Professional contract`=that affects the Public Infrastructure Work, without the consent of the
Govenunent Representatives, which consent shall not be unreasonably conditioned, withheld or
delayed. In any instande in which Govenunent Representative approval of such amendment is
not required, the Stadium, Developer shall provide a copy of the amendment to the Government
Representatives within five (5) days after the date it is executed. In any instance in which
Government Representative approval of such amendment is required, the Stadium Developer
shall provide the proposed a� endment to the Government Representatives, and the Govermnent
Representatives shall provide leir respective responses within ten (10) Business Days following
receipt of the proposed amen merit. Failure by the Government Representatives to respond
within such ten (10) Business ays shall be deemed an approval, In the event a Government
Representative does not approve ie amendment, such Government Representative shall provide
to the Stadium Developer within si ten (10) Business Day period, detailed comments outlining
the reason why such Govermnent Rresentative does not approve the proposed amendment. h1
the event the proposed amendment ' not approved or deemed approved by the Government
Representatives, the Stadium Develop shall either continue the process until such time as the
Government Representatives have apprved the amendment or submit the dispute to Expedited
ADR pursuant to Section 14.2. Such Ex edited ADR may not expand or otherwise modify the
express delegations of authority grante to the Govenlment Representatives under this
Agreement. The Stadium Developer agrees p pay all undisputed amounts due and owing under
the Architect Contract.
4.3 Design Documents.
(a) The County and City Repres tatives shall have the right to review and
approve the Schematic Design Documents, the sign Development Documents and the
Construction Documents for the Baseball Stadium fo general conformance with the Project
Program Statement or the previously approvedDesign ocuments, as applicable. To assist the
County and City in their review, the Stadium Developer sh all cause the..Architect to provide with
any fixture Design Documents a summary of any changek that it reasonably believes would
require the County's and City's approval under this Agree lent. Such review and approval
(i) shall be limited to the confirmation that the applicable esign Documents are generally
consistent in all material respects with the Project Program State. cut or the previously approved
Design Documents, as applicable, and (ii) shall not otherwi be unreasonably withheld,
conditioned or delayed. The Government Representatives shall 11 ave the right to review and
approve the Schematic Design Documents, the Design Develo 11ent Documents and the
Construction Documents for the Public Infrastructure as specifical set forth below in this
Section 43, Such approvals shall not be unreasonably withheld, conditi ned or delayed.
(b) With respect to the design of the Baseball Stadi the County and City
Representatives shall have ten (10) Business Days after the receipt of t e applicable Design
Documents referenced in Section 4.3(a) to confirm that such Design DoeLknents are generally
30
consistent in all material respects with the Project Program Statement or the previously approved
Design Documents, as applicable. If each Government Representative does not so confirm that
the applicable Design Documents are generally consistent in all material respects with the
Project Prograt, tatement or the previously approved Design Documents, as applicable, such
Government Repi�sentative shall provide to the Stadium Developer, within that ten (10)
Business Day periot�, detailed comments setting forth the reasons it believes that the applicable
Design Documents a p not generally consistent in all material respects with the Project Program
Statement or the previously approved Design Documents, as applicable. Either Government
Representative's failure to provide such comments shall not be deemed a default by the City or
County (as applicable), but shall result in the applicable Design Documents being deemed
approved as provided bel w. If, within such time, either Government Representative does not
properly reject the applicab e Design Documents, then such Government Representative shall be
deemed to have approved he applicable Design Documents. Similarly, if a Government
Representative rejects only c air specified elements in the applicable Design Documents, then
the elements to which it does lot object shall be deemed approved. If the Stadium Developer
disagrees with any of the Gove lent Representative's comments, then the Stadium .Developer
shall meet with the Govermme t Representative to resolve any items of dispute to their
reasonable satisfaction and each s all use good faith efforts to resolve any disagreements in an
expeditious manner so as not tolay production of the Design Documents. The Stadium
Developer shall cause the Architect tO revise the applicable Design Documents (or to incorporate
such modifications in the following se of Design Documents) to address any comments raised
by the Government Representative(s) wr h which the Stadium Developer agrees and shall submit
revised Design Documents to both overmnent Representatives for their review and
confirmation as provided above. That Go eminent Representatives shall have five (5) Business
Days from the receipt of the revised Design ocuments to review and approve them. The failure
of the Government Representatives to respon within such five (5) Business Day period shall be
deemed approval,
(c) With respect to the design of the Public Infrastructure, the Govermnent
Representatives shall have ten (10) Business Day after. the receipt of the applicable Design
Documents referenced in Section 43(a) to appro e such Design Documents. If either
Govennnent Representatives does not approve the pplicable Design Documents, then the
Govet7nnent Representative shall provide to the St ilium Developer, within that ten (10)
Business Day period, detailed comments setting fol the reasons that the Government
Representative has not approved the applicable Desi Documents. The Government
Representative's failure to provide such comments shall no be deemed a default by the City or
County (as applicable), but shall result in the applicable esign Documents being deemed
approved as provided below. If, within such time, either Go�rnment Representative does not
properly disapprove the applicable Design Documents, then srl\. h Government Representative
shall be deemed to have approved the applicable Design D� \cuins. Similarly, if the
Govenirrient Representative rejects only certain specified eleme applicable Design
Docurnents, then the elements to which it does not object shalled approved. If the
Stadium Developer disagrees with any of the Government Repress comments, then the
Stadium Developer shall meet with the Government Representresolve any items of
dispute to their reasonable satisfaction and each shall use goofforts to resolve any
disagreements in an expeditious mariner so as not to delay produce Design Documents
for the Public Infrastructure, The Stadium Developer shall cauchitect to revise the
31
applicable Design Documents to address any comments raised by the Government
Representative with which the Stadium Developer agrees and shall submit revised Design
Docurnci is to the Government Representative for its review and confirmation as provided above.
The Go=ts
Representative shall have five (5) Business Days from the receipt of the revised
Design to review and approve them. The failure of the Government Representative
to respond withih such five (5) Business Day period shall be deemed approval.
(d) If the Parties are unable to resolve any disagreements under this
Section 4.3, then any arty may file for Expedited ADR pursuant to Section 14.2.
(e) The Stadium Developer may revise the Design Documents for the
Baseball Stadium from tl e to time provided that they remain consistent in all material respects
with the Project Prograhi Statement or the previously approved Design Documents, as
applicable.
(f) The P mics understand and agree that the purposes of the design process
set forth in Section 4.3 is to ause the Architect and the Parties to deliver a first-class baseball
stadium consistent with the stat dard set forth in Article II.
4.4 Use of PIans. The Architect Contract shall grant the Stadium Developer and the
County and the City (in the case f the City, such license shall only become effective in the
instance that the Baseball Stadium 'te reverts to the City) and subject to the security and other
procedures set forth in Chapter 119 lorida Statutes, a perpetual license to use the Design
Documents in connection with the de elopment, operation and modification of the Baseball
Stadium, such license being conditioned, however, on the payment of all undisputed amounts
due and owing under the Architect Contra . All construction documents, plans, specifications,
drawings, models, samples and the like ubmitted to the County, the City and/or their
representatives pursuant to this Agreement ar for informational purposes only, except to the
extent (a) otherwise expressly provided herein, r (b) they are submitted to the County and the
City for regulatory or permitting purposes. The ounty, the City and their representatives shall
not use Design Documents produced or deve ped in connection with the design and
construction of the Baseball Stadium for any pu ose other than as contemplated by this
Agreement and the other Stadium Agreements. Thi provision shall survive the expiration or
earlier termination of this Agreement.
4.5 LEED Certification. The County and ne City have inforined the Stadium
Developer that they desire to achieve LEED silver status ertification for the Baseball Stadium
Project. The County and City shall each pay 50% of the inc emental cost to achieve such LEED
silver status certification, net of the $1,000,000 to be provi ed by the Stadium Developer on
behalf of Major League Baseball for such purpose (the "Incren ental LEED Cost"). Incremental
LEED Costs shall not include any design or construction eler ent which qualifies for LEED
points and which is required as a matter of Applicable Law at tl e time the Stadium Developer
submits to the applicable building department a completed penny application containing such
design or construction elements. In no event shall the Increments LEED Cost payable by the
County and the City exceed $3,500,000 (not to exceed $1,750,000 om the County and not to
exceed $1,750,000 from the City) and any amount above $3,500,000 n cessary to achieve LEED
silver status certification shall be the responsibility of the Stadium Dev Loper. Any incremental
32
amounts paid by the City above the amounts required to construct the Parking Facilities in
compliance with the City Parking Agreement, expended at the request of the Stadium Developer
to achieve LEED silver status certification for the Baseball Stadium Project under this Section
4.5, shall count towards the City's LEED contribution obligation under this Section 4.5,
including the City's 50% share of amounts not to exceed $3,500,000. The County shall be
responsible for the incremental costs directly associated with compliance with the Sustainable
Building Program, excluding costs related to achievement of silver LEED status which shall be
allocated as set forth above,
ARTICLE V
100
5.1 Construction% Administration. The Stadium Developer shall be responsible for
managing, directing, supeiyising, coordinating and controlling the planning, design and
construction of the Baseball,\ Stadium and the Public Infrastructure in accordance with, as
applicable, the Construction\Documents, the Construction Schedule, the Master Project
Schedule, the Stadium Project B Iget and the Public Infrastructure Budget. Except as otherwise
specifically provided in this Agr ement, the Stadium Developer shall be responsible for taking
all reasonable action for the orrly perfonnance of all aspects of the Work required in
connection with the construction of) e Baseball Stadium, including:
(a) retaining the se ices of the Architect, compliance with the requirements
of the Architect Contract, and coordm ing the design of the Baseball Stadium and the Public
Infrastructure;
(b) retaining, as nccessar�, the services of specialty consultants;
(c) retaining the services of the Construction Manager pursuant to
Sections 3.8 and 5.2, as the case may be, who hall cause the Baseball Stadium and the Public
Infrastructure to be constructed in accordanceth the Construction Schedule and the Master
Project Schedule, the Construction Documents, an the Construction Management Contract;
(d) preparing and updating, or c using to be prepared and updated, the
Construction Schedule, the Master Project Schedule an the Draw Down Schedule in accordance
with Section 5.7, and delivering copies to the Project oordination Team in accordance with
Section 5.7;
(e) retaining and supervising the persoel reasonably required by the
Stadium Developer in order to properly perform or cause to be erformed the Work;
(f) maintaining, or causing to be maintained,complete and accurate books
and records, consistent with industry standards, regarding the de ign and construction of the
Baseball Stadium Project and the Public Infrastructure, including t e Design Documents, shop
drawings, Change Orders, as -built drawings, applications for pa ent, permits, insurance
policies, bills, vouchers, receipts, lien waivers, customary periodic reports, inspector daily
reports, estimates, correspondence and bid calculation sheets;
33
(g) taking all action reasonably required to comply with all Applicable Laws
and taking all reasonable action required to cause the Architect and the Construction Manager
and all other agents and contractors engaged by the Stadium Developer and Team Affiliates to
design and construct the Baseball Stadium and the Public Infrastructure in accordance with
Applicable Laws and the provisions of the Architect Contract and Construction Management
Contract;
(h) `. furnishing promptly to the Project Coordination Team and the
Government Represefitatives all documents and infonnation required to be provided to them
pursuant to this Agreement and all other information relating to the Baseball Stadium Project and
the Public Infrastructure',they may reasonably request;
(i) notifying promptly the Government Representatives of any suit,
proceeding or action that\ is initiated or threatened in writing against a Team Affiliate in
connection with the Baseball\ Stadium Project or the Public Infrastructure;
(j) providi4 the County and City Representatives, upon Final Completion,
with an "as -built' set of the 6struction Documents in a format acceptable to the County and
City revised to show the "astibuilt" condition of the Baseball Stadium and the Public
Infrastructure and other changes rn de during construction;
(k) managing pun6h list and warranty work after Substantial Completion;
(1) establishing and updating, as necessary and in accordance with the
requirements of this Agreement, the sche ule of dates for delivery of various Design Documents
for review by the County and City Represe tatives;
(nn) preparing or causing be prepared minutes for all scheduled project
meetings and providing the County and Ci y Representatives with copies of any minutes
prepared by the Stadium Developer, or by itscontractors that are received by the Stadium
Developer, with respect to all project mectin for the Baseball Stadium or the Public
Infrastructure, as the case may be;
(n) causing the completion of t e Baseball Stadium and the Public
Infrastructure in accordance with the Design Documents the Construction Schedule, the Master
Project Schedule and within the Stadium Project Budget aA the Public Infrastructure Budget;
(o) subject to the obligations of the G vernment Parties with respect to
permits under this Agreement, obtaining or causing to be o tained all permits necessary for
construction of the Baseball Stadium Project and the Public Infra tructure;
(p) providing to the County and City Repres ntatives with copies of all
contracts and amendments thereto for informational purposes onl (other than contracts and
amendments thereto which shall be subject to approval by the Co ty and City as provided
herein and the other Stadium Agreements) relating to the Baseball Sta 'um Project or the Public
Infrastructure;
34
(q) maintaining, or causing to be maintained, the Baseball Stadium and Public
Infrastructure construction sites in safe condition and properly secured against unpermitted
access from an%Adcmcnt
r the Commencement of Construction as set forth in Section 3.7(b);
providing the Government Representatives the monthly progress reports
required by thiand the Construction Management Contract;
(s)upervising and coordinating, or using reasonable efforts to cause the
Construction Manager t supervise and coordinate, the construction of the Baseball Stadium and
the Public InfrastructurNnIi
ncluding the scheduling of all construction work on the Baseball
Stadium and the Public structure, so that the Baseball Stadium and the Public Infrastructure
are constructed, equipped, relished and completed in a good and workmanlike manner, in
accordance with the Master Pr 'eet Schedule and otherwise in accordance with this Agreement;
(t) furnishing Voraptly to the County and the City copies of any and all
written claims received by any am Affiliates affecting the Baseball Stadium, the Baseball
Stadium Site, the Public Infrastructu e, or the Public Infrastructure Sites, as the case may be; and
(u) causing the C stniction Manager to coordinate work and grant
appropriate access to the site for contract rs appropriately performing work.
Neither the Stadium Developer- nor any of er Team Affiliate shall be paid a developer fee or
compensated for its services as the dev loper of the Baseball Stadium or the Public
Infrastntcture, as the case may be. Notwithst\othc
nything to the contrary herein, the Parties
acknowledge and agree that the Stadium D's obligations hereunder are to manage,
administer, and implement the development,nd construction of the Baseball Stadium
Project and the Public Infrastructure on behe Parties. Notwithstanding any term or
condition in this Agreement to the contrartent of the parties is that the Stadium
Developer shall not perform any services (ant act) as a contractor within the meaning
of Chapter 489, Florida Statutes, and that as vices shall be performed by licensed
contractors (as so defined under Chapter 489, tat tes).
5.2 Construction Manager.
(a) The Stadium Developer has competitiv1y selected Hunt/Moss, a joint
venture, as Construction Manager to oversee construction of the aseball Stadium. The Stadium
Developer and the Team Affiliates represent and warrant that, to le knowledge, they did not,
at any time prior to the execution of this Agreement, and shall not, any time subsequent to its
execution, confer any unfair competitive advantage to any contractor 'th respect to the Baseball
Stadium Project in violation of Applicable Law. The Construction anager shall select and
engage such other service providers in connection with the Work as the adium Developer and
Construction Manager may deem necessary.
(b) The Stadium Developer shall enter into a ConstructNn Management
Contract with Hunt/Moss, a Joint Venture, to oversee the construction of the Ba eball Stadium,
and, subject to terms and conditions that must be expressly approved by the Count nd the City,
to oversee the construction of the Public Infrastructure. The Construction ManagemeXt Contract
shall be consistent with the terms of this Agreement and shall at all times co tain the
35
requirements s forth below and in Exhibit O attached hereto. The Stadium Developer shall
submit to the Co my and the City, for their review and approval, the Construction Management
Contract at least n (10) days prior to its execution. With respect to the provisions of the
Construction Mana anent Contract relating solely to the construction of the Baseball Stadium,
the County's and Cl y's approval shall be limited to the reasonable determination that the
Construction Managen ent Contract complies with the express requirements set forth in thus
Agreement, and such a proval (or responsive comments) shall be provided within seven (7)
days, The Government rties' approval of the Construction Management Contract shall not be
deemed a waiver of any hts of the Government Parties contained in this Agreement. The
Construction Management ontract shall include provisions in compliance with Applicable
Laws, including the County Community Small Business Enterprise programs (CSBE and
SBE), Community Workforce programs ("CWP") and responsible wages and benefits and
requisite bonding from the Sta ium Developer and the Construction Manager as provided in
Sections 3.8(f), 3.8(g), 5.2(d), an 5,2(e), the insurance requirements set forth in Sections 8,1 and
8.2, and provisions under which th Construction Management Contract may be assigned to the
County in accordance with this Agre ment. The CSBE and SBE goals for the Baseball Stadium
Project and the Public Infrastructur Work will be established for each construction trade
package. The Review Committee will ecommend such CSBE and SBE goals in consultation
with the Small Business Department, th Stadium Developer and the Construction Manager.
The County Manager shall establish t e CSBE and SBE goals upon receipt of the
recommendations from the Review Couuni ee. The Stadium Developer shall use reasonable
diligent efforts to execute the Construction It anagement Contract within forty-five (45) days
following the effective date of the Stadium A cements. The Stadium Developer shall not
amend the above -referenced provisions or mater lly amend the substantive provisions of the
Construction Management Contract that affect the ounty or the City without the consent of the
County or the City (as applicable), which consen shall not be unreasonably conditioned,
withheld or delayed. The County's Small Busines Department ("SBD") has advised the
Stadium Developer that the Baseball Stadium Project sh 1 be subject to a CWP goal of 10%, in
accordance with County Code Section 2-1701 and ounty Administrative Order 3-37
(collectively, the "CWP Regulations"). The County's BD has recommended that the
Construction Manager utilize SBD's hiring clearinghouse recruit workers to fill needed
positions for skilled laborers on the Baseball Stadium Project. SBD has advised the Stadium
Developer that when the Construction Manager submits job hi i g requests through the SBD
clearinghouse, SBD (including the staff person covered in Section .14 hereof) will submit such
hiring requests through the clearinghouse, as well as through any available Workforce
Development Organizations, Workforce Recruitment/Referral Organiz ions and other job hiring
databases (including the South Florida Workforce); and SBD will submit the hiring requests to
all designated target areas ("DTAs") in Miami -Dade County in addition to e DTA in which the
Baseball Stadium is located in order to fill such hiring needs as efficiently possible and with
as many qualified candidates from within the DTAs as possible.
(c) The Construction Management Contract shall require the onstruction
Manager to manage the construction of the Baseball Stadium "at -risk" and to Nprovide a
guaranteed maximum price ("GMP") for the direct and indirect construction cost of the
Baseball Stadium. The Construction Management Contract shall require that each subcon a�ctor
of the Construction Manager indemnify the Stadium Developer, the County and the City in file
36
ner and to the same extent that the Construction Manager indemnifies the Stadimn
the County and the City under the Construction Management Contract.
\ (d) Before the Construction Manager commences its services related to the
Baseball S�hint, the Construction Manager shall execute, deliver to the County and City (with
copies to the Sntadium Developer), and record in the public records of the County, the following
payment and \\ erfonance bonds: (i) prior to establishment of the GMP pursuant to the
Construction MI{iagement Contract, a payment and performance bond in an amount equal to the
value of all precbnstruction services to be provided by the Construction Manager under the
Construction Manalkernent Contract, (ii) to the extent that, prior to establishment of the GMP
pursuant to the Cons ction Management Contract, the Construction Manager enters into any
subcontracts or p" '.Ch e orders, a payment and performance bond from the applicable
subcontractor or supplier\in an amount equal to the total subcontract or purchase order amount,
and (iii) upon the establishM�11 ent of the GMP pursuant to the Construction Management Contract,
a payment and performance and in an amount equal to the total cost of construction of the
Baseball Stadium. Each payme t and performance bond shall be in compliance with the terms of
Section 255.05, Florida Statute specifically in compliance with the requirements of
Section 255.05(1)(a) and (c), 255.0 (3), and 255.05(6), shall name the County, the City and the
Stadium Developer beneficiaries t reof, as joint obligees. Each payment made to the
Construction Manager for its per ance of construction management services (Le.,
management fee, profit, office overhe , general conditions performed or provided by the
Construction Manager as part of its const ction management services and cost of work that is
self -performed by the Construction Manager shall be made by a dual party check (or other dual
party payment method) in the name of the Stadk�m Developer and the Construction Manager.
(e) Before the Construction Mia ager in its services related to the
Baseball Stadium, (i) the Stadium Developer shall e cute, deliver to the County (with a copy to
the City), and record in the public records of the Cou ty, a payment and performance bond for
the total cost of construction of the Baseball Stadi m in compliance with the terms of
Section 255.05, Florida Statutes, naming the County, the City and the Team Affiliate
beneficiaries thereof, as obligees; or (ii) in lieu of such bo , the Stadium Developer shall file
with the County an alternative form of security in the form of ash, irrevocable letter of credit, or
other security of the type listed in Section 255.05(7) or Part I of chapter 625, Florida Statutes
(the "CM Services Security'), in an amount equal to the tal cost of the construction
management services to be performed by the Construction Ma ager (i.e., management fee,
profit, office overhead, general conditions, and cost of work that is self -performed by the
Construction Manager if the payment and performance of such se -performed work is not
covered by the payment and performance bond provided by the Const ction Manager to the
County and the City as provided in Section 5.2(d)), as depicted in the initi Schedule of Values
divided by the total number of months that comprise the performance perio of the construction
management services, all in accordance with the provisions of Section 5.05(7), Florida
Statutes. The amount of the CM Services Security shall be adjusted in accor nee with such
formula as the total cost of the construction management services and perfonnae period are
adjusted by Change Order. By way of example, if the aggregate cost of the�Vstruction
management services equals $35,000,000 and such services are required for a pend of 35
months, the amount of the required CM Services Security would be equal to $1,000,0The
.
amount of the credit facility or other financial arrangement required to be maintained b�the
37
Stadium Develp er under Section 6.5 shall be reduced by an arnount equal to the CM Services
Security and any uses thereof. The Stadium Developer shall be permitted to use the CM
Services Security o make its final payment to the Construction Manager for the Baseball
Stadium Work. Inie event the CM Services Security is used to cover the cost associated with
the construction management services as contemplated herein, the Stadium Developer shall
replenish the CM Seryccs Security in an amount equal to such draws such that the CM Services
Security at all times is equal to the amount required by this section.
5.3 Chane O ders. Change Orders by the Stadium Developer relating to the
Baseball Stadium Work sh 11 not require advance notice or approval by the Government Parties
provided that: (a) the Chan e Order does not delay or further delay the Substantial Completion
date beyond the Targeted C mpletion Date; (b) either the cost of the Change Order does not
cause the projected total. Stadi, in Project Costs to exceed or further exceed the Stadium Project
Budget attached hereto as Exhi it H (as the same may be amended from time to time to reflect
approved increases) or the St ilium Developer shall have made arrangements reasonably
satisfactory to the County and the ity for the funding by the Stadium Developer of any increase
in the Stadium Project Costs result' g from such Change Orders; (c) the Change Order does not
pose a material risk to public saf y; (d) the Change Order does not eliminate a materially
important programmatic element fro the Project Program Statement, or materially alter the
design intent for the exterior of the seball Stadium; (e) the Change Order does not cause a
Govenin critally Caused Overrun unless the Stadium Developer and the Team waive, in writing,
any claims they may have against the Co mrr
y and the City for Governmentally Caused'Oveuns
resulting from such Change Order; (f) the ost of the Change Order does not cause the projected
total Public Infrastructure Costs to exceed o further exceed the Public Infrastructure Budget (as
the same may be amended from time to e to reflect approved increases), including any
increased costs caused by delays in complete g the Public Infrastructure; and (g) the Change
Order is not likely to increase the cost of the Pa ting Facilities or delay substantial completion of
the Parking facilities beyond the date anticipate for such substantial completion as set forth in
the Master Project Schedule. In addition, the Stadium Developer shall make any Change Orders
that are required to comply with the final pe itted set of Construction Documents and
Applicable Law. Any Change Order that is not pe issible as provided in clauses (a) through
(g) above shall be subject to the written approval oft County and City Representatives, which
approval shall not be unreasonably withheld or conditioned, The County and City
Representatives shall review any such Change Order wit in ten (10) Business Days from receipt
of written notice of the Change Order. Failure by the County and City Representatives to
respond within such ten (10) Business Days shall be de ned an approval. In the event the
County or City Representative rejects the proposed Chan e Order, such representative shall
provide to the Stadium Developer within said ten (10) Busin s Day period, detailed comments
outlining the reason why such Government Representative rej e ted the proposed Change Order.
Any dispute under this Section 5.3 shall be resolved by Expe iced ADR under Section 14.2.
Until such time as the Govenunent Representatives approve the hange Order or the dispute is
resolved by Expedited ADR, the Stadium Developer shall have e right to proceed with the
Baseball Stadium Work and other changes set forth in the proposad hange Order so long as the
Stadium Developer shall be responsible for funding any Stadium C st Overrun resulting from
such Change Orders pending the final determination of responsibili for such Stadium Cost
Overruns. The Stadium Developer shall be pennitted to issue Change ders that it believes are
the result of Governmentally Caused Overruns without the approval of e Government Parties
38
or their representtives, provided that the issuance of such Change Order shall not affect the
ultimate determina on as to whether such cost was a Governmentally Caused Overrun, Within
thirty (30) days fo� owing the effective date of this Agreement, the Parties shall develop a
Change Order plana ment process that will outline the role of the Parties in processing and
approving Change Ord -s in accordance with the terms of this Agreement.
5.4 Protect CMrdination Team. The Parties have formed an administrative
committee that includes re esentation from the County, including a representative appointed by
the Chairperson of the Boat the City and the Stadium Developer (the "Project Coordination
Team") to perforin the follo _the
functions: (a) receive an updated Construction Schedule and
Draw Down Schedule pursu \nn
tion 5.7; (b) receive reports pertaining to the Stadium
Project Budget and any other af the Baseball Stadium Project; (c) receive other reports
and information from the Desigsionals and the Construction Manager as provided in this
Agreement; (d) maintain clear liommunication to facilitate a successful Baseball Stadium
Project; and (e) receive and revange Orders. The Project Coordination Team shall have
periodic (at least monthly) regutings and special meetings upon reasonable prior notice
from any member of the Projeination Team during the construction of the Baseball
Stadium. Notwithstanding anyte' i to the contrary, all conmlunications and approvals by
the Government Representativeg t the Baseball Stadium Project shall be made through
Stadium Developer.
5.5 Right to inspect and Receive I \ ormation. The County and City Representatives
shall be given an opportunity to inspect the c nstruction Work. and materials and to review
construction documents as reasonably necessary to verify that the Work and materials are in
general conformance with the Project Program atement and the Design Documents, The
County and City Representatives shall receive in riting from the Stadium Developer on a
regular basis, and within the time frames expressly s forth elsewhere in this Agreement or no
less than monthly, information regarding the progress f the Baseball Stadium Project and the
Public Infrastructure through each design phase and the c nstruction of the Baseball Stadium and
the Public Infrastructure. During construction, the County nd City Representatives shall receive
advance notice of and have the right to attend all schedul Baseball Stadium Project and the
Public Infrastructure meetings, and the right to inspect the Baseball Stadium and the Public
Infrastructure at all reasonable times, subject to reasonable re , rictions imposed by the Stadium
Developer or Construction Manager, The Stadium Develop shall make itself reasonably
available to the County and City Representatives throughout the duration of the Baseball
Stadium Project and the Public Infrastructure Work in order t keep the County and City
Representatives reasonably informed throughout the duration of t e Baseball Stadium Project
and the Public Infrastructure Work, Any rights that the County an City Representatives have
under this Section shall not be the basis for any liability to accrue to th County or City from the
Stadium Developer, the Team, or third parties for such monitoring or 'nvestigation or for the
failure to have conducted such monitoring or investigation.
5,6 Stadium Project Budget. The initial Stadium Project BudgeO attached hereto as
Exhibit H. The Stadium Developer shall update the initial Stadium Project B dget from time to
time to reflect the current cost of Work and any Change Orders implemented i accordance with
Section 5.3 of this Agreement and shall provide copies thereof to th Government
Representatives (the then current budget is referred to herein as the "Stadium Pr 'ect Budget").
39
The Stadium Developeshall provide the Government Representatives with monthly progress
reports, in a form yeas ably acceptable to the Government Representatives, relating to the
Stadium Project Costs,ncluding all expenditures by the Stadium Developer during the
preceding month. \
5.7
(a) The Par 'es have attached a Preliminary Milestones Schedule for the
Baseball Stadium, Public Infra tructure and Parking Facilities as Exhibit N. The Parties shall
jointly agree on a Master Proje t Schedule no later than June 1, 2009. The Parties shall act
reasonably in reaching agreem it on the Master Project Schedule and shall give due
consideration to the recommendatioQns of the Construction Manager, The Stadium Developer
shall update the Master Project S1edule monthly to reflect changes to the milestone dates
reflected in the respective constructs schedules relating to the Work. Copies of the monthly
updates shall be provided to the GovMont Representatives for their review. The Stadium
Developer shall provide notice to the verrrnment Representatives of any amendments to any
material milestone date contained in the aster Project Schedule and shall obtain the consent of
the Govenunent Representatives to any amendment that would foreseeably result in a
Governmentally Caused Overrun or a Pu lic Infrastructure Cost Overrun (including any
amendments to milestone dates, float times, ctivity durations and connectivity logic). The
Stadium Developer shall provide any such proposed amendment to the Government
Representatives and the Government Representa 'ves shall provide their respective responses
within ten (10) Business Days following receipt o the proposed amendment. Failure by the
Govenument Representatives to respond within such an (10) Business Days shall be deemed an
approval. In the event a Govermnent Representativ does not approve the amendment, such
Government Representative shall provide to the Stadium eveloper within said ten (10) Business
Day period, detailed comments outlining the reason why uch Governmment Representative does
not approve the proposed amendment. In the event the pr osed amendment is not approved or
deemed approved by the Government Representatives, t Stadium Developer shall either
continue the process until such time as the Government R .prosentatives have approved the
amendment or submit the dispute to Expedited ADR pursuant o Section 14.2. Such Expedited
ADR may not expand or otherwise modify the express delegat ns of authority granted to the
Goverrunent Representatives under this Agreement. Other than or extensions resulting from
Force Majeure, neither the Targeted Completion Date nor the date t forth in the Master Project
Schedule for Substantial Completion of the Public Infrastructure sh 11 be extended without the
prior written approval of the Government Representatives.
(b) The Stadium Developer shall provide to the Govd ent Representatives
the Constriction Schedule for the Work issued by the Construction Man or and all updates to
such construction schedules. The Construction Schedule shall set forth e construction start
dates and time parameters required to meet the Targeted Completion Da e,the date set for
Substantial Completion of the Work and all other major milestone dates set rth in the Master
Project Schedule. The Construction Schedule shall utilize the Primav e
nnat or another
format commonly used in the construction industry for large conunercial const ction projects.
The Stadium Developer shall cause the Construction Manager to update th Construction
Schedule monthly. The Stadium Developer has informed the City that the Construction
Schedule initially calls for construction work to occur on-site from 7ain — 7pm (or am — 6pm)
40
on weekdays, with work on weekends as necessary from time to time, and with work to begin
earlier in the day during the concrete pouring phase of construction. The City shall use
reasonable good fast 1 efforts to accommodate the on-site work hours required for the
Construction Manager rid its subcontractors in order to meet the deadlines in the Construction
Schedule, respectively.
(c) The nitiai draw down schedule setting forth the monthly payments
estimated to be necessary for the timely completion of the Baseball Stadium is attached hereto as
Exhibit I. The Stadium De eloper shall provide to the Project Coordination Team monthly
updates to the draw down sch dule (as so updated, the "Draw Down Schedule"). The monthly
updates to the Draw Down Se edule shall reflect actual payments made and shall reasonably
reflect anticipated funding requir vents as predicted by the most recently updated Master Project
Schedule and/or Construction Sch ule.
(d) The Stadium eveloper shall use reasonable best efforts to achieve
Substantial Completion prior to the Targeted Completion Date (in the case of the Baseball
Stadium) and the date set forth in the -aster Project Schedule for Substantial Completion of the
Public Infrastructure (in the case of th Public Infrastructure), subject to extensions resulting
from Force Majeure.
5.8 Procurement of ConstructioiN Materials, Exhibit J sets forth the terms under
which the County will purchase construction aterials and equipment for the Baseball Stadium
and the Public Infrastructure on a sales tax ex pt basis pursuant to State law. The County's
obligation to implement a sales tax exempt procu \Ha
t program in accordance with the terms of
Exhibit J shall be subject to the Stadium Develop eceipt of a favorable opinion provided by
the State of Florida Department of Revenue indig that purchases in accordance with such
Procurement program will be exempt from sax. Except as otherwise set forth in
Section 5.11, if a favorable opinion is not issuCounty shall fund the increase to the
Stadium Project Budget attached hereto as Exhilely attributed to sales taxes paid for
constriction materials and equipment for the BasSta ium that were expected to be exempt
from tax under the materials procurement prograan a ount not to exceed $4,400,000. To
the extent a favorable opinion is issued, then, upoeipt o such opinion, the County shall not
be liable to fund any amounts relating to the eed sale tax savings under the materials
procurement program. The Construction ManageContract hall accommodate the program
for the County's purchase of construction materiaet forth in xhibit J.
5.9 Punch List, The Architect and the Stadium Develop Nr
in consultation with the
Govenunent Representatives, shall cause to be prepared a punch list o 'tems to be completed by
the Construction Manager after Substantial Completion so that the ork will be in general
conformity with the Construction Documents. The Stadium Develo er shall provide the
Goverimient Representatives with a copy of the punch list for review and in rmationaI purposes
only. The Stadium Developer shall use reasonable efforts to cause the Cons ction Manager to
complete the punch list items as soon as reasonably practicable in ace dance with the
Construction Management Contract. All work shall be performed by the Constr ction Manager
in a good and workmanlike manner in conformity with the Construction Docum is so that on
the Final Completion date the Baseball Stadium and the Public Infrastructure re in good
working order and condition and ready for immediate use.
41
5.10 Warranties. To the extent practicable, all Construction Manager, relevant
subcontractor, supplier and manufacturer warranties with respect to the Baseball Stadium shall
name the Stadium Developer, the Stadium Operator and the County as intended beneficiaries of
the warranties. To the extent practicable, all Construction Manager, relevant subcontractor,
supplier and manufacturer warranties with respect to the Public Infrastructure shall name the
County or City, a tie case may be, as intended beneficiaries of the warranties. The Stadium
Developer shall ri�t 1 wingly tape any action negating the Construction Manager's, and any
subcontractors', s4 li? ' and manufacturers' warranties, except for emergencies, matters of
public safety and, kith th prior consent of the County Representative and City Representative,
as applicable (which shall n t be unreasonably withheld, denied or delayed), in connection with
the settlement of warranty cla' ns.
5.11 Ownershiv for In ome Tax Purposes. The Baseball Stadium and land comprising
the Baseball Stadium Site (other than easements) shall be owned solely by the County and no
other Person shall have any own rship interest therein. Except for any equipment, fixtures,
furniture or other personal proper v that remain the property of the Operator or the Team
pursuant to the Operating Agreemen all improvements, materials and equipments provided by
the Stadium Developer, or on its beha , that become a part of the Baseball Stadium shall, upon
being added thereto or incorporated th cin, be and become the property of the County. Team
Depreciable Assets shall be owned for income tax purposes by the Person who paid for or
provided said assets. Such Person shall etain the sole beneficial and depreciable interest for
income tax purposes (to the extent of its in estment) in all such items. Neither the County, the
City nor any other Person shall have the ri 1t to take depreciation deductions with respect to
such items, or claim any other right to into e tax benefits arising from Team Depreciable
Assets. For purposes of identifying the items su 'ect to such interest of the Team Affiliates, the
Team Affiliates may cause a nationally recogni d accounting, appraisal or valuation firth to
prepare a schedule (which shall be final and bi ing on the Parties absent manifest error)
allocating their investment among such items as it shall elect. In the event that the Florida
Department of Revenue does not issue a favorable o inion regarding the sales tax exemption
program described in Section 5.8, and such opinion is b sed solely on the Team Affiliate's right
to claim ownership of Team Depreciable Assets as set forth in this Agreement or the other
Stadium Agreements, the County shall not be required fund the increase to the Stadium
Project Budget solely attributed to sales taxes paid for const etion materials and equipment for
the Baseball Stadium that were expected to be exempt from t under the materials procurement
program as more fully set forth in Section 5.8. In no event s all items funded by the County
using bond proceeds be allocated or reallocated pursuant to reposed Treasury Regulations
51.141-6 to the Stadium Developer, other Team Affiliate or any P -son other than the County.
5.12 Liens. The Stadium Developer shall use commerciall reasonable efforts to cause
the Baseball Stadium and the Public Infrastructure to be construe eq in accordance with the
Construction Documents free and clear of any and all Liens arising from the Work that encumber
the property comprising the Baseball Stadium Site or the property omprising the Public
Infrastructure. In the event any such Lien is filed by the Architect, Constru tion Manager, or any
subcontractors or suppliers, the Stadium Developer shall cause said Lien o be discharged or
transferred to appropriate bond within thirty (30) days of recording. If the tadium Developer
does not discharge or transfer to appropriate bond any such Lien within th , y (30) days of
recording, the County shall have the right, but not the obligation, to cause the Lie to be released
42
by any means the County reasonably deems proper, including payment of the Lien from Stadium
Project Funds. The Stadium Developer shall have the right to contest any such Lien in good
faith.
5.13 tart ih Public Places, The Baseball Stadium Project shall be subject to the Art in
Public Places piiovisiis set forth pursuant to Section 2.11. 15 of the Miami -Dade County Code
(the "Code"), and pur cant to the Dade County Guide to Art in Public Places (the "Guide")
which provisions of the ode and Guide are incorporated herein by reference. The 1.5% of all
capital costs (as defined the Code) of the Stadium Project shall be conveyed to Miami -Dade
County Ail in Public Place for the implementation of the Art in Public Places program and the
contract(s) with the artists) for the Baseball Stadium Project shall be between the artist(s) and
the Art in Public Places Trus in accordance with the Code and Guide. Art in Public Places will
work collaboratively with the tadium Developer and the Team on the implementation of Art in
Public Places program pursuant o the requirements of the Code and pursuant to the Guide.
5.14 Small Business Pr&ram Monitoring. In order to provide sufficient monitoring
and assistance with the fulfillmentthe CBE-A/E, Community Workforce, Responsible Wages
and CSBE programs applicable to th Baseball Stadium Project, the County shall assign one full-
time staff person to work under the,,
heNirectio�a of the County Small Business Department to
monitor and assist the Stadium Develo er in its compliance with such County programs. The
Stadium Developer, the County, and M 'or League Baseball each have agreed to contribute
$107,333.00 to fund the total cost of this dedicated staff person for the term of the Baseball
Stadium construction period. The Stadiumveloper will guarantee payment of MLB's portion
of the funding commitment in this Section 5.1
ARTICU VI
ING
6.1 Sources of Funds. The sources of fundsthe Baseball Stadium Project and the
Public Infrastructure are depicted in Exhibit K.
6.2 County Funding. The County shall issue and ell (a) one or more series of taxable
or tax-exempt revenue bonds secured by legally available co vention development tax receipts,
legally available professional sports tax receipts and legally vailable tourist development tax
receipts and (b) a series of general obligation bonds in the, aunt of $50,000,000 from the
Building Better Communities General Obligation Bond Progr (collectively, the "County
Bonds") in an aggregate amount sufficient (taking into account issT, nce costs, required reserves
and capitalized interest cost during construction) to deposit before r when such funds are due
under the Draw Down Schedule and make available to pay St diurn Project Costs: (x)
$347,500,000 of net proceeds into the County Account and (y) $35,00 000\the
fnet proceeds into
the County Account, which is being deposited in consideration of, ther things, the
Team's annual payment to the County pursuant to Section 7 of the Notion Agreement.
The County, in its sole discretion, shall determine the details of thee of the County
Bonds, including the use of capitalized interest. If by July 1, 2009, the revenue sources
identified in (a) and (b) above will not be sufficient or available to permunty to issue the
County Bonds in the amounts necessary to meet its funding obligations in (x) above, the
43
Board, at a publicly noticed meeting, shall consider (i) proceeding with the issuance of the
County Bonds and/or other bonds utilizing the same funding sources by issuing debt in future
tranches or one or more additional funding sources in an amount necessary to meet its funding
obligations set forth in (x) above; or (ii) terminating this Agreement in accordance with Section
11.1.1. If the County has not terminated this Agreement on or before July 1, 2009 pursuant to
Section 11.1.1, the County hereby covenants to fund the amounts set forth in (x) and (y) above
from (i) the sources identified in (a) and (b) above or (ii) any other legally available Non Ad
Valorem Revenues subject to the last two paragraphs of this Section 6.2 (clause (ii) being
referred to herein'as he "Non-Ad Valorem Funding Obligation"). The County may, at its
option, use any ot} er fu ding sources available to it to satisfy its obligations under this Section
6.2.
The County':shall deli sit the proceeds from the County Bonds or other funds described
above into the County AccoN s in accordance with the Draw Down Schedule, except that the
$35,000,000 amount referred to 'n clause (y) above shall not be required to be deposited in the
County Account until the latero (i) three (3) months prior to the Stadium Developer's initial
deposit of the amounts specified i Section 6.4(c), and (ii) twelve (12) months prior to the
projected Substantial Completion d te, and so long as in the interim the County advances, by
deposit into the County Account, suc 1 amounts as are required to make timely disbursements
from the County Account in accordan e with the Draw Dowd Schedule. The County Bonds will
not be issued in whole or in part under arts II, III or V of Chapter 159 of the Florida Statutes.
If, pursuant to Section 8.3(c), the Count funds a portion of the deductible costs or amounts
exceeding any applicable sub -limit under e Builder's Risk Insurance Policy and such costs or
amounts are not reimbursed by a Governm t Relief Grant, then the Stadium Developer shall,
within 90 clays, contribute such amount, sub ct to the provisions of Sections 8.3 (b) and (d), to
the County Account on behalf of the County, uch contributions will relieve the County of its
obligations under this Section 6.2 up to the am nt contributed by the Stadium Developer.
The County agrees, to the extent permitte y and in accordance with applicable law and
budgetary processes, to budget and appropriate in it annual budget for the applicable fiscal year,
by amendment if necessary, Non -Ad Valorem Reven es in an amount sufficient to satisfy the
Non -Ad Valorem Funding Obligation and any other fu ding or payment obligations under this
Agreement due during such fiscal year. Such agreemen on the part of the County to budget and
appropriate Non -Ad Valorem Revenues shall be cumulati e, and shall continue until such Non -
Ad Valorem Revenues in amounts sufficient to satisfy the on -Ad Valorem Funding Obligation
shall have been budgeted, appropriated and actually funded. otwithstanding the foregoing, the
County does not agree to (i) maintain any services or program now provided or maintained by
the County that generate Non -Ad Valorem Revenues or (ii) lev and collect any particular Non -
Ad Valorem Revenues.
Nothing contained herein shall be deemed to create a pledg�of or lien, legal or equitable,
on the Non -Ad Valorem Revenues, nor shall it preclude the Cuoy from pledging any of its
Non -Ad Valorem Revenues or other revenues to other obligations, n r shall it give any party to
this Agreement or any other party a claim on the Non -Ad Valorem R venues. The County may
not expend moneys not appropriated or in excess of its current b dgeted revenues. The
obligation of the County to budget, appropriate and fund the Non d Valorem. Funding
Obligation from Non -Ad Valorem Revenues is subject to the availabilit of NTon-Ad Valorem
44
Revenues after satisfying funding requirements for obligations having an express lien on or
pledge of such revenues and after satisfying funding requirements for essential governmental
services of the County.
6.3 City Funding. The City shall issue and sell one or more series of taxable or tax-
exempt revenue bonds backed by the convention development tax ("City Bonds"), and shall
remit such other funds, in an aggregate amount sufficient (taking into account issuance costs,
required reserve'S�nd capitalized interest during construction) to deposit $13,500,000 of net
proceeds into the' Ci y Account. The City, in its sole discretion, shall determine the details of the
issuance of the City nds, including the use of capitalized interest. The City shall make the
deposit described in thi Section 6.3 prior to July 1, 2009; so long as in the interim the City
advances by deposit into the City Account such amounts as are required to make timely
disbursements from the Cit Account in accordance with the Draw Down Schedule. The City
Bonds will not be issued in A ole or in part under Parts II, 111 or V of Chapter 159 of the Florida
Statutes. \\
6.4 Stadium Develo \ r Funding. The Stadium Developer and/or other Team
Affiliates have funded and shall fi d $155,000,000 of the Stadium Project Budget and the Public
Infrastructure Costs by (a) directs paying (i) Stadium Developer Soft Costs that are included
within the Stadium Project Budget nd related to the Baseball Stadium and (ii) $1,000,000 of
Public hnfrastructure Costs as provid d for in Section 3.8(a); (b) a deposit of $35,000,000 into
the County Account as provided in Sed tion 6.2(y); and (c) following the complete funding and
exhaustion of the City Account and e County Account, including the funds set forth in
Section 6.2(y), depositing the balance of e $155,000,000 amount as and when needed, less any
earrings projected to be realized from th investment of the fields in the Stadium Developer
Account, and less any future projected tadium Developer Soft Costs, into the Stadium
Developer Account; provided that such fun s may be maintained in a third party account if
required by the terms of a Team Affiliates' n ancing. Any balance in the Stadium Developer
Account (less any amount needed to be rese ed for completion of any identified punch list
items, and other than from earnings on the in estment of monies deposited in the Stadium
Developer Account and any funding by the Teal Affiliates in excess of $155,000,000, which
amounts shall be returned to the Team Affiliates) t at remains after the later of (1) the date of
Final Completion of the Baseball Stadium and (2) th date all outstanding claims relating to the
Baseball Stadium Work have been paid, shall be trans erred to the Capital Reserve Fund. The
Stadium Developer shall include the payments made under this Section 6.4 in the periodic
expense reports furnished under Article V, and shall provide the Government Representatives
with evidence of those payments upon reasonable request. he County and City shall cooperate
with the Team Affiliates in their efforts to obtain financin including, if requested by a Team
Affiliate, by allowing the Team Affiliates to obtain any suc financing through an industrial
development agency or other governmental body provided that uch financing is non-recourse to
the County and City.
6.5 Cost Overruns.
6.5.1 Stadium Cost Overruns. The Stadium Developer shat fund and bear the cost of
all Stadium Cost Overruns other than Governmentally Caused O erruns. "Stadium Cost
Overrun" means all Stadium Project Costs (including, without limit tion, all such costs of
45
planning, designing, constructing, and equipping the Baseball Stadium and all related indemnity
and damage obligations to, and amounts due and owing to, contractors, subcontractors, suppliers,
architects, engineers and other vendors) in excess of the total amount provided for in the initial
Stadium Project Budget attached hereto as Exhibit H. "Goverrunentally Caused Overrun" means
a Stadium Cost Overrun that delays or further delays the Substantial Completion date beyond the
Targeted Completion Date or causes the actual total Stadium Project Costs to exceed or further
exceed the Stadium Project Budget and results from: (i) any breach by the County or City, as the
case may ne, or, or ranure or a representation mace in, tris Agreement or one of the other
Stadium Agred�rignts; (ii) any change in Applicable Law enacted by the County or City after the
'n nt, other than a change of general application mandated by State or federal
date of this 4
law; (iii) changes incl e design or construction of the Baseball Stadium imposed by the County
or City pursuant to Se 15.21 other than changes necessary to bring the Baseball Stadium
into compliance with ge�ion
ally applicable building, fire or other municipal codes; (iv) arising or
resulting from the workformed on the Other Development, the Public Infrastructure (unless
associated with environment 1 contamination within the Baseball Stadium Site or performed by a
private utility company unde Section 3.6(f)), the Parking Facilities, the City's obligations under
Section 4.01 of the BSA or icle III of this Agreement, or any other work to be conducted by
the County or the City under t is Agreement (except for the County's purchase of materials in
accordance with Exhibit J); (v) t e City's remediation of environmental conditions as provided
in Section 4.01(a)(iv) of the BSA d Section 3.2 of this Agreement, the Limited Phase II Report
and the demolition of the Orange owl and related debris removal pursuant to the BSA to the
extent either affects the Baseball St dium Site or the Public Infrastructure located within the
Entire Site; (vi) a delay caused by the\Deveer
of the County or the City, as the case may be., to
meet a deadline imposed on it in Secti— 3.7 or Sections 6.2, 6.3, and 6.7 (if applicable);
or (vii) relating to the portions of tht and road abandonment and utility relocation or
abandonment processes that are withinounty's or City's reasonable control in accordance
with the timetables set forth in Sectic), except to the extent any one of the foregoing
delays were caused by the Stadium per or another Team Affiliate or the Design
Professionals, the Construction Managth r contractors or consultants engaged by a Team
Affiliate, Public Infrastructure Dnd Scheduling Overruns shall not constitute
Govenunentally Caused Overruns. Thty an the City shall each fund and bear the cost of
Governmentally Caused Overruns to tht caus by it. If a Stadium Cost Overrun is both a
Governmentally Caused Overrun and a Stadium C t Overrun caused by a Team Affiliate,
including a concurrently caused delay, the applicable arties shall share in the funding of the
Stadium Cost Overrun in proportion to their relative con ibutions to the Stadium Cost Overrun.
Only delays that impact the critical path of the Ba eball Stadium are compensable as
Govermnentally Caused Overruns, provided, however, that y delays to the critical path of the
Baseball Stadium Project, or absorption of available float co tributing to the critical path delay
on the Baseball Stadium Project, caused by the Government P rties shall be equitably allocated
with any delays to the critical path of the Baseball Stadium Pr ect, or absorption of available
float contributing to the critical path delay on the Baseball St dium Project, caused by the
Stadium Developer. The Construction Management Contract shall equire that the Construction
Manager submit and implement a constriction recovery schedule 'n each instance where a
critical path deadline has been missed due to unexcused delay on th part of the Construction
Manager, The Parties represent that as of the effective date of this greement, none of the
Parties is aware of the existence of a Governmentally Caused Overrun, r of any event that is
46
reasonably likely to lead to a Governmentally Caused Overrun, or any delay to the milestone
dates in the Master Project Schedule, The Stadium Developer has provided the County and the
City with evidence that it has in place a dedicated bank line of credit or other similar financial
arrangement in. the amount of at least $20,000,000 that may be used only to pay its Stadium Cost
Overruns. Except to the extent actually applied to pay Stadium Cost Overruns, such credit
facility or a replacement credit facility or financial instrument shall be maintained in place until
the Substantial Completion date.
6.5.2 Public : ifrastructure Cost Overruns. Subject to the terms of Section 3.8, the
County and the City sha,keach fund and pay one-half of the cost of all Public Infrastructure Cost
Overruns except to the e ent a Public Infrastructure Cost Overrun was caused by the Stadium
Developer's negligent perf ance of its duties under this Agreement or by Public Infrastructure
Delay and Scheduling Ov�runs. "Public Infrastructure Cost Overrun" means all Public
Infrastructure Costs (includin , without limitation, all such costs of constructing, and equipping
the Public Infrastructure, cos due to Unforeseen Site Conditions with respect to the Public
Infrastructure site, and all relat d indemnity and damage obligations to, and amounts due and
owing to, contractors, subeontrac ors, suppliers and other vendors) in excess of the total amount
provided for in Public Infrastructu e Project Budget. Nothing herein shall preclude the County
or the City from pursuing reimbur ement from any Person legally responsible for the Public
Infrastructure Cost Overrun, inelu 'ng the Architect and the Construction Manager, as
applicable.
6.6 Stadium Developer to Kee Funding in Balance. The Stadium Developer shall
maintain a true, accurate, complete and up to -date record that reconciles each line item of the
Stadium Project Budget against (a) the total mount of the Stadium Project Costs for that line
item that are covered by contracts in force, r eluding adjustments due to amendments and/or
Change Orders; (b) the amount of Stadium
Pro Costs for that line item disbursed to date;
(c) the estimated amount of Stadium Project Cost for that line item necessary to be disbursed in
the future to complete (in accordance with the sign Documents) the design services, the
construction work, materials and other services cover d by that line item; (d) any reductions due
to sales tax savings achieved, if any; and (e) the varia e between the sum of items (b), (c) and
(d) for that line item versus the Stadium Project Binet for that line item. The Stadium
Developer shall be entitled to adjust the Stadium Proict Budget by reallocating amounts
between line items, subject to the Change Order apps val process, when applicable, in
Section 5.3. A copy of the record shall be furnished at least q arterly to the County and the City.
The Stadium Developer shall be permitted to apply value e ineering techniques to limit or
prevent Stadium Cost Overruns where in its judgment pra tical, subject to the Stadium
Developer's obtaining approval of Change Orders to the extent r uired under Section 5.3. The
funding of the Baseball Stadium shall be deemed to be "in bal Ice" at a particular time of
determination if the sum of the following equals or exceeds the am unt necessary to pay when
due the total of the estimated remaining amount of Stadium Project sts necessary to complete
the Baseball Stadium in accordance with the Design Documents, name y the sum of (i) the then
current balance (including any bank letters of credit or other security, w ich may include the CM
Services Security) in the Funding Accounts, plus (ii) the amount of the C unty funding and City
funding yet to be deposited into the Funding Accounts under Sections 6.2 and 6.3, plus (iii) the
projected investment earnings on the Stadium Developer Account, plus (i the amount of any
Team Affiliate funding referenced in Section 6.4 or otherwise arranged by a ,earn Affiliate and
47
contractually connnitted solely for the purpose of funding the Baseball Stadium, plus the
remaining amount the Team Affiliates are required to fund, less (v) any interest earnings in the
County Account and the City Account from the investment of any funds on deposit in the County
Account and the City Account, The amounts in clauses (iii) and (iv) above shall be determined
in good faith by the Stadium Developer based on reasonable assumptions; any dispute as to those
amounts shall be resolved by Expedited ADR under Section 14,2. If and whcnever the funding
of the Baseball Stadium is not in balance as provided in this Section, the Stadium Developer
shall report the details to the County and the City and, upon the written demand by the County or
the City, shall be obligated to bring the funding of the Baseball Stadium in balance within
three (3) months following the demand, except to the extent of any undisputed Governmentally
Caused Overruns.
6.7 Advancemel t of Funds. The Parties acknowledge that expenses have been
incurred and monies will be eq aired to fund Stadium Project Costs prior to the issuance of the
Bonds and other funding cont tinplated by Section 6.2 and 6.3. Accordingly, the County and the
City shall advance monies to imburse the Stadium Developer for expended Stadium Project
Costs (subject to Section 7.1(b)) and to fund future Stadium Project Costs at such times and in
such amounts as are provided in e Draw Down Schedule, provided that any increased costs in
an amended Draw Down Schedu e shall be reasonably necessary to complete the Baseball
Stadium Project in accordance wit 1 the Construction Schedule upon their receipt of, and in
accordance with the directions set 10
in, a properly completed and executed funding request in
the form of Exhibit L. Any such a vances shall be made by the County and the City in
proportion to and in accordance with th 'r contributions under Sections 6.2 and 6.3, and shall be
reimbursed to the applicable Government'
over anent arty from its Funding Account upon the deposit of its
Bond proceeds into such Funding Acco t. Advances under this Section 6.7 shall only be
payable from the pennitted sources identifi d in Sections 6.2 and 6.3. If the County or City,
respectively, has not issued the County Bond or City Bonds by the date on which payment for
construction related insurance and construction obilization costs are due, which date is shown
on the Draw Down Schedule, then the County City, respectively, shall advance to Stadium
Developer funds for such insurance and mobiliza 'on costs in accordance with this Section 6.7
and shall, when the County Bonds are issued, re' burse itself for such advances from the
proceeds of the County Bonds. Notwithstanding th foregoing, prior to July 1, 2009, no Party
shall be obligated to advance fiends not identified in the Schedule of Eligible Reimbursable
Expenses, and in no event any amounts in excess of its espeetive Reimbursable Interim Costs
Limitation.
6.8 Government Costs. Each of the County andity shall be responsible for paying
its Govenunent Costs directly, and not from the Funding ccounts. In no event shall the
County's or the City's contributions as set forth in Sections 6. and 6.3, or the amount of the
Bond proceeds or other funds required to be deposited into the F ding Accounts, be reduced to
pay for or as a result of any Government Costs. Notwithstandi the foregoing, each of the
County and the City shall have the right to pay Government Costs om any earned interest on
deposit in the County Account and the City Account, respectively.
6.9 Equipment Leasing. The County Representative shall ha e the right to review all
leases and related documents associated with the leasing of material quipment and system
components of the Baseball Stadium, or the lease term sheet(s) referred t below. The County
Representative shall have the right to approve any leasing of material equipment or system
components if such lease is for a line item in the Stadium Project Budget equal to or in excess of
$7,500,000, which approval shall not be unreasonably withheld, conditioned, or delayed.
Approval of the County Representative shall not be required with respect to any lease entered
into after Substy-itial Completion. Any request for approval shall be accompanied by a term
sheet for the propos`6 lease(s) containing all material business terms and economic terms of the
proposed lease. Appli vat shall be granted or denied within three (3) Business Days of the
written request for such`�proval. The failure of the County Representative to respond in writing
within three (3) Business \Days shall be deemed to be approval. In the event the Stadium
Developer and the County epresentative disagree, such disagreement shall be submitted for
Expedited ADR pursuant to ection 14.2. With respect to all such leases, upon the termination
of the Operating Agreement, ie County shall have the right, at its sole discretion, to assume
such leases and Stadium Develo er shall cause all such leases to be assignable to the County.
6.10 State Funding. Th County and the City shall use reasonable best efforts and
work cooperatively, including any -easonable assistance needed from the Team Affiliates, to
secure funding from the State in the rrn of a sales tax rebate or other available State funding to
defray Stadium Project Costs or costs r lated to the Baseball Stadium. Unless otherwise required
by the State, the amount of any such S to funding shall be deposited into the Capital Reserve
Fund.
TR
7.1 The Funding Accounts.
VII
(a) Each Party shall establish its o 1 Funding Account with a reputable bank
or other financial institution prior to the date it is re
quir d to deposit funds therein under Article
VI, and shall maintain such Funding Account until all nds deposited therein are applied in
accordance with this Agreement. Each Funding Account d moneys on deposit therein (i) shall
be kept separate and apart from all other funds and accounts f the applicable Party (except those
funds may be comingled with other funds solely for in stment purposes), (ii) shall be
withdrawn, used and applied solely for the payment of Stadiu\th
ject Costs and as otherwise
expressly provided by the respective bond ordinances and resos specifically governing the
County Bonds issued under Section 6.2 and in this Agreemen) shall be invested solely in
conservative investments that may not reduce the amounts deinto the Funding Account
and may be immediately withdrawn for the purposes contempb this Agreement, and (iv)
shall be free and clear of all liens, claims, charges, secunce ests and encumbrances
("encumbrances"), except for encumbrances in favor of holderhe C unty Bonds and bonds
issued on parity with the County Bonds or City Bonds, in the of th County Account and
City Account, and encumbrances in favor a provider, guaranr insure of financing to the
Team Affiliates, in the case of the Stadium Developer Act. The tadium Developer
Account play be maintained with such provider, guarantorinsurer o financing, or its
designee, pursuant to the terms of such financing. The Partiell deposit t it contributions
into their respective Funding Accounts as provided in Article V
49
(b) Funds in the Funding Accounts shall be used to pay Stadium Project
Costs, including purchases of materials and equipment by the County on a sales tax exempt basis
in accordance with Section 5.8 and Exhibit J, and to reimburse the City and County for
construction advances as provided in Section 6.7. Notwithstanding the foregoing, (i) neither the
Team nor the Stadium Developer shall be reimbursed from the County Account or the City
Account for any Design Professional fees, except in the case of damages to be paid by the
County or City for breach of this Agreement or another Stadium Agreement, (ii) lobbying costs
incurred by the Team Affiliates are not eligible for payment or reimbursement from the County
Account or the City Acount, and (iii) soft costs which may not be capitalized as project costs
are not eligible for payrn nt or reimbursement from the County Account or the City Account, If
pursuant to the applicable bond ordinances and resolutions, funds deposited into the County
Account are diverted for a y purpose other than to pay Stadium Project Costs, the County
covenants to make up the nount of such diverted funds from available Non Ad -Valorem
Revenues or any other fundin sources available to it in accordance with Section 6.2, as soon as
reasonably practicable.
(c) Earnings'
the investment of the County Account and the City
Account maybe used when realize by the County and the City, respectively, for their respective
uses to pay any costs, including soft costs, related to the Baseball Stadium with any remainder to
be used for any other lawful purpose Earnings from the investment of the Stadium Developer
Account shall be retained in the Sta �um Developer Account for the authorized uses thereof.
Each Party may pay the fees and ex enses of the financial institution holding its Funding
Account from the investment earnings t erein, but not from the funds deposited therein under
Article VI.
(d) Monthly statements o all activity in each Funding Account shall be
furnished to the County, the City and the Stade m Developer, and the Parties shall have the right
to audit those statements.
(e) The County and the Cityhal
Funding Account with a reputable bank or other n,
portions of the Public Infrastructure Costs. Each Pub
funded as provided in Section 3.8 prior to the date by
the Public Infrastructure Costs. The funding procedur
the other provisions of this Article VII shall apply
Account.
7.2 Funding Requests.
each establish a Public Infrastructure
.cial institution to fund their respective
Infrastructure Funding Account shall be
rhich funds are required for payment of
11 and accounting obligations set forth in
to cach Public Infrastructure Funding
(a) The disbursement of funds from the FunNg g Accounts to pay Stadium
Project Costs shall be made first from the County Account and th City Account ratably until
such funds are exhausted, then from the Stadium Developer Account.
(b) The Stadium Developer shall submit to the Gove neat Representatives a
funding request in the form of Exhibit L that clearly delineates between the Baseball Stadium
Costs and the Public Infrastructure Costs. Upon receipt of a properly co Ieted and executed
funding request and the supporting documentation required thereby, the Co my and City shall
50
cause the financial institutions holding their Funding Accounts to distribute funds fi-orn those
Funding Accounts in accordance with the instructions set forth in the funding request. Such
distributions shall be made no later than fifteen (15) days after the County's and City's receipt of
a properly completed and e ecuted funding request, unless a later date is specified in the funding
request.
(c) The Stadi m Developer may withdraw funds from the Stadium Developer
Account by submitting to the ho r of such account a funding request in the form of Exhibit L,
or pursuant to such other proced; eu es as may be required by the terms of the Team Affiliates'
financing. The Stadium Develope shall simultaneously provide a copy of any such funding
request, and the supporting documen tion required thereby, to the Government Representatives.
(d) Upon the contrib tion of its Bond proceeds to its Funding Account, each
Governunent Party may withdraw funs from its Funding Account to reimburse itself for
advances made pursuant to Section 6.7.
.•
8.1 Insurance Requirements, The St
cause the Architect, Construction Manager or
maintain, the following insurance policies (the
VIII
Developer shall purchase and maintain, or
ntractors (as appropriate) to purchase and
.nee Policies"):
(a) Builder's Risk Insurance: Buil is risk insurance for direct physical loss
or damage resulting from an insured peril to the buil '1zg, structures and other improvements
comprising all or part of the Baseball Stadium, inclu g materials and equipment that are
intended for incorporation into the Baseball Stadium or the ublic Infrastructure (as the case may
be), whether located at the Baseball Stadium Site, in Stora e, or in transit. The policy shall
include coverage for physical loss or damage from fire and of er perils as are included under an
"all risk" or "special form" policy. Policy limits shall be equ 1 to the replacement cost of the
Baseball Stadium, subject to sub -limits commercially and rea nably available in the South
Florida insurance market. The Stadium Developer shall be the firs named insured, Miami -Dade
County shall be a named insured and the City of Miami and the ntractor shall be additional
insureds, as their interests may appear. The builder's risk insurance all specifically insure the
construction materials and equipment purchased for the Baseball tadium and the Public
Infrastructure by the County pursuant to the sales tax exempt procurem nt program set forth in
Exhibit J. If the Parties agree that the County should purchase the builde 's risk insurance, then
(i) such insurance shall be purchased by the County; (ii) the cost thereof sh 11 be a credit against
the County's funding conunitments in Section 6.2; and (iii) the County shall e permitted to use
funds on deposit in the County Account to pay for the insurance premium an costs associated
with the builder's risk insurance.
(b) Professional Liability Insurance: Professional liability insurNee for losses
that arise out of the professional services of the Architect and other professionals wo king on the
Baseball Stadium and the Public Infrastructure. Policy limits for the Archite shall be
$10,000,000 per claim/ annual aggregate. At its option, the Stadium Developer y either
51
acquire, or cause the Architect to acquire, additional professional liability coverage, if available
at commercially reasonable rates or the Stadium Developer may procure Owners Protective
Professional Insurance ("OPPI") with minimum limits of at least $20,000,000 each claim/annual
aggregate. Miami -Dade County shall be an additional insured to the OPPI policy.
i�
(c) Workers' Compensation: Workers' compensation insurance meeting the
statutory requirements of t1rte State, including, as applicable, Chapter 440, Florida Statutes.
(d) Genera Liability: Commercial general liability insurance coverage for
third party bodily injury or pr erty damage claims (i) arising out of services performed by the
Stadium Developer or the Cons ction Manager prior to the start of construction for a combined
single limit for bodily injury and property damage of not less than $4,000,000 each
occurrence/annual aggregate, (ii) 'sing out of construction services performed on the Baseball
Stadium Site or portions of the Entre Site encompassing the Public Infrastructure after the start
of constriction for a combined singl limit for bodily injury and property damage of not less than
$50,000,000 each occurrence/annua aggregate, and (iii) arising out of construction services
performed on the Baseball Stadium S e after the date of Substantial Completion (for example,
punchlist or warranty work) for a combr ed single limit for bodily injury and property damage of
not less than $2,000,000 each occurrent /annual aggregate to the extent that such services are
not covered by the developer controlled in urance program contemplated below. The completed
operations coverage under the commercia general liability insurance relating to construction
services performed on the Baseball Stadium ite or portions of the Entire Site encompassing the
Public Infrastructure shall continue for a peri d of not less than five (5) years after Substantial
Completion, Miami -Dade County and the Cit of Miami shall be shown as additional insureds
with respect to this coverage.
(e) Business Automobile LiabilIfy Insurance — covering all owned, non -
owned and hired vehicles used in connection with lits agreement in an amount not less than
$1,000,000. \
(f) Other Insurance: The Stadium Dere
such other insurance coverages for the Project that, in t
appropriate for the risk exposures that are incident to the
professional sports facility or that are incident to the Bast
Entire Site encompassing the Public Infrastructure, incluc
Pollution Liability Insurance.
per shall have the right to procure
Stadium Developer's opinion, are
esign and construction of a major
11 Stadium Site or portions of the
but not limited to Contractor's
The foregoing policy limits may be achieved by any combination primary and excess policies
so long as the overall minimum limits are procured. The County and the City acknowledge that
the Stadium Developer is considering a "developer controlled" insu ce program, which shall
include the following coverages (all as more fully set out in the onstruction Management
Contract): general liability insurance, workers' compensation (includ Zg employers' liability)
insurance and excess coverage. The County and the City agree to p oxide to the Stadium
Developer general assistance and information as reasonably required by t e Stadium Developer
or the insurance underwriters in connection with the Stadium Devel er's procurement,
implementation and management of the "developer controlled" insurance pro ram.
52
8.2 General hlsurance Provisions. The Stadium Developer shall cause to be furnished
to the Government Representatives certificates of insurance for the Insurance Policies setting
forth the limits and sub -limits for each of the Insurance Policies. The Stadium Developer shall
cause to be furnished to the Governnent Representatives copies of the Insurance Policies within
thirty (30) days after the Stadium Developer's receipt of the Insurance Policies. The Insurance
Policies, where appro�&te, shall name the County and the City as additional insureds, as their
interests may appear, a�d shall be maintained and kept in force at least until the date of
Substantial Completion. i� the County determines that any Insurance Policy does not meet the
standard of commercially �Zd reasonably available in the South Florida insurance market, the
County shall promptly noti the Stadium Developer in writing. The County may seek a
determination from the arbitr for pursuant to Article XIV as to whether any Insurance Policy
complies with the requirement of this Article VIII. If the arbitrator determines that the limits
purchased do not meet the sta zdard of commercially and reasonable available in the South
Florida insurance market, then th Stadium Developer shall be required to immediately purchase
additional coverage to meet the s andard as set forth by the arbitrator. The Insurance Policies
shall provide that coverage shall Zot be materially modified, reduced or cancelled until the
insurance carrier(s) endeavor to pr vide at least thirty (30) days' prior written notice of such
modification, reduction or cancellati n to the County Representative, The Stadium Developer
shall provide the County Representati e written notice of any material changes to the Insurance
Policies within thirty (30) days prior to the date the change becomes effective, if practicable, but
in no instance later than the date such ch ages become effective. The Insurance Policies shall be
obtained from financially sound insuranc companies rated not less than A -;VII by A.M. Best &
Company (or any equivalent rating agene approved by the County Risk Management Division,
which approval shall not be unreasonably ithheld) and authorized to do business in the State.
Any and all costs incurred by the Stadium Developer in discharging obligations under this
Article VIII shall be included as Stadium Proj ct Costs.
8.3
(a) If at any time after Co' men
Substantial Completion, as the case may be, all or ani
hifrastiucture shall be damaged or destroyed by a a!
Stadium Developer shall, to the extent Applicable
rebuild, repair and/or alter (such worst being "Casualty
Baseball Stadium or Public Infrastructure as shall hav
conformance with the Design Documents, with such
Stadium Developer shall request and the Government R
ement of Construction and prior to
part of the Baseball Stadium or Public
salty of any nature (a "Casualty"), the
tws permit, promptly restore, replace,
.epair Worlc") all or such portion of the
been damaged or destroyed in general
c anges and alterations thereto as the
)re entatives shall reasonably approve.
(b) Subject to Sections 8.3(c) and (d) belothe Stadium Developer shall be
responsible to fund all deductibles and amounts exceeding any ub-limits due under the Property
Insurance Policy for all Casualty Repair Work up to an amount o $10,000,000.
(c) Notwithstanding Sections 8.3 (b) above, if the unty has been able to obtain
confirmation from the Florida Insurance Commissioner or othe relevant state emergency
management agency (or other appropriate FEMA -related state ency) that the Property
Insurance Policy coverage is reasonable, then the County agrees be responsible for the
53
deductible costs, and any amounts exceeding any applicable sub -limit (if one exists), for any
claim made under the Builder's Risk Insurance Policy for a named storm.
(d) Notwithstanding anything to the contrary in this Agreement, if the reasonably
estimated costs and ex, Ines of the Casualty Repair Work for the Baseball Stadium (excluding
changes and alterati(nsequested by the Stadium Developer) exceed the sum of (i) the amount of
Builder's Risk Insurance roceeds received by the Stadium Developer, (ii) the amount of any
Government Relief Grants received for the Baseball Stadium under Section 8.3(g) below, and
(iii) the amount of up to $1 000,000 to be funded by the Stadium Developer for deductibles and
sub-linnit excesses as provid in Sections 8.3(b) above (the "Insurance Deficiency"), then the
Stadium Developershall have
good o obligation to fund the Insurance Deficiency. h such event the
Parties shall make a gofaith ffort to identify funding sources for the Insurance Deficiency in
order to rebuild the Baseball S dium. If, within one hundred eighty (180) days after the
Casualty, the Parties, after havin exercised good faith efforts, are unable to identify funding
sources sufficient to fund the Insura cc Deficiency and to rebuild the Baseball Stadium, then any
Party shall have the option, exercisa le by written notice to the other Parties to terminate this
Agreement. If any Party exercises its o tion to terminate this Agreement, the Stadium Developer
shall not be obligated to perform any Casualty Repair Work, the Builder's Risk Insurance
Proceeds shall be distributed as set fort in Section 8.3(o below, the unexpended funds on
deposit in the Funding Accounts shall rel in with each respective contributing party, and this
Agreement shall terminate without any furth obligations of the Parties under this Agreement.
(e) Notwithstanding anythin to the contrary in this Agreement, with respect
to any damage or destruction of the Public Infrast ucture, any applicable deductibles, self-insured
retention or other costs and expenses that are not c vered by the insurance policies relating to the
Public Infrastructure shall be the responsibility of th Government Parties and funded by them as
Public Infrastructure Costs.
(f) Unless a Party terminates this Agreement pursuant to
Section 8.3(d) above, all Builder's Risk Insurance Pro eds shall be paid to the Stadium
Developer, deposited in the Stadium Developer Account, an used by the Stadium Developer for
Casualty Repair Work, provided that if such proceeds excee Six Million Dollars ($6,000,000),
such proceeds shall be escrowed in an interest bearing acco t with a financial institution or
other party selected by the Stadium Developer and reasonabl satisfactory to the County (the
"Insurance Escrow Agent") pursuant to an Insurance Escrow A cement in form and substance
reasonably satisfactory to the Stadium Developer and the Co ty (the "Insurance Escrow
Agreement"). The Insurance Escrow Agreement shall, except as s t forth herein, in all events
provide for disbursement of the Builder's Risk Insurance Preece in accordance with the
provisions of this Article VIII. Any insurance proceeds (and e 'ngs thereon) remaining
following completion of and full payment for such Casualty Repair Wo c shall be (i) paid to the
Capital Reserve Fund if the Casualty proceeds relate to the Baseball Stad m and (ii) paid to the
County and the City, 50% each, if the Casualty proceeds relate to the Pu is Infrastructure. If
this Agreement is terminated pursuant to Section 8.3(d) above, the Stadi Developer shall
allocate all Builder's Risk hlsurance Proceeds it receives with respect to any asualty relating to
the Baseball Stadium (i) first to pay, at the option of the County, the demob ion costs of any
remaining improvements on the Baseball Stadium Site and the costs of resto ng the Baseball
Stadium Site to a clean, unimproved condition or the costs of initially securing nd preserving
54
the Stadium Premises, in light of its then existing state, in a marmer reasonably acceptable to the
County and the Stadium Developer so that the Stadium Premises may be restored in the future;
and (ii) any remaining funds after paying (i) shall be allocated among the Stadium Developer and
the Government Parties in proportion to their financial contributions to the Baseball Stadium
Project through that date, If the Builder's Risk Insurance Proceeds relate to the Public
Infrastructure, thA �11 such proceeds shall be paid to the Governument Parties in proportion to
their financial contrib�itions to the Public Infrastructure.
(g) I the event of a Casualty resulting from a named storm, terrorist act or
other occurrence eligible for a Government Relief Grant, the County and the City shall work in
good faith with the Stadi m Developer to apply for all appropriate Government Relief Grants
with respect to such Casua ty, and shall use reasonable efforts to obtain the largest amount of
such grants without jeopar ' ing the ability to obtain funding for essential projects affecting
public health and safety. An such grants must be applied to fund the repair or replacement as
specifically outlined in the spe 'fically applicable award of the Government Relief Grant to the
extent they provide funds for Cas alty Repair Work.
ARTICLE IX
9.1 County Representations Warranties and Covenants. The County represents,
warrants and covenants to the Stadium Dec toper and the City that:
(a) The County has full poer and authority to enter into this Agreement, and
the execution, delivery, and perfonnance of his Agreement by the County have been duly
authorized by all necessary governmental actio (other than the various customary regulatory
approvals, licenses and pemaits which are requir d for the development, construction, use and
operation of the Baseball Stadium), The Coun Mayor or his designee is the party duly
authorized to execute and deliver this Agreement o behalf of the County and has so executed
and delivered this Agreement. All necessary goven ental action required by the County has
been taken to duly authorize the execution, delivery an performance by the County pursuant to
this Agreement. This Agreement is a valid and bindin obligation of the County, enforceable
against the County in accordance with its terms. The ounty Representative has been duly
authorized to act on behalf of the County as provided in this greement.
(b) Except as previously disclosed to then -
Developer and the City in
writing, the execution, delivery and performance of this Agrees lit and the Stadium Agreements
by the County are not prohibited by and do not conflict with an other agreements, instruments,
judgments or decrees to which the County is a party.
(c) Neither the execution, delivery nor, to the actu 1 knowledge of the County,
performance of this Agreement by the County violates the County C arter, the County Code or
any ordinance or resolution of the County. To the actual knowledge __r
the County, the County
has not received any notice as of the date of this Agreement asserting an noncompliance in any
material respect by the County with Applicable Laws with respect to the aseball Stadium Site
and the transactions contemplated in and by this Agreement; and the Co my is not in default
55
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.and the other
Stadium Agreements,
(d) Except as otherwise disclosed to the Stadium Developer and the City in
writing, to its actual k .owledge, no suit is pending which has been served upon the County or of
which the County has adtual knowledge, before or by any court or governmental body seeking to
restrain or prohibit, or seeking damages or other relief in connection with, the execution and
delivery of, or the consumitation of the transactions contemplated in and by, this Agreement or
which might materially and''Rdversely affect the construction, use and operation of the Baseball
Stadium as contemplated in aildd by this Agreement.
(e) If any P{tle Defect first arises subsequent to the execution of this
Agreement which is created by, t ough or under the County and not by the acts of the Stadium
Developer, the Team, the City or t Heir respective agents, contractors, employees and tenants, the
County shall take all reasonable ac 'ons, at its sole cost and expense, to promptly eliminate such
Title Defect. The Stadium Develo er acknowledges that utility easements and other matters
expressly permitted in this Agreemei t or the other Stadium Agreements shall not constitute a
Title Defect. Except as expressly p mitted under this Agreement and the other Stadium
Agreements, the County shall not create any Lien which would encumber the Baseball Stadium
Site and materially diminish, impair or isturb the rights of the Stadium Developer under this
Agreement.
(i) The County will cony to the City pursuant to Section 3. 10, good and
marketable title to Lots 3 and 4, free and clear o all Liens, except Permitted Exceptions.
9.2 City_Representation1Warranties d _Covenants. The City represents, warrants
and covenants to the Stadium Developer and the unty that:
(a) The City has full power and aut ority to enter into this Agreement, and the
execution, delivery, and performance of this Agreemei t by the City have been duly authorized
by all necessary governmental action (other than the rious customary regulatory approvals,
licenses and permits which are required for the developm nt, construction, use and operation of
the Baseball Stadium). The City Manager is the party duly uthorized to execute and deliver this
Agreement on behalf of the City and has so executed a d delivered this Agreement, All
necessary governmental action required by the City has eon taken to duly authorize the
execution, delivery and performance by the City pursuant to thr Agreement. This Agreement is
a valid and binding obligation of the City, enforceable against -he City in accordance with its
tens. The City Representative has been duly authorized to act on behalf of the City as provided
in this Agreement.
(b) Except as previously disclosed to the Stadium eveloper and the County
in writing, the execution, delivery and performance of this Agreeme t and the other Stadium
Agreements by the City are not prohibited by and do not conflict wit any other agreements,
instruments, judgments or decrees to which the City is a party..
M,
(c) Neither the execution, delivery nor, to the actual knowledge of the City,
performance of this Agreement by the City violates the City Charter, the City Code or any
ordinance or resolution of the City. To the actual knowledge of the City, the City has not
received any notice as of the date of this Agreement asserting any noncompliance in any material
respect by the City with Applicable Laws with respect to the Entire Site and the transactions
contemplated in and by this Agreement; and the City is not in default with respect to any
judgment, order, injunction r decree of any Governmental Authority which is in any respect
material to the transactions ontemplated in and by this Agreement and the other Stadium
Agreements.
(d) Except as he
o� rwise disclosed to the Stadium Developer and the County in
writing, to its actual knowledge, A, suit is pending which has been served upon the City or of
which the City has actual knowled e, before or by any court or governmental body seeking to
restrain or prohibit, or seeking daNli ges or other relief in connection with, the execution and
delivery of, or the consummation oe transactions contemplated in and by, this Agreement or
which might materially and adversely ffect the construction, use and operation of the Baseball
Stadium or the Parking Facilities as con emplated in and by the Stadium Agreements,
(e) If a Title Defect a 'ses subsequent to the execution of this Agreement
which is created by, through or under the ity and not by the acts of the Stadium Developer, the
Team., the County or their respective agent contractors, employees and tenants, the City shall
take all reasonable actions, at its sole cost aq expense, to promptly eliminate such Title Defect.
The City shall not create any Lien which ould encumber the Baseball Stadium Site and
materially diminish, impair or disturb the rights f the Stadium Developer under this Agreement.
(f) The City will convey to
marketable title to the Baseball Stadium Site,
Exceptions.
9.3 Stadium Developer Representations,
Developer represents, warrants and covenants to the
County pursuant to Section 3.5, good and
and clear of all Liens, except Permitted
and the City that:
The Stadium
(a) The Stadium Developer is a limited liability company, duly fonned and
validly existing under the laws of the State of Delaware, a d has all requisite limited liability
company power and authority to enter into this Agreement This Agreement is a valid and
binding obligation of the Stadium Developer, enforceable a Tst the Stadium Developer in
accordance with its terns. A
(b) The execution, delivery and performance by t e Stadium Developer of this
Agreement have been duly authorized by all necessary limited liab ity company action of the
Stadium Developer and will not violate the Stadium Developer's c rtificate of formation or
limited liability company agreement, or the Major League Baseball Co stitution, or result in the
breach of or constitute a default under any loan or credit agreement, or other agreement or
instrument to which the Stadium Developer is a party or by which the St dium Developer or its
assets may be bound or affected. All consents and approvals of any Perso (including members
of the Stadium Developer, if necessary) required in connection with the adium Developer's
execution of this Agreement have been obtained.
57
(c) Except as otherwise disclosed to the County and City in writing, to its
knowledge, no suit is pending against or affects the Stadium Developer which has been served
upon or of which the Stadium Developer has knowledge which could have a material adverse
affect upon the Stadium Developer's performance under this Agreement or the financial
condition or business of the Stadium Developer. There are no outstanding judgments against the
Stadium Developer.
(d The Stadium Developer has not paid or given, and will not pay or give,
any third person a money or other consideration for obtaining this Agreement or the other
Stadium Agreements other than normal costs of conducting business and costs of professional
services such as the s\arnot
of architects, engineers and attorneys.
(e) xecution, delivery and performance of this Agreement and the other
Stadium Agreements prohibited by and do not conflict with any other agreements,
instruments, judgmendecrees to which the Stadium Developer is a party or is otherwise
subject.
(f) The codtrolling owner of the Team has, simultaneously with the execution
of this Agreement, executed t Ne affidavit in the form attached hereto as Exhibit M.
(g) The Stadhu
of this Agreement asserting an
Developer with any Applicable L,
Agreement and the other Stadium
respect to any judgment, order, ir,
any respect material to the trans,
Stadium Agreements.
9.4 Mutual Covenants.
Developer has received no notice as of the date of execution
noncompliance in any material respect by the Stadium
with respect to the transactions contemplated in and by this
cements; and the Stadium Developer is not in default with
.nc 'on or decree of any Governmental Authority which is in
tions contemplated in and by this Agreement and the other
(a) The Parties, whenever ar as often as each shall be reasonably requested
to do so by another Party or by the Team, shaexecute or cause to be executed any further
documents and take any further actions as may be \a,,ably necessary or expedient in order to
consummate the transactions provided for in, anda-yout the purpose and intent of, this
Agreement and each of the other Stadium Agreemsubject, however, in all instances to any
necessary Board or Commission approvals.
(b) In exercising its rights and fulfillin its obligations under this Agreement
and each of the other Stadium Agreements, each of the Parti shall act in good faith.
(c) No Party shall terminate this Agreement on the ground of ultra vires acts
or for any illegality or on the basis of any challenge to the en orceability of this Agreement,
except as otherwise permitted in this Agreement or in any other S dium Agreement. Subject to
the preceding sentence, no such challenge may be asserted by any rty except by the institution
of a declaratory action in which the Parties and the Team are parties.
(d) Each Party shall contest any challenge in whir the Baseball Stadium
Project, the design, construction, financing, licensing or operation of the aseball Stadium or this
Agreement or any of thothe
r Stadium Agreements is placed in issue or questioned by any
Person whatsoever, incl, 'ng all appellate proceedings, the purpose of such litigation being to
estop, hinder or delay the a quisition of the Baseball Stadium Site or the negotiation, execution
or implementation of this A reement or any of the other Stadium Agreements involving any of
the County, the City or them Affiliates (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 Parties shall pay all of the
legal fees, costs and other expen s incurred by it in contesting the Challenge. The applicable
parties shall consult with the othe Parties in contesting any Challenge and the Parties agree to
cooperate and act reasonably and di '\Devclopm
ly in defending any Challenge. The Parties shall take
all ministerial actions and proceedreasonably necessary or appropriate to remedy any
apparent invalidity, lack or defect ihorization, or illegality, or to cure any other defect,
which has been asserted or threatenept with respect to the County or City, any such action
which requires approval of the Boarommission, as the case may be, or is not deemed by
the County or City, as the case may present a conflict of interest or is not deemed by the
County or the City, as the case maye contrary to Applicable Law. During the pendency
of any Challenge, the County or Citap ropnate) shall continue to process all requests for
Development Requirements, and shaltinu to issue such Development Requirements, for the
construction of the Baseball Stadieven if such Development Requirements might be
invalidated if the Challenge is deed a versely to the Parties, unless the continued
processing and/or issuance of the lopmei Requirements during the pendency of the
Challenge is expressly contrary to la
(e) Should any Party receive1 owledgo about any matter which may
constitute a breach of any of its warranties or covenan s set forth in this Article 1X which arises
after the date of this Agreement, it shall promptly notif the other Parties of the same in writing.
Specifically, without limitation, the Parties shall promptl inform the others of any suits referred
to in Sections 9.1(d), 9.2(d) and 9.3(c) and any Challenge rkferred to in Section 9.4(d).
(f) During the term of this Agreement, $ County shall comply with all
Applicable Laws relating to its ownership of the Baseball S dium and the Baseball Stadium
Site, but not with respect to the use, operation, development,o cupancy and/or construction of
the Baseball Stadium by the Stadium Developer (which shall be t e responsibility of the Stadium
Developer, except as specifically provided below). Each Gove ent Party shall comply with
all Applicable Laws relating to the exercise of its rights and perfor ance of its obligations under
the Stadium Agreements, but not with respect to the use, operatio i, development, occupancy
and/or construction of the Baseball Stadium by the Stadium Dev oper (which shall be the
responsibility of the Stadium Developer, except as specifically provid below). The County in
its capacity as owner of the Baseball Stadium and Baseball Stadium Site shall execute such
documents and file such documents and reports as may be reasonably ecessary to enable the
Stadium Developer, the Stadium Operator and their Affiliates to ob air and maintain all
necessary permits and licenses that are required of an owner of the Bas ball Stadium and/or
Baseball Stadium Site. With regard to any entry by the County or the Ci into the Baseball
Stadium for any purpose, the County and the City shall comply with all Applid ble Laws relating
to such entry.
59
(g) All covenants, representations and warranties contained in this Agreement
shall survive the execution and delivery of this Agreement. No action taken pursuant to or
related to this Agreement, including any investigation by or on behalf of a Party shall be deemed
to constitute a waiver\�y the Party taking such action of compliance with any representation,
warranty, condition or a*eement in this Agreement.
(h) In exercising its rights and fulfilling its obligations under this Agreement
and each of the other StaNium Agreements, each of the County, the City and the Stadium
Developer shall act in good faith. Notwithstanding the foregoing, each party acknowledges that
in each instance under this Agi`eement and the Stadium Agreements where a party is obligated to
exercise good faith or to use god faith efforts, such party shall not be required to expend any
funds, or grant any other conside ation of any kind, in the performance of such undertaking, and
each party further acknowledges tPat the obligation of any party to act in good faith, or undertake
good faith efforts does not constitu e a warranty, representation or other guaranty that the result
which the parties are attempting tochieve will be successfully achieved and no party shall be
liable for any failure to achieve the reult or results intended so long as the party has complied
with its obligation to act in good faith.
(i) By execution of this gr
Mayor or his designee to execute on behal \of
Board approval where required by Applicable
Mayor or his designee, in consultation with th
his designee determines that Board approval
foregoing, (a) each party shall have reasonable
documents which it is asked to execute; (b) no
any rights, duties or obligations of such party u
and (c) such documents may, if required by
designee, after consultation with the County
require approval of the Board.
DEFA
eement, the County hereby authorizes the County
the County any additional documents, subject to
Law or where, in the discretion of the County
County Attorney's Office, the County Mayor or
apnecessary or desirable. Notwithstanding the
proval rights over the form and substance of all
patty shall be required to fundamentally change
rider his Agreement or the Stadium Agreements;
Apptable Law or the County Mayor or his
Attorneys Office, deems necessary or desirable,
ARTICLE X
10.1 Stadium Developer Default. Each of the following shall constitute a default by
the Stadium Developer hereunder (a "Stadium Developer Default'�;i
(a) If any representation or warranty made by the Stadium Developer in this
Agreement shall at any time prove to have been incorrect in any mate nal respect as of the time
made, and the Stadium Developer fails to cause such representation r warranty to become
correct within thirty (3 0) days after written notice thereof is given to the S1, dium Developer by a
Government Representative; provided, however, that if it is not reasonal possible to cause
such representation or warranty to become correct within such thirty (30) -da period, such cure
period shall be extended for up to one hundred eighty (180) days followin the date of the
original notice if within thirty (30) days after such written notice the Sta 'um Developer
commences and thereafter diligently continues to cause such representation o warranty to
become correct.
roll]
(b) If the Stadium Developer fails to pay any amount payable by the Stadium
Developer under this Agreement and fails to cure the same within thirty (30) days after written
notice to the Stadium Developer from a Government Representative, except to the extent such
failure is due to the \failure of a Government Party to fund an undisputed funding request
(including any disputes resolved through arbitration hereunder) made in accordance with
Section 6.7 or 7.2; proviged, however, that no cure period shall apply to, and no right to cure
exists for, the failure of tit Stadium Developer to pay any amount it is obligated to pay under
Article VI.
(c) If the Stadium Developer shall breach any of its other covenants or
agreements in this Agreement other than as referred to in Sections 10.1(a) and (b) and such
breach is not cured within thirty (30) days after written notice thereof is given to the Stadium
Developer by a Government Rep �e,sentative; provided, however, that if it is not reasonably
possible to cure such breach with% such thirty (30) -day period, such cure period shall be
extended for up to one hundred eighy (180) days following the date of the original notice if
within thirty (30) days after such itten notice the Stadium Developer commences and
thereafter diligently continues to cure su � breach.
10.2 Government Party Default. \ ach of the following shall constitute a default by a
Goveriunent Party hereunder (a "GovenuneAParty Default"):
(a) If any representation or\warranty made by a Government Party in this
Agreement shall at any time prove to have been\ ncorrect in any material respect as of the time
made, and the Government Party fails to cause suc repres entation or warranty to become correct
within thirty (30) days after written notice thereois given to the Government Party by the
Stadium Developer; provided, however, that if it � not reasonably possible to cause such
representation or warranty to become correct within suc\\\thirty (30) -day period, such cure period
shall be extended for up to one hundred eighty (180)following the date of the original
notice if within thirty (30) days after such written noticGovernment Party commences and
thereafter diligently continues to cause such representatiwarranty to become correct.
(b) If a Government Party fails to pay any arra untpayable by the Government
Party under this Agreement and fails to cure the same within thi (30) days after written notice
to the Government Party from the Stadium Developer; provided, h wever, that such cure period
shall not apply to, and no right to cure exists for, the failure of a G vernment Party to pay any
amount it is obligated to pay under Article VI, and a ten (10) day cure period shall apply for any
failure to comply with the obligations under Section 7.2(b).
(c) If a Government Party shall breach any of the other covenants or
provisions in this Agreement other than as referred to in Sections 10.2(a) and b) and such breach
is not cured within thirty (30) days after written notice thereof is given to the overnment Party
by the Stadium Developer; provided, however, that if it is not reasonably poss ble to cure such
breach within such thirty (30) -day period, such cure period shall be extende for up to one
hundred eighty (180) days following the date of the original notice if within thirtyD).days after
such written notice the Government Party commences and thereafter diligently corgiues to cure
such breach; provided, further, that no cure period shall not apply to, and no rights t:cure exists
61
for, any covenant that is required to be performed by a specified date or during a specified period
of time.
10.3 Remedies.
(a) Subject to complying with Article XIV with respect to matters that must
be resolved by arbitration, in addition to any other rights or remedies, except as otherwise
specifically provided in this Agreement or any of the Stadium Agreements, any Party may
institute litigation to recover damages for any Default (including any damages a Party may incur
relating to the Parking Facilities) or to obtain any other remedy at law or in equity (including
specific performance, penrianent, preliminary or temporary injunctive relief, and any other kind
of equitable remedy) consistent with the purposes of this Agreement. Subject to Article XIV, to
the extent applicable, neither\tiie existence of any claim or cause of action of a Party against
another Party, whether predio ted on this Agreement or otherwise, nor the pendency of
arbitration proceedings involvih another Party, shall (a) constitute a defense to specific
enforcement of the obligations %f such other Party under this Agreement or (b) bar the
availability of injunctive relief.
(b) Litigation perm%�ed by this Agreement shall only be instituted in the
eleventh Judicial Circuit Court of Flora a for Miami -Dade County or the Miami division of the
United States District Court for the So41ern District of Florida. The Parties consent to the
jurisdiction and venue of such courts for su h permitted litigation.
(c) Except with respect t rights and remedies expressly declared to be
exclusive in this Agreement or the other Sta um Agreements, the rights and remedies of the
Parties are cumulative and the exercise by any arty of one or more of such rights or remedies
shall not preclude the exercise by it, at the sa e or different times, of any other rights or
remedies for the same Default or any other Default.
(d) Any failure of a Party to exercise any right or remedy as provided in this
Agreement shall not be deemed a waiver by that Party o any claim for damages it may have by
reason of the Default.
(e) Damages to be paid by the County and�ity under this Article X shall be
payable from Non -Ad Valorem Revenue sources.
10.4 Self -Help Remedies.
(a) If a court of competent jurisdiction or the Arl3 trator(s) selected Under
Article XIV has determined pursuant to a final judgment or award tha a Stadium Developer
Default has occurred and such Stadium Developer Default is continuing, o if Stadium Developer
has abandoned the Baseball Stadium Project for a period of sixty (60) cons cutive days without
providing to the Goverunent Parties reasonable assurances as to Stadium D veloper's ability to
proceed with the Baseball Stadium Project, then, in addition to any other reme y available to the
Government Parties under this Agreement, the Government Parties may pursue any one or more
62
of the following remedies concurrently or successively, it being the intent hereof that none of
such remedies shall be to the exclusion of any other:
(b) Take possession of the Baseball Stadium Site and the Public Infrastructure
sites, as the case may be, and complete the construction and the equipping of the Baseball
Stadium and the Public Infrastructure sites, as the case may be, and do anything required,
necessary or advisable in the County's sole judgment to fulfill the obligations of the Stadium
Developer hereunder, including the rights to avail itself of or procure performance of the
Construction Management Contract or the Architect's Contract, as the case may be, to let any
contracts with the same contractors, architects, subcontractors or others and to employ watchmen
to protect the Baseball Stadium Site and the Public Infrastructure sites, as the case may be, fi-om
injury. Without restricting the generality of the foregoing and for the purposes aforesaid, the
Stadium Developer hereby appoints and constitutes the County as the Stadium Developer's
lawful attorney-in-fact with full power of substitution in the premises to perform the following
actions: \\
(i) to complete construction and equipping of the Baseball Stadium
and the Public Infrastructure
l
(ii) t� use funds on deposit in the County Account, the City Account or
the Stadium Developer Account or to advance funds in excess of the Stadium Project Budget to
complete the Baseball Stadium anq the Public Infrastructure, as the case may be;
(iii) to ma74e changes in the Design Documents which shall be
necessary or desirable to complete the\l\ seball Stadium and the Public Infrastructure, as the case
maybe;
(iv) to retain or\employ new contractors, subcontractors, architects,
engineers and inspectors;
(v) without inquiring into and without respect to the validity thereof,
to pay, settle or compromise all existing bills an\\ claims which may be Liens, or to avoid such
bills and claims becoming Liens, against the Base all Stadium Site and the Public Infrastructure
sites, as the case may be or as may be necess y or desirable for the completion of the
construction and equipping of the Baseball Stadium for the clearance of title to the Baseball
Stadium Site, for the completion of the construction a d equipping of the Public Infrastructure,
or for the clearance of title to the Public Infrastructure sit ;
(vi) to prosecute and defend actio s or proceedings in connection.with
the Baseball Stadium Site and the Public Infrastructure, as the ase may be;
(vii) to take action and require such pe formance as the County deems
necessary or advisable under any of the payment and/or performance bonds to be furnished by
the Construction Manager under the Construction Management Con ract and to make settlements
and compromises with the surety or sureties there under, and in conn ction therewith, to execute
instruments of release and satisfaction; and
63
(viii) to do any and every act which the Stadium Developer might do in
its own behalf with respect to the Baseball Stadium Site and the Public Infrastructure, as the case
may be, it being understood and agreed that this power of attorney shall be a power coupled with
an interest and cannot be revoked.
(b) Exerci§e or pursue any other remedy or cause of action permitted at law or
in equity or under this Agreernnt or any of the Stadium Agreements.
(c) If a court`\of competent jurisdiction or the Arbitrator(s) selected under
Article XIV has determined purl ant to a final judgment or award that a Government Party
Default has occurred and such Government Party Default is continuing, in addition to any other
remedy available to the Stadium Developer under this Agreement, the Stadium Developer shall
have the right, but not the obligation,� render the performance required to cure the Government
Party Default.
10.5 Termination. Notwithst ndi.ng any other provision in this Agreement to the
contrary, this Agreement may not be to 'nated by any Party (upon a Default or otherwise), and
each Party waives any right to terminate it ay have at law or in equity, except where a specific
right of termination is granted to a Party un r this Agreement or any other Stadium Agreement,
10.6 Exclusive Remedies, The righ
Parties in this Article X are intended to be the e
a breach or default by the other Parties, except
Agreement or in any of the other Stadium Agree
11.1 Termination Rights.
and remedies conferred upon or reserved to the
elusive remedies available to each of them upon
�s may be otherwise expressly set forth in this
ARTICLE
I1
11.1.1. Termination for Convenience. Any Party sha 1 have the right at any time prior to
July 1, 2009, by written notice to the other Parties, to termi to this Agreement without cause
and/or for the Party's convenience. In the case of the City, su h termination shall be exercised
only after approval by the Commission. Upon such termination 1 Parties shall be relieved of all
liabilities under this Agreement (except with respect to any br aches by any Party prior to
termination). In such event, each of the County, City and adium Developer shall be
responsible for Reimbursable Interim Costs up to their respective eimbursable. Interim Costs
Limitation. In the event any of the three Parties has expended ore than its respective
Reinabursable Interim Costs Limitation, the Party or Parties, as the ca e may be, having spent
less than their respective Reimbursable Interim Costs Limitation shall r,imburse such Party all
amounts necessary to reduce that Party's total portion of the Reirmbursab e Interim Costs to its
respective Reimbursable Interim Costs Limitation. If, at the time of calcul tion, the total of the
Reimbursable Interim Costs expended are less than $20,500,000, then ch Party shall be
reimbursed in proportion to the percentage that its respective Reimbursa le Interim Costs
Limitation bears to $20,500,000. (By way of example, if through the date o ernmination (and
that date is after June 1, 2009), $5,125,000 in Reimbursable Interim Costs wer expended, and
64
the County had spent $2,000,000, the City had spent $90
00, and the &tadium Developer spent
$2,225,000, then the Stadium Developer would reimbty County $250,000 and reimburse
the City $25;000, such that all Parties would end up w�ih a final contributions of $2,500,000 by
the Stadium Developer, $1,750,000 by the County and`$875,000 by the City.)
11. 1.2 This Agreement shall terminate upon written notice from any Party to the other
Parties if, at any time prior to Substantial Completion�bf the Baseball Stadium Work, a court of
competent jurisdiction has issued a final and unappeal ble order that (a) invalidates the issuance
of the County Bonds or City Bonds or bonds issued b the City to fund the construction of the
Parking Facilities, (b) precludes or prohibits the use o County and/or City funds in connection
with the construction of the Baseball Stadium or the Par l 'ng Facilities, (c) prohibits or materially
impairs or restricts the right of the Team to use the Base all Stadium for MLB Home Games or
the Operator to operate the Baseball Stadium except if uch arises due to the wrongful act or
omission of a Team Affiliate or from a Team AffiIiate's de ault under any agreements to which it
is a party, or (d) prohibits or materially restricts the cstruction of the Baseball Stadium,
provided that each Party has used reasonable best efforts to odify this Agreement and any other
Stadium Agreements (as necessary) in order to bring this greement and the other Stadium
Agreements into compliance with the law, as set forth in the a ove-referenced final unappealable
order, for a period of not less than ninety (90) days. If this greement terminates under this
Section 11.1.2, each Party shall be responsible for a share o Stadium Project Costs, Public
Infrastructure Costs, and costs for the development and const ction of the Parking Facilities
expended through the date of termination in proportion to their f riding commitments under this
Agreement and the City Parking Agreement, If this Agre ment terminates under this
Section 11.1.2, each of the other Stadium Agreements shall, or the effective date of such
termination, terminate with respect to all future rights and obliga ons of performance by the
Parties and their Affiliates (except for the rights and obligations t at expressly are to survive
termination as provided in the Stadium Agreements). Termination o this Agreement under this
Section 11.1.2 shall not alter the claims, if any, of the Parties for bi aches of this Agreement
occurring prior to such tennination, and the obligations of the Pa 'es with respect to such
breaches shall survive termination (including those giving rise to such to 7ination).
11.1.3 This Agreement shall terminate if the Operating Agre ment is terminated in
accordance with its terms.
11.1.4 Any Party's Default under Section 10.1(b) or 10.2(b) that a ises from its failure to
fund any amounts due under Articles VI or VII shall entitle each of the nor -Defaulting Parties to
terminate this Agreement following written notice of the Default (fr one of the non -
Defaulting Parties) and the Defaulting Party's failure to cure such Default within one hundred
and eighty (180) days. This provision shall not restrict any Party's right to ursue the remedies
set forth in Section 10.3 of this Agreement or to pursue any other available remedy at law or in
equity. \\
11.2 Effect of Termination. Upon the termination of this Agree ent pursuant to
Section 8.3(d), any provisions of this Article XI or any other termination r lits under this
Agreement, no Party shall have any further liability or obligation to any other arty except as
expressly set forth in this Agreement; provided that no Party shall be relieved of any liability for
breach of this Agreement related to events or obligations arising prior to such termination.
65
ARTICLE XII
rNTI)EMNIFICATION
12.1 Indemnification by Stadium Developer. To the maximum extent permitted by
State law, the Stadium Developer shall indemnify, defend and hold harmless each Government
Party, and its officers, employees, attorneys, agents and instrumentalities from and against any
claim, loss, damage, liability, cost or expense, including reasonable attorneys' fees, directly
arising out of (a) alt y breach, default or misrepresentation by the Stadium Developer under this
Agreement or (b) arty personal or bodily injury, including death, to any person and destruction of
Property resultingfi m the negligent performance (or failure to perform) by the Stadium
Developer of the , provided, however, that the foregoing indemnification shall not extend
to those claims, losses, amages, liabilities, costs or expenses asserted against or suffered by a
Governinent Party (orts
fficers or employees) which are due to the negligent acts or omissions
of the Goverunerit Party ( its officers or employees), or to any action taken by the Government
Party in violation of this greement or any action not taken that is required under this
Agreement. Notwithstandin the foregoing, the Stadium Developer shall not be liable for any
liabilities, damages, suits, clai s and judgments of any nature (including reasonable attorneys'
fees and expenses) arising fro or in connection with any loss or Iiability due to a Force
Majeure.
12.2
12.2.1 County Indemnificatio . The County does hereby agree to indemnify and hold
harmless the Stadium Developer and the Team Affiliates ("Developer Indemnitees") to the
extent and within the limitations of Secti n 768.28 Fla. Stat., and subject to the provisions of that
Statute whereby the County shall not be 1 \be
le to pay a personal injury or property damage
claim or judgment by any one person wheeds the sum set forth in said statute, or any
claim or judgments of portions thereof, when totaled with all other occurrences, exceeds
the sum set forth in said statute, from anll personal injury or property damage claims,
liabilities, losses and causes of action arism the same claim which may arise solely as a
result of the negligence of the County intion with its rights and obligations under this
Agreement. However, nothing herein shamed to indemnify the Developer Indemnitees
from any liability or claim arising out of the negli ent performance or failure of performance of
the Stadium Developer or its employees, agents, se ants, partners, principals or subcontractors,
or the Team, the Team Affiliates, the City or any un lated third party. The Stadium Developer
expressly understands and agrees that any insurance irotection required by this Agreement or
otherwise provided by the County shall in no way limit e responsibility to indemnify, keep and
save haimIcss and defend the Developer Indemnitees as erein provided. Notwithstanding the
foregoing, the County shall not be liable for any liabilities, damages, suits, claims and judginents
of any nature (including reasonable attorneys' fees and expenses) arising from or in connection
with any loss or liability due to a Force Maj cure.
12.2.2 City Indemnification. The City does hereb agree to indemnify and hold
harmless the Developer Indemnitees to the extent and within t e 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 aV 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. However, nothing herein shall be deemed
to indemnify the Developer Indemnitees_from any liability or claim arising out of the negligent
performance or failure of performance of the Stadium Developer or its employees, agents,
servants, partners, principals or subcontractors, or the Team, the Team Affiliates, the County or
any unrelated third party. The Stadium Developer expressly understands and agrees that any
insurance protection required by this Agreem�nt or otherwise provided by the City shall in no
way limit the responsibility to indemnify, kee and save harmless and defend the Developer
Indemnitees as herein provided. NotwithstandiA.R the foregoing, the City shall not be liable for
any liabilities, damages, suits, claims and jucymcnts of any nature (including reasonable
attorneys' fees and expenses) arising from or in 'pornection with any loss or liability due to a
Force Majeure.
12.3 hndemnification Procedures.
(a) If any Person entitled to inde`lification pursuant to this Article XII (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 �ticle XII, or shall receive notice of any
action or proceeding of any matter for which indemnifie tion may be claimed (each, a "Claim"),
the Indemnified Party shall, within twenty (20) days folio ing 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 "Inde nitor") a reasonable opportunity to
respond to such service process or notice of claim), and wit in twenty (20) days after any other
such notice, notify the Indemnitor in writing thereof to ether with a statement of such
information respecting such matter as the Indemnified Party then has; provided, however, the
failure to notify the Indenmitor shall not relieve the Indemnit from any liability which it may
have to the Indemnified Party except and solely to the extumt that such failure or delay in
notification shall have adversely affected the Indernnitor's abi ity to defend against, settle or
satisfy any such Claim.
(b) The Indemnitor shall be entitled, at its co t and expense, to contest or
defend any such Claim by all appropriate legal proceedings tl ough attorneys of its own
choosing provided the Indemnitor shall have first notified the Bide nified Party of its intention
to do so within twenty (20) days after its receipt of such notice fro the Indemnified Party. If
within twenty (20) days following such notice from the Indemnified P --rt
the Indemnified Party
has not received notice from the hldemnitor that such claim will be coltested or defended by the
Indemnitor, the Indemnified Party shall have the right to (i) authorize a torneys satisfactory to it
to represent it in connection therewith and/or (ii) subject to the approval f the Indemnitor, which
approval shall not be unreasonably withheld or delayed, at any time sett e, compromise or pay
such Claim, in either of which events the Indemnified Party shall be entit ed to indemnification
thereof as provided in this Article XII. These provisions in no way pre crit the Indemnified
Party froin taking whatever actions are necessary to defend the Claim durin 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 indemn fiable. If required
67
by the Indemnitor, the hndemnified 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 hldemnitor will reimburse t e hadenified Party for any expenses reasonably
incurred by the Indemnified Party in so cooper tinm
g.
(c) The Indemnitor shall payo the Indemnified Party in cash all amounts to
which the Indemnified Party may become entitled by reason of the provisions of this Article XII,
such payment to be made within thirty (30) days a er such amounts are finally determined either
by mutual agreement or by judgment of a court of in tent 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 aid by the Indemnified Party without the
consent of the Indemnitor; provided however that if su action is taken without the Indemnitor's
consent, its indemnification obligations with respee thereto shall be terminated and the
Indemnitor shall have no obligation to the Indennnifie Party. The Indemnitor shall have the
right to settle, compromise or pay any Claim being d ended by the Indemnitor without the
Indemnified Party's consent so long as such settlemen or compromise does not cause the
Indemnified Party to incur any present or future material c sts, 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 nthe Indemnified Party.
12.5 Survival. The obligations contained i this Article XII will survive the
expiration or earlier termination of this Agreement but only ith respect to an event that may
give rise to a Claim that in turn gives rise to a right of indemni cation under this Article XII and
which such event occurs prior to such expiration or termination.
12.6 Interpretation. To the extent these indemni n ation clauses or any other
indemnification clause in this Agreement do not comply with Cha ter 725, Florida Statutes, as
may be amended, these provisions shall hereby be interpreted as the arties' intention to provide
the maximum indemnification allowed by Chapter 725, Florida Statute , as maybe amended.
ARTICLE XIII
PARTY REPRESENTATIVES
13.1 Designation of County and City Representatives. The Cou ty Mayor or his
designee (the "Countyepresentative") shall act as liaison and contact per n between the
Stadium Developer and the County in administering and implementing the terms of this
Agreement. The City Manager or his designee (the "City Representative" and, tog ther with the
County Representative, the "Government Representatives") shall act as liaison nd contact
person between the Stadium Developer and the City in administering and irnplem nting the
terms of this Agreement. The County Mayor and the City Manager shall notify the oth r Parties
in writing if they designate or redesignate another individual to serve as County Repres ntative
or City Representative, respectively. Each of the County Representative and th City
Representative shall have the power, authority and right, on behalf of the County andity,
respectively, and without any further resolution or action of the Board or Commission, excep as
otherwise specifically provided in this Agreement, and so long as such actions or approvals o
-1
not cause an increase to such Government Party's budgeted contributions under this Agreement
or are to be paid from a previously identified and approved allowance fund for such Government
Party, to:
(a) review, approveand co,
in writing, to documents, plans, applications,
and requests required or allowed by the Stadi m in
to be submitted to the Government
Representative(s), the County and/or the City, s the case may be, pursuant to this Agreement,
including the Design Documents and fonns of the Architect Contract or Construction
Management Contract;
(b) consent to and approve, in w 'ting, actions, events and undertakings by the
Stadium Developer or other Persons for which co, sent and/or approval is required from the
Government Representatives(s), the County and/or the City, as the case may be, under this
Agreement;
(c) make appointments of individ
designated by the Government Representative(s), the
in this Agreement;
(d) sign any and all documents on
case may be, necessary or convenient to the foregoing
timely manner; and
or entities required to be appointed or
my and/or the City, as the case may be,
of the County and/or City, as the
els, consents and appointments in a
(e) grant written extensions of time that exVd. deadlines or time periods by
up to 120 days and that do not otherwise materially affect the rigs or obligations of the Stadium
Developer or Team Affiliate, the County or the City, as the case ay be, under this Agreement.
Any consent, approval, decision, or determination under this Agreement by the County
Representative or the City Representative shall be binding on the County and the City,
respectively. The Stadium Developer and any other Person dealing ith the County or City in
connection with this Agreement or any matter governed by this Agree ent may rely and shall be
fully protected in relying upon the authority of its Government Represe tative to act for and bind
the County and City, as the case may be, in any such matter. The Count and City shall cause its
Govenunent Representative to comply with all of the provisions of this A eement.
13.2 Designation of Stadium Developer Representative. Clau e Delonne or his
designee (the "Stadium Developer Representative") shall act as liaison kd contact person
between the Stadium Developer, on the one hand, and the County and/or the ity, on the other
hand, in administering and implementing the terms of this Agreement. The St dium Developer
Representative shall have the power, authority and right, on behalf of the Stad um Developer,
and without any further resolution or action of the Stadium Developer, excep as otherwise
specifically provided in this Agreement to:
(a) review, approve and consent to documents, plans, applica ions, and
requests required or allowed by the Govermnent Representative(s), the County and/or the City,
as the case may be, to be submitted to the Stadium Developer pursuant to this A ement,
including Design Documents and forms of the Architect Contract or Construction Mana ement
Contract;
Me
(b) consent to and approve actions, events and undertakings by the
Government Representative(s), the County and/or the City, as the case may be, or other Persons
for which consent and/or ap oval is required from the Stadium Developer tinder this
Agreement;
(c) make appoin nents of individuals or entities required to be appointed or
designated by the Stadium Develope�\in this Agreement; and
(d) sign any and all` ocuments on behalf of the Stadium Developer necessary
or convenient to the foregoing approval , consents and appointments in a timely manner.
Any consent, approval, decision, detenni at
the Stadium Developer Representative
Government Parties and any other Person
with this Agreement or any matter govern
protected in relying upon the authority of tl
bind the Stadium Developer in any such mat
Developer Representative to comply with all
W
n, waiver or amendment under this Agreement by
be binding on the Stadium Developer. The
aling with the Stadium Developer in connection
by this Agreement may rely and shall be fully
Stadium Developer Representative to act for and
The Stadium Developer shall cause the Stadium
-�he provisions of this Agreement.
XIV
14.1 Arbitration. Any dispute or controv rsy among the Parties or their Affiliates
arising under or with respect to this Agreement for clams and counter -claims not exceeding the
aggregate amount of Five Million Dollars ($5,000,000) all be resolved exclusively by final and
binding arbitration in the City of Miami before a panel o three independent arbitrators under the
auspices and pursuant to the rules of the American Ar itration Association ("AAA'). Any
dispute regarding real estate development or constructioi matters shall be governed by the
Complex Construction Arbitration Rules then in effect, and . y dispute regarding other matters
shall be governed by the Commercial Arbitration Rules t en in effect. Unless otherwise
provided in this Agreement, the arbitration hearing will be s heduled so that it is completed
within sixty (60) days from the date of the filing of the arbi ration and a written award is
rendered within forty-five (45) days from the date of such co r pietion. Arbitrators will be
chosen from the AAA Large and Complex Case Panel of Arbitr tors except that none of the
arbitrators shall have performed, directly or indirectly, a material am unt of work for the County,
the City or a Team Affiliate within the five (5) -year period innmedi tely 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 de ermined by arbitration
pursuant to this Section 14.1 shall be given preclusive or collateral estop p 1 effect. The decision
rendered by the arbitrators shall be final and conclusive and binding upon e Parties. Judgment
maybe entered on the arbitrators' award in any court having jurisdiction. ach Party shall bear
its own attorneys' fees and costs relating to the arbitration, but the costs and f es of the panel and
the AAA shall be borne one-third each by the Stadium Developer, the County aid the City.
14.2 Expedited ADR. Disputes or deadlocks among any of the Parties hrising under or
with respect to the Architect Agreement, Construction Management Contract, the a proval of the
70
Design Documents or other Baseball Stadium design approval issues, Public Infrastructure
Approval Process, Construction -related issues, or any other provisions of this Agreement where
Expedited ADR is required (each, an "Expedited ADR Dispute"), shall be submitted to expedited
alternative dispute resolution ("Expedited ADR") under this Section 14.2. The Parties have
mutually agreed to establish a pan 1 ("Panel") of at least three (3) or more arbitrators (with the
lead Panel member to be reache , by mutual agreement) qualified to resolve design and
construction -related contract dispute to be available to resolve Expedited ADR Disputes. The
Parties shall exchange proposed Pane compositions within ten (10) days following the effective
date of this Agreement and agree on �ae 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 Disput�shall be designated as the Person (the "Neutral") to
whom Expedited ADR Disputes are to be • ubmitted for resolution under this Section 142.
The Neutral shall not have the powr or authority to award any damages or require any
payments other than those described in the la t paragraph of this Section 14.2. There shall be no
discovery pennitted with respect to any Expe'dited 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 sucl 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' presentati ins to the Neutral, and to present documents to
the Neutral in support of such Party's position. he Neutral shall have the right to limit the
documents presented to the Neutral to assure a prom t resolution of the issue(s) to be determined
by the Neutral. The Parties who are party to such Xxpedited ADR may have their respective
counsels present at such Expedited ADR, but there sha be no examination or cross-examination
of witnesses otber than as required or permitted by the N� utral.
The Parties shall use Expedited ADR exclusively, t'. ther than litigation or arbitration, as a
means of resolving all Expedited ADR Disputes. The ExpN ited 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,written award is rendered within
twenty (20) days of such completion. The written award byte Neutral shall be the binding,
final determination on the merits of the Expedited ADR D � pute, and shall preclude any
subsequent litigation or arbitration on such merits. The Parties a ee that any disputes that arise
out of such a written award shall be resolved exclusively by Ex edited ADR pursuant to this
Section 14.2, provided that the Parties may institute legal proceeds gs in a court of competent
jurisdiction to enforce judgment upon an Expedited ADR award in ecordance with Applicable
Laws. Each Party shall bear its own attorneys' fees and costs relating o the Expedited ADR, but
the fees and costs of the Neutral shall be boric equally by the Parties to he Expedited ADR.
ARTICLE XV
MISCELLANEOUS
15.1 Notices. Any notice, consent or other communication under th's Agreement shall
be in writing and shall be considered given when delivered in person. or sett by facsimile or
electronic mail (provided that any notice sent by facsimile or electr nuc mail shall
simultaneously be sent personal delivery, overnight courier or certified mail asp vided herein),
71
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, with the copies
indicated, 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 attentof: County Manager
\ 111 NW 151 Street, Suite 2900
\\ Miami, Florida 33128
Attn. George M. Burgess
With a copy to: \ County Attorney
111 NW 1st Street, Suite 2810
Miami, Florida 33128
Attn: Robert A. Cuevas, Jr.
and Geri Bonzon-Keenan
If to the City:
To the attention of: City Manager
444 SW 2❑d Avenue, 10 Floor
Miami, Florida 33130
'Attn: Pedro G. Hemandez
With a copy to: CiV Attorney
444 W 2„d Avenue, 9th Floor
MiarNi, Florida 33130
Attn: IVhe 0. Bru and Olga Ramirez-Seijas
If to the Stadium Developer:
To the attention of: 2267 Dana
rino Boulevard
Miami, Flori a 33056
Attn: David S mson and Derek Jackson
With a copy to: Proskauer Rose P
1585 Broadway
New York, New Y -k 10036
Attn: Wayne Katz
Notwithstanding the foregoing, periodic and ordinary cours notices, deliveries and
communications between the Stadium Developer and the Governm6pt Representatives or the
Project Coordination Team may be given (and shall be considered giv6 when provided) by any
of the means set forth above, and to the address provided by any of he latter parties to the
Stadium Developer from time to time.
72
15.2 Merger 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 tl-iem relating to that subject platter, including the
BSA (but not including the Architect Contract and the Construction Management Contract which
do include certain understandings of the Parties, as specifically set forth in this Agreement).
Except as specifically set forth in this Agreement and the other Stadium Agreements, there shall
be no warranties rbpresentations or other agreements among the Parties or their Affiliates in
comiection with the subiect matter hereof or thereof,
15.3 Amendment, This Agreement may not be amended or modified except in a
writing signed and duly ex cuted by the Parties.
15.4 Binding Effe,4. This Agreement shall be binding upon the Parties and their
respective successors and assikns, subject to the limitations on Transfer stated herein.
15.5 Waiver. �,iver by any Party of any breach of any provision of this Agreement
shall not be considered ar con titute a continuing waiver or a waiver of any other breach of the
same or any other provision of th Agreement. Any waiver must be in writing and signed by all
Parties whose interests are being ived.
15.6 Nonrecourse Liabilitt of Stadium Developer Personnel. Notwithstanding and
prevailing over any contrary provisi\dD
implication in this Agreement and except for their
criminal acts with respect to this Agrnt (i.e., acts which would constitute crimes were they
prosecuted for and convicted of scts), the officers, directors, partners, shareholders,
members, employees and agents of adium Developer, the Team and their Affiliates (the
"Stadium Developer Personnel") shin any way be liable under or with respect to this
Agreement; no deficiency or other mor personal judgment of any kind shall be sought or
entered against any of the Stadium p Personnel with respect to liability under or with
respect to this Agreement; no judgmith -espcet to liability under or with respect to this
Agreement shall give rise to- any rif exe ution or levy against the assets of any of the
Stadium Developer Personnel other the Te m strictly in accordance with the Assurance
Agreement; and the liability of the SDevel er under this Agreement shall be limited to
the assets of the Stadium Developeto any \ntec delivered in connection with this
Agreement, strictly in accordance with the terms osuch guarantee(s). The limitations of
this Section 15.6 shall in no way limit the Counor City's rights as provided in this
Agreement (a) to specific performance of each and provision of this Agreement or in any
other instrument or document executed in comiection wit this Agreement (provided that specific
perfoiznance shall in no event require the partners, membe or shareholders of the Team or their
Affiliates to make additional capital contributions), (b) to r cover damages against the Stadium
Developer for any breaches of this Agreement (provided that collection of damages is subject to
the restrictions of this provision), or (c) to enforce remedies gainst all assets of the Stadium
Developer; nor shall this Section 15.6 in any way limit the ri hts of the County and the City
against the Team udder the Assurance Agreement.
15.7 Non -Recourse Liability of County Personnel. No 'ithstanding and prevailing
over any contrary provision or implication in this Agreement or any other instrument or
73
document executed in connection with this Agreement, except for their criminal acts with respect
to this Agreement (i.e., acts which would constitute crimes were they prosecuted for and
convicted of such acts), no member, elected or appointed official, officer, employee, agent,
independent contractor or consultant of the County ("County Personnel") shall be liable for any
of the County's obligations under this Agreement or any instrument or document executed in
connection with this Agreement. Except for their criminal acts with respect to this Agreement
(i.e., acts which would constitute crimes were they prosecuted for and convicted of such acts), no
County Personnel shall be liable to the Stadium Developer, or any successor in interest to the
Stadium Developer, for any amount which may become due to the Stadium Developer or any
successor in interest to the Stadium Developer, or for any other obligation, under the terms of
this Agreement. The li . itations of this Section 15.7 shall in no way limit the Stadium
Developer's rights as provi • ed in this Agreement (a) to specific performance of each and every
provision of this Agreement �r in any other instrument or document executed in connection with
this Agreement, (b) to recove damages against the County for any breaches of this Agreement
(provided that collection of daprages is subject to the restrictions of this provision), or (c) to
enforce remedies against the Cor4Aty.
15.8 Non -Recourse Liab`ilit y of City Personnel. Notwithstanding and prevailing over
any contrary provision or implicate in this Agreement or in any other instrument or document
executed in connection with this Ag eement, except for their criminal acts with respect to this
Agreement (i.e., acts which would co stitute crimes were they prosecuted for and convicted of
such acts), no mernber, elected or a ointed official, officer, employee, agent, independent
contractor or consultant of the City (" it Personnel") shall be liable for any of the City's
obligations under this Agreement or any instrument or document executed in connection with
this Agreement, Except for their criminal acts with respect to this Agreement (i.e., acts which
would constitute crimes were they prosecut for and convicted of such acts), no City Personnel
shall be liable to the Stadium Developer, or y successor in interest to the Stadium Developer,
for any amount which may become due to the tadium Developer or any successor in interest to
the Stadium Developer, or for any other oblig tion, under the terms of this Agreement. The
limitations of this Section 15.8 shall in no way lr it the Stadium Developer's rights as provided
in this Agreement (a) to specific performance of ch and every provision of this Agreement or
in any other instrument or document executed in c mection with this Agreement, (b) to recover
damages against the City for any breaches of thr Agreement (provided that collection of
damages is subject to the restrictions of this provisi ), or (c) to enforce remedies against the
City.
15.9 No Indirect Damages. In no event shall any art
this Agreement for any special, indirect, incidental, conseqer
damages, in contract, tort or otherwise, whether or not prov l
caused by or resulting from the sole or concurrent negligence
any of its affiliates or related parties. Notwithstanding the fo:
shall not apply to any indemnification for third -party claims a
subject to the limitations in, Article XII. The preceding limi-
claim or argument that a dispute should not be arbitrated.
expiration or earlier termination of this Agreement.
15.10 Assi nment.
74
y be liable under any provision of
tial, exemplary, treble or punitive
ed by statute and whether or not
r intentional acts of such party or
oing, this limitation of liability
va'lable at law or pursuant to, but
ati n shall not be a basis for any
Th provision shall survive the
(a) The Stadium Developer shall not sell, assign, convey, transfer, pledge,
encumber 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
Government Representatives; provided, however, that the Stadium Developer may, without the
prior written consent of the Government Representatives:
(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) the Stadium�eveloper or Team notifies the Government Representatives in
writing concurrently with the pr posed Transfer, which notice shall state the nature of the
Transfer, identify the transferee an provide the County with evidence reasonably satisfactory to
the County that the proposed Trans er has been approved by Major League Baseball, (B) such
transferee executes and delivers to t e Government Representatives its agreement, in form and
substance reasonably satisfactory to the Government Representatives, to assume all of the
obligations of the Stadium Develop under this Agreement and to keep and perform all
provisions of this Agreement, (C) such ransferee or its Affiliate that acquires the Team's Major
League Baseball franchise assumes all o ligations of the Team under the Assurance Agreement,
and (D) such transferee or its Affiliates assume all of the other obligations of the Stadium
Developer and its Affiliates under the other tadium Agreements;
(ii) Transfer any or 11 of its rights hereunder to one or more Affiliates
of the Stadium Developer, provided that any s ch Transfer shall not affect the obligations of the
Team (or it permitted successors or assigns) un r the Assurance Agreement; and
(iii) pledge or collaterall assign any or all of its rights hereunder to
any provider, guarantor or insurer of financing to the Stadium Developer or its Affiliates in
accordance with Section 14.8 of the Operating Agree lent.
(b) The Stadium Developer shall b relieved of its obligations under this
Agreement from and after the date of a Trans r pursuant to Section 15.10(a)(i) or
15, 1 0.(a)(ii) above.
(c) The City and County shall not Trans er this Agreement or any of their
rights hereunder, and the County shall not Transfer its own ship of the Baseball Stadium or
Baseball Stadium Site, without the prior written consent of the \adium. Developer.
(d) Any Transfer or attempted Transfer bParty in violation of this
Section 15,10 shall be void.
15.11 Goverrnllent Cooperation. Within five (5) Business Da s after receipt of written
notice from the Stadium Developer and, subject to any limitations of its authority under
Applicable Laws and subject to the provisions of this Agreement, eachek
overnment Party shall
consent to, execute and deliver to the Stadium Developer any suitable appli ations or evidence of
the Stadium Developer's authority required by any governmental or er body claiming
jurisdiction in connection with any construction which the Stadium Dov per may do in
accordance with this Agreement.
75
15.12 Consent of Parties. Whenever in this Agreement the consent or approval of a
Party is required, such consent or approval:
(a) shall be made in the case of the County by the County Representative on
behalf of the County to the extent this Agreement does not specify otherwise, except for
approvals or consents specifically requiring Board approval or consent under (i) this Agreement,
(ii) any other Stadium Agreement or (iii) pursuant to Applicable Law;
(b) shall made in the case of the City by the City Representative on behalf
of the City to the extent tltJ s Agreement does not specify otherwise, except for approvals or
consents specifically requirin Commission approval or consent under (i) this Agreement, (ii)
any other Stadium Agreement r (iii) pursuant to Applicable Law;
(c) shall not b unreasonably or arbitrarily withheld, conditioned or delayed
unless specifically provided to the ontrary in this Agreement;
(d) shall not be e f�ective unless it is in writing; and
(e) shall apply only the specific actor transaction so approved or consented
to and shall not relieve the other Partie of the obligation of obtaining the consenting Party's
prior written consent or approval to any f\inhis
similar act or transaction.
15.13 Headings. The headings Agreement are included for convenience and
identification only and are in no way ind to describe, interpret, define or limit the scope,
extent or intent of this Agreement or of its provi ions.
15.14 General Interpretive Provisions. enever the context may require, terms used in
this Agreement shall include the singular and plu al forms, and any pronoun shall include the
corresponding masculine and feminine forms. Th term "including", whenever used in any
provision of this Agreement, means including bu without limiting the generality of any
description preceding or succeeding such term. Eac reference to a Person shall include a
reference to such Person's successors and assigns. A 1 references to "Articles", "Sections",
"Schedules" or "Exhibits" shall be references to the Artiel s, Sections, Schedules and Exhibits to
this Agreement, except to the extent that any such ref- ence specifically refers to another
document. Each of the Parties has agreed to the use of the p rticular 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.
15.15 Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such a marmer as to be effective and valid under plicable Laws, but if any
provision of this Agreement is held to be prohibited by or invalid u der Applicable Laws, the
Parties shall, to the extent possible, negotiate a revised provision hick (a) complies with
Applicable Laws, (b) does not alter any of the substantive rights, obliga ions or liabilities of any
party under this Agreement or any other Stadium Agreement, and (c) conf6 s upon the Parties the
benefits intended to be conferred by the invalid provision; and the remain g provisions of this
Agreement, if capable of substantial performance, shall be enforced as if f is Agreement was
entered into without the invalid provision.
Mi
15,16 Absence of Third -Party Beneficiaries. 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 this Agreement to maintain an action pursuant to or based upon this
Agreement.
15.17 Governing Law. This Agreernent and the interpretation of its terms shall be
governed by the laws of the State, withoVt 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 hall lie exclusively in Miami, Florida. In the event
that the County or City enacts an Applicabl Law that amends or alters (or purports to amend or
alter) the terms of this Agreement, the Team ffiliates reserve all rights, and by entering into this
Agreement do not waive any rights, to asse a breach of this Agreement and to contest the
validity, enforceability or applicability of such pplicable Law, including on the basis that such
Applicable Law is discriminatory, retroactive or would serve to amend or alter the terms of this
Agreement.
15.18 Time of Essence. Time is of the ess- cc with respect to the performance of each
of the covenants and obligations contained in this Ag ement.
15.19 Relationship of Parties. No partnership r joint venture is established among the
Parties under this Agreement. Except as expressly pro ided 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 P or to have been authorized to incur
any expense on behalf of any other Party or to act for or to ind any other Party. No Party shall
be liable for any acts, omissions or negligence on the part of ne other Parties or their employees,
officials, agents, independent contractors, licensees and invit S. The Stadium Developer is an
independent contractor of the County and the City.
15,20 Antidiscrimination Clause. In accordance with Ap licable Laws, 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.
15:21 Sovereign Rights. The County and City retain all of neir respective sovereign
prerogatives and rights as a county or city under State law with respec to the planning, design,
construction, development and operation of the Baseball Stadium. It is e ressly understood that
notwithstanding any provisions of this Agreement and the Stadium Agree ents and the County's
and the City's status thereunder;
(a) The County and the City retain all of their soverei prerogatives and
rights and regulatory authority (quasi-judicial or otherwise) as a county or cit 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 ure laws and
regulations whatever nature applicable to the planning, design, construction and de elopment 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 Sam ; and
77
(b) The Cour\ty and the City shall not by virtue of this Agreement or the other
Stadium Agreements be obligat d to grant the other, or the Team, any Team Affiliate, or the
Stadium Developer any approval of applications for building, zoning, planning or development
Colder present or future laws anordinances of whatever nature applicable to the planning,
design, construction, development and/or operation of the Baseball Stadium, the Baseball
Stadium Site, the Public Infrastructu fie, the Other Development or the Parking Facilities.
Notwithstanding and prevailing over'ny contrary provision in this Agreement, any County or
City covenant or obligation that may Ac contained in this Agreement shall not bind the Board,
the County's Planning and Zoning Deliartment, DERM, the Commission or any other County,
City, federal or state department or authd 'ty, committee or agency to grant or leave in effect any
zoning changes, variances, permits, wai crs, contract amendments, or any other approvals that
may be granted, withheld or revoked in th discretion of the County or City or other applicable
goven-nnental agencies in the exercise of itss\police power.
15.22 Force Majeure. If any Party sl all be delayed in the performance of any obligation
hereunder as a result of a Force Majeure, ten the performance of such obligation shall be
extended by the length of such delay. In resp\\nse to and during any delay caused by a Force
Majeure, the Parties shall at all times act di igently and in good faith to bring about the
tennination or removal of the Force Majeure as Voniptly as reasonably possible and any party
seeking an excuse of performance due to such Fo ce Majeure shall work diligently and in good
faith to reduce or eliminate any damage, cost or d ay caused by such Force Majeure. Without
limiting the foregoing, if a Party fails to meet a adline 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)), such subsequent deadline shall be exte\ded by the number ofdays the delay was
attributable to the prior deadline failure, and the Partyg to meet the prior deadline shall not
be relieved of liability for such breach. The Parties that an event of Force Majeure shall
not serve as an excuse to any Party's failure. to deposis as required under Sections 6.2, 6.3,
6.4 and 6.7.
15.23 Major League Baseball Requirements. No ithstanding any other provision of
this Agreement, except for the last sentence in this Sectio , the obligations of the Stadium
Developer under this Agreement shall in all respects be subord ate to the approval requirements
and other Baseball Rules and Regulations as they are applie generally to all Major League
Baseball clubs. The County and the City agree not to seek an in unction or similar relief against
Major League Baseball to enjoin its implementation of the Base all Rules and Regulations. In
the event that any act or omission taken by the Stadium Devel er to comply with Baseball
Rules and Regulations materially affects the rights of the County oar City under this Agreement
or deprives the County or City of the essential benefits of this Agre ent, the Parties will work
in good faith to an -rend the terrns of this Agreement to neutralize the effect. The Stadium
Developer agrees in any event that if compliance by it with Baseball Rules and Regulations
results in a failure of the Stadium Developer to fulfill its obligations ur der this Agreement, the
County and the City may enforce remedies for the Stadium Develope •'s failure to fulfill its
obligations as provided in this Agreement and the other Stadium eements, including
specifically the right to seek an injunction or similar relief against the earn to enforce the
provisions of the Non -Relocation Agreement.
M
15.24 Inspector General and Independent Private Sector Inspector General.
(a) Office of Inspector General. The attention of the Parties is hereby directed
to Section 2-1076 ofthe County Code establishing the Miami -Dade County Office of the
Inspector General, which h s the authority and power to investigate County affairs and review
past, present and proposed unty programs, accounts, projects, contracts and transactions.
(b) hide eu dent Private Sector Inspector General. Pursuant to Board
Resolution No. R-516-96 and dministrative Order 3-20, the County may authorize, retain and
coordinate the services of a. independent private sector inspector general ("IPSIG") for
constriction, capital develop ent, procurement, retail, concession, lease and management
agreements and/or contracts an other agreements exceeding $1 million. The County has, at its
expense, appointed the Inspecto, General as its IPSIG for the Baseball Stadium Project. The
IPSIG may audit, investigate, In itor, oversee, inspect and review the operations, activities and
performance of the Stadium De eloper, the City and the County in connection with project
design and construction matters u der this Agreement. The scope of services performed by the
IPSIG may include, but are not lim'ted to, monitoring and investigating compliance with contract
specifications; project costs; and in estigating and preventing corruption and fraud.
The IPSIG may per" nn its services at all levels of the construction contracting
and procurement process under this Agreement, including but not limited to, project design,
establislnnent of bid specifications, b d submittals, activities of the City, the Stadium Developer
and their officers, agents and employ es, lobbyists, City and County staff and elected officials.
Upon fifteen (15) days' written notice o the City or the Stadium Developer from the IPSIG, the
City or the Stadium Developer shall m ke all requested non-proprietary project -related records
and documents available to the IPSIG fo inspection and copying.
The IPSIG shall have the riht to examine all documents and records in the City's
or Stadium Developer's possession, cult dy or control which, in the IPSIG's reasonable
judgment, pertain to the project design aid
performance of construction matters under this
Agreement, including but not limited to, orin
worksheets; proposals and agreements from\a
d
related correspondence, memoranda, instructio s
bid and contract documents; back -charge docum
trade or volume discounts, insurance proceeds
personnel records; and supporting documentation
I estimate files; Change Order estimate files;
with subcontractors and suppliers; all project -
financial documents, construction documents,
its; documents and records which involve cash,
rebates, or dividends received; payroll and
6 the aforesaid documents and records.
The provisions in this Section shall a ply to the City, the Stadium Developer and
their officers, agents and employees. The City and t e Stadium Developer shall incorporate the
provisions in this Section in all subcontracts execut d by the City or Stadium Developer in
connection with the performance of this Agreement.
Nothing in this Section shall impair any independent rigl the Stadium Developer may grant to
the. County to conduct audit or investigative activities. Th provisions in this Section are neither
intended nor shall they be construed to impose any liabihon the County by the City, the
Stadium Developer or third parties.
79
15.25 Valid Agreement. Each Goverrmient Party agrees for the benefit of the Stadium
Developer that the Stadium Developer shall have the right to collect damages and otherwise
enforce this Agreeu>;uent against such Government Party with respect to any breach of this
Agreement by such Gove lent Party including damages from any third party claims arising
frons a breach of this Agree ent by a Government Party.
15.26 Count App rovals. The County Representative's approval of the Design
Development Documents and e Construction Documents and any other documents pursuant to
this Agreement shall not reliev the Stadium Developer of its obligations under law to file such
plans with any department of th City or airy other goveriunental authority having jurisdiction
over the issuance of building or ther pen -nits and to take such steps as are necessary to obtain
issuance of such permits, The Sta ium Developer acknowledges that any approval given by the
County Represeintative pursuant to this Agreement shall not constitute an opinion or agreement
by the County that the plans are stru turally sufficient or such plans and any other documents are
in compliance with any laws, ordin aces, codes or other applicable regulations, and no such
approval shall impose any liability up n the County.
15.27 kooks and Records, Au it. The Stadium Developer shall keep and maintain all
books, records and documents of all kin s in any way related to the Stadium Developer's rights
and obligations under this Agreement sep rate and identifiable from its other books, records, and
documents. The County shall have the rig t to audit the books of the Stadium Developer relating
to the planning, design, development and c nstruction of the Baseball Stadium. The attention of
the Parties is hereby directed to Section 2-4 1 of the County Code,
15.28 Counte arts. This Agreeme may be executed in any number of counterparts
with the same effect as if all Parties had exec ted the same document. All counterparts shall be
construed together and shall constitute one ins ment,
.M
CITY OF MIAMI, FLORID
By:
Pedro G. Hernandez
City Manager
City of Miami
ATTEST:
By:
City Clerk
Approved as to Ii7surance Requirements:
By:
LeeAnn Brehm, Director
Risk Management
APPROVED AS TO FORM
AND CORRECTNESS:
City Attorney
MIAMI-DADE COUNTY, FLORIDA
George M. Burgess
County Manager
Miami -Dade County
ATTEST:
ME
Clerk of the Board
APPRO ED AS TO FORM
AND LE V AL SUFFICIENCY:
MARLINS STADIUM DEVELOPER, LLC
By:`
Name:
Title:
81
Exhibit List
Exhibit A — Baseball Stadium Sit
Exhibit B — Entire Site
Exhibit C — Permitted Exceptions
Exhibit D — Project Program Statement
Exhibit E — Form of Warranty Deed
Exhibits F- Not Used
Exhibit G —Public Infrastructure Budget and escription of the Public Infrastructure
Exhibit H — Master Project Budget
Exhibit I — Draw Down Schedule for the Stadium roiect
Exhibit 1-1 -- Schedule of Eligible Reimbursable Exp nses
Exhibit J — Procurement Program
Exhibit K — Sources of Funds for the Stadium Project
Exhibit L — Funding Request
Exhibit M —Affidavit
Exhibit N — Preliminary Milestones Schedule
Exhibit 0 — Key Provisions of the Construction Management
21 J_', ARY 2009
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Exhibit C
PERMITTED EXCEPTIONS SCHEDULE
1. The lien of all taxes for the year 008 and thereafter, which are not yet due and payable.
2. Any lien or right to a lien, for ervices, labor or materials heretofore or hereafter
furnished, imposed by law, and not s sown by the Public Records.
3. All matters as set forth on that certain urvey dated February 15, 2008 by Fortin, Leavy,
Skiles, Inc. under Project Number 08011 , Dwg number 2008-020.
4. Easements or claim of easements not shown by the public records.
5. Any adverse ownership claim by the State Florida by right of sovereignty to any
portion of the lands insured hereunder, incl ding submerged, filled and artificially
exposed lands, and lands accreted to such lands.
6.
7.
8.
9.
10.
11.
12,
13,
14.
15.
Riparian and littoral rights.
All matters contained on the Plat of New Orange Bowl ubdivision, as recorded in Plat
Book 153, Page 72 of the Public Records of Miami -Dade ounty, Florida. (As to Plat 1)
Reservations in favor of the State of Florida, as set forth in he deed from Trustee to the
Internal Improvement Fund of the State of Florida, recorde in Deed Book 2465, Page
164 of the Public Records of Miami -Dade County, Florida. (As Plat 1 and 11)
Unity of Title recorded in O.R. Book 17793, Page 1500 of the P\Rdds of Miami -
Dade County, Florida. (As to Plat 1, 2 and 11)
All matters contained on the Plat of Lawrence Estate Land Co's , as recorded
in Plat Book 2, Page 46 of the Public Records of Miami-Dadelorida. (As to
Plat 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13 and 14)
Resolution No. 20762 recorded in Deed Book 3062, Page 508, Pds of Miami -
Dade County, Florida. (As to Plat 5, 6, 10 and 13)
All matters contained on Plat of Montray, as recorded in Plat e 114 of the
Public Records of Miami -Dade County, Florida. (As to Plat 8)
All matters contained on the Plat of Revision of Montray, as rlat Book 8,
Page 1 of the Public Records of Miami -Dade County, Florida. (As to Plat 8)
Resolution recorded in Deed Book 4306, Page 123, Public Records of Miami -Dade
County, Florida. (As to Plat 14)
Plat 10: All of the rights, title and interest, including reversionary interest and right to
possibility of reverter held by the Grantors in and to the subject property as mentioned in
that certain Quit Claim DeV from Vd.C. Tatum, Adele Tatum and Forrest Sullivan to
Estates, Inc., recorded April 25) 195 in Deed Book 4079, Page X36 of the Public
Records of Miami -Dade Cou�ity, Florida. Said Quit Claim Deed appears to be wild
instrument and said status shall\\ e verified by The Fund's Underwriting Department prior
to any conveyance of this parcel
ALL RECORDING INFORMATION REFERS TO THE PUBLIC RECORDS OF
MIAMI -DADS COUNTY, FLORID
CAA — Exhibit D
Project Program Statement
ARK SYSTEMS GENERAL DESCRIPTION
FOODSERVICES and CONCESSIONS
Foodservices and concessions sys ms are designed to facilitate access for all spectators in the ballpark.
Service functions (main kitchen, c3 issary, staff lockers, offices, check-in, vault) for the foodservices
are expected to be located on the se ice and mezzanine levels with cooking kitchens and pantries
dispersed as necessary throughout the stadium to support foodservice delivery.
Concession Stands will be located at all p` blic concourses, distributed to be convenient to all spectators.
Currently 50% of the concession stands ar planned to be `cooking' stands with grease exhaust
provisions. In addition to the concession sta ds, a Taste of Miami Food Court is planned for the Main
Concourse near left field which may also cont in a sports bar. POS locations will be provided at an
average ratio of 1/200 fans throughout the ball prk.
Foodservice operations at the Club Level will incline concession stands with specialty food offerings in
stands with upgraded finishes. A cooking kitchen wi be located at the Club Level to support suites, party
rooms and any catering functions held at Club or Suit Level. Founders Suites and Luxury Suites will
typically include a buffet counter, serving pre -ordered fi cd and beverages provided from the Club Level
Kitchen. Pantries located on the Suite and Club levels wi !support the foodservice operations to the
suites. \
Service Level Specialty Foodservice operations will include two Dugout Lounges and the Batters 'Box
Club. The Batters Box Club will include a kitchen, a dining area with buffet/chefs table, serving stations,
room for snack items, a small bar and a grill line for Batters Box eatholders. The Dugout Lounges will
include a bar area with high -top tables and chairs, a pre -game bu et table and a limited food service
menu during the game for Dugout Club and Field Box seatholders,
SOUND SYSTEM:
Seating Bowl
The ballpark is planned to include a distributed seating bowl loudspeaker ystem. A distributed sound
system configuration locates numerous loudspeaker cabinets around the sating bowl by attaching them
to available building structural elements such as seating deck fascias and th canopy. This style of sound
system is similar in configuration to the sound systems installed at all recent) constructed baseball
facilities (e.g. San Diego, St. Louis, DC, Pittsburgh and Philadelphia, as wella the under -construction
ballparks in New York,)
Main Concourse
A sound system will be provided in the following distinct "zones" of the concourse:
• Sound systems located in the vicinity of concession and novelty areas (areas ere people are
waiting in line)
• Within public and family toilet rooms
Stadium Systems General Description
Page -1
Each of these zones will typically pV
to substitute any other ballpark pro(
where the concourse is not open to
the game begins.
Suites
Dedicated speakers linked to the s(
speakers will always play the same
CAA— Exhibit D
Project Program Statement
the general ballpark PA, but the audio system operator will be able
m as required from controls in the audio control room. in areas
e seating, it is common for the radio play-by-play to be heard once
bowl's sound system will serve exterior suite seating. These
�m as the rest of the seating bowl speakers.
The interior of the suites are to be provide sound via the interior TV set internal speakers. All sound is
received over the suite television speakers. There are a number of 'channels" that are dedicated for in-
house video and audio. Examples of the cha nets would be:
• Event broadcast video with event broadcast audio.
• Event broadcast video with rad
® Event broadcast video with press -box ann`puncer
MECHANICAL. (HVAC)
The main seating bowl shall be conditioned as follows.
The ballpark HVAC system is designed to maintain ate perature 78°F (+I- 3°F) from field level through
seating at Club Level. Cooling of the bowl seating area all be by HVAC loop ducts along each level
supplying air to the seating areas. Exhaust fans along th roof shall relieve the upper bowl of heat. Make
up air shall be provided by the bowl air handlers. The total peak cooling load is estimated to be
approximately 6300 tons for the ballpark based on the preliminary program which includes a three hour
"pull down" period. \
Air Delivery Systems:
Seating Bowl Air Delivery System:
The air delivery system plan for the seating bowl is to use multipi single zone supplyfretum units with
chilled water cooling coils for cooling and dehumidification. Tempe ature control will be provided by
utilizing multiple banks of chilled water cooling coils each with sepa to temperature control valves which
are modulated in sequence to maintain cooling coil discharge tempe ture. Outside air is cooled and
dehumidified through part of the coil bank before mixing with return ai from the seating bowl.
Main and Upper Concourse Delivery system:
The main and upper concourses will be conditioned using chilled water fa coil units, located at
approximately every bay, that can be operated with the roof in the open or osed position. These fan coil
units will generally be located above the concession stands and utilize short ections of supply and return
air ductwork connected to supply registers and return grilles. Discharge air to perature will be maintained
above dew point temperature to prevent condensation formation.
Suite Level Air Delivery Systems:
The Suite Level is completely enclosed and served by blower coils. These units wI provide air
conditioning throughout the enclosed space. All toilet rooms on the Suite levels willle fully air-
conditioned and exhausted. Each suite shall be served by a chilled water fan coil unit with its own
thermostat for comfort control.
Stadium Systems General Description
Page - 2
CAA — Exhibit D
-t Program Statement
Club Level Air Delivery Systems:
The Club Level is open and is "spot coole " by fan coil units above each concession roof and toilet room
roof, All toilet rooms on the Club level vrill b fully air-conditioned and exhausted. Each suite shall be
served by a chilled water fan coil unit with it own thermostat for comfort control.
SECURITY SYSTEM
The security system shall incorporate hardware a d software specifically designed to support multi -
systems, multi -users, multi -tasking point monitorin and system administration and operation. The
systems shall be interfaced to the facility LAN using thernet based technology.
System components shall be provided as necessary and include the following major components:
• Security Server
• PC Workstations with flat panel monitors at prim Security. Command Center, Game Day
Command Center, Event Staff Check-in, Office En rance, Ticket Office windows, Team Store and
other storefront retail areas and Administrative/Ope ations/Security /Concessions Offices.
• Photo Badge/Key Card Printer (Color Laser) and Ca era
• Security Controllers as necessary
• Proximity/Smart Card Readers and Combination Proxi ity/Smart Card Readers with Biometric
Readers
• Card Key/Photo Badges
• Intrusion Detection Devices (Motion and Glass Break)
• Door Status Monitor Zones
• Duress Buttons (Panic Alarms)
• Network Video Recorders (NVR) and Video Archive/Storage
• Video Low Light Color Surveillance Fixed and Pan -Tilt -Zoom ( TZ) Cameras with Dome
Enclosures
• Flat Panel LCD Color Video Monitors mounted in Security Canso for continuous live camera
sequencing and matrix viewing.
• flat Panel (Plasma or LCD) Color Video Monitors mounted in Secu Console for event call-up
and playback.
SCOREBOARD and VIDEO DISPLAYS
The Ballpark Scoreboard and Video Displays will utilize current technology to providIT an enhanced fan
experience. The information, scoring and entertainment elements that are expectedt be part of the
display complement are as follows: \
• Main Display - HD16 Video (HD Ready)
• Ribbon Board - 23 mm Ribbon Board
• Pitcher Board - 23mm Display
• Outfield Board - 23mm Display
• Open Caption - 23mm Display
• Control System: Venus, Vink & Rack System
• HD Video Replay System
• Video Coaching System
Stadium Systems General Description
Page - 3
CAA — Exhibit D
Project Program Statement
ELECTRICAL
Main Utility Service
The ballpark utility service will consist ofthree underground non -dedicated circuit feeders from Florida
Power & Light (FPL) to serve the ballpark's po er needs, The feeders, provided by FPL, will be routed
from the Latin Quarter substation. The Seconds Service being considered is as follows:
FPL will provide all conduits, manholes and 13.2 feeders from the substation to the ballpark property
line. The ballpark contractor shall install manholes nd 5" conduits encased in concrete from property line
to main service switchgear and to all transformer va lts. FPL will furnish all 5" conduits, feeders,
manholes, service transformers and main service sw chgear. The FPL 4801277V service transformers will
be located in four 3 -hour rated transformer vaults. An dditional 4160V service will be provided for the
chiller plant. Secondary feeders will be provided via bukduct provided by the contractor,
Secondary Distribution (600 volt and less)
Secondary distribution will include 4000 amp service switc boards and shall be 480Y/277V indoor
switchboards which will feed the electrical risers. The risers will distribute power to lighting, receptacles,
mechanical equipment and concessionaire loads located on ach of the levels. Secondary distribution will
include all distribution switchboards, step-down transformers nd panel boards as required to serve the
loads in the ballpark.
EMERGENCY POWER SYSTEM
Emergency Power System
The Emergency Power system for the ballpark consists of two genera ppr sets, totaling 3000 kW capacity,
each complete with control panel, batteries, jacket heaters, sound aZation, weather proof enclosure
and skid mounted fuel tank sized for 8 -hours of run time at full capacity.( he generator sets will feed all
emergency and standby loads required by code, and life safety systems. \
LIGHTING SYSTEM
Lighting
All interior areas of the ballpark will be provided with a lighting system that maintai 1s illumination levels
recommended by IES/ASHRAE. All light fixtures will be commercial quality grade figures. The lighting
system will be complete with panel boards, feeders, branch circuits, and controls. Citicuiting will generally
be 277 volts for HID and fluorescent lighting and 120 volt for incandescent and quartz` lighting.
Fluorescent fixtures will generally incorporate electronic energy efficient ballasts, color emperature of
3000K and T8 lamps. Lenses/louvers will be provided where necessary.
Exit signs will be provided along all paths of egress exits. Exit signs shall be no further th n 1 DO feet apart
in any egress corridor or path. An exit sign shall be provided at every egress door and staff ay. 50% of
all metal halide fixtures shall have a quartz re -strike with time delay for emergency egress Iv hting.
Lighting Controls:
All lighting shall be controlled by a network lighting control system with a built-in time clock and cal
overrides. The lighting control system shall be a stand alone low voltage system, which is specifi ally
designed for controlling lighting in a baseball stadium and Interfacing with building automation Sys m to
control designated zones.
Stadium Systems General Description
Page - 4
CAA — Exhibit D
at Program Statement
COMMUNICATIONS INFRASTRUCTU
The communications infrastructure system h;
over a multi -media cabling plant including fi
infrastructure shall be supported by dedicate
infrastructure including cabling and raceways
plant shall be a current product available in thi
bandwidth capabilities and overhead. Racewa
spare physical capacity upon completion of fai
accommodate changes to program.
DATA NETWORK SYSTEM
ill support voice and data applications/systems operated
optics and twisted pair copper, This communications
communication rooms and raceways. Communications
,hall provide longevity to ensure future proofing. Cabling
market, which meets latest standards with enhanced
/ shall be provisioned to allow for a minimum of 20%
;ill . This will require a 30% initial design capacity to
The ballpark will include a complete and fully functional Enterprise Network Switching and Routing
System. The Enterprise Network Switching and Rout!System shall be a converged data network that
provides a single data network backbone connectivity fpr all building systems, applications, tenants, and
users. The data network system is planned to include th following:
• Administrative Data (Computers, Printers, and Scnners)
+ Advertising Panels
9 Building Management Systems
Building Systems Controllers (HVAC and .Lighting)
• Point of Sale
• Security Management System
Y Ticketing System
• Wireless Ticket Scanners
• Wireless POS
• Wireless LAN
• Wireless Public Internet
• Other data communications to be determined
Stadium Systems General Description
Page - 5
CAA Exhibit D
Pr -ect Program Statement
A. Spectator Facilities
Projected Ballpark Capacity of approxim telt' 37,000 spectators
1.00
a. Batter's Box Seats
Premium seating at Field Level, in close proximity to hom plate.
Fully upholstered, operable armchair seats, cupholders,
Seathoiders have access to Batter's Box Lounge.
In -seat service.
Accessible from service level.
1st and 3rd Dugout Club Seats
Premium seating at Field Level, next to 1 st and 3rd base dugouts.
Fully upholstered seat, operable armchair seats, cupholders.
Seatholders have access to seats through a Dugout Lounge at Service vel.
Accessible from service level.
Owner's Box
12 Designated seats located within the Batter's Box section (see features ab e),
Home Plate Reserved
Located in lower bowl, behind the Batter's Box seats and home plate.
Plastic seat and back, operable armchair seats, cupholders.
Field Box Seats
Located in lower bowl, behind dugouts.
Operable armchair seat with upholstered seat pad and plastic back, with cupholder.
1st and 3rd Reserved Seats
Located in lower bowl, on 1 st and 3rd base sides.
Operable armchair seats with plastic seat and back, with cupholders.
Outfield Reserved
Located in outfield of lower bowl.
Plastic seat and back, operable armchair seats with cupholders.
Redirected seating provided as needed.
Fiesta Deck Seats/Bleachers
Located in outfield @ Intermediate deck.
Bench type seating (economical seating).
Party Room @ Field Level
Party Room to be located behind field wall at outfield, with catered party area behind the seats.
(2) Tiers of seating.
Suites Seating
See Suites (See 9.DD below) for breakdown of suite types.
Club Level Seats
Premium seating with prime view of the field.
Operable armchair seats with lightly padded seat and cupholders.
Seatholders have access to Club Lounge.
b.
1
2(19
1. View Level Box Seats
Located at upper deck, below the Gros
Plastic seat and back, operable annchai
Re -directed seating provided, as needed
M. Standing Room Positions
Distributed between the Main and Upper
2.00
a. Women's
Number of plumbing fixtures is based on 2004 FI rida code (at minimum). Code requires 3:2 ratios of women's fixtures to men's.
Each is to be equipped with individual mirrors wis if, full length mirror and diaper changing station,
b. Men's
Number of plumbing fixtures is based on 2004 Florid code (at minimum).
Each is to be equipped with individual mirrors wlshelf, full length mirror and diaper changing station.
C. Street Level Public Toilets:
Provide men's and women's toilet rooms @ street level, pr commercial retail customers' use, Include (4) toilet fixtures and diaper
changing station in both men's and women's. \
seats with cupholders.
these are designated standing room only (SRO) field -viewing positions.
The Main Concourse level SRO's will be in thA form of terraced platforms in Left Field, overlooking the bullpen.
Public Toilet Rooms (a) General Con ourses:
3.00 Batter's Box Toilet Rooms included with Batt r`s Box Loun e SF
a. Women's
Provide premium finishes.
Include diaper changing station.
b. Men's
Provide premium finishes.
Include diaper changing station.
4.00 Dugout Club Toilet Rooms 2,420S
Provide men's and women's toilet rooms @ the Dugout Club lounges at th 1 st and 3rd base side, for these seathoiders and Field
Box seatholders only (2 sets of m/w toilet rooms at each side, one of thos� adjacent to seating). Include diaper changing station in
both men's and women's, Provide premium finishes. \
5.00 Club Level Toilet Rooms \
a. Women's
Number of plumbing fixtures is based on 2004 Florida code (at minimum). Code
Provide premium finishes.
Include diaper changing station.
b. Men's
Number of plumbing fixtures is based on 2004 Florida code (at minimum).
Provide premium finishes.
Include diaper changing station.
6.00 Suite Level Toilet Rooms
a. Women's
Assume 4 toilet rooms, distributed equally around the suite corridor, w/4 water closets per room.
Provide premium finishes.
Include diaper changing station.
b. Men's
Assume 4 toilet rooms, distributed equally around the suite corridor, wl2 water closets, and 2 urinals
exceeds code.
Provide premium finishes.
Include diaper changing station.
3:2 ratios of women's fixtures to men's.
of fixtures exceeds code.
Number of fixtures
7.00 Family Toilet Rooms 560SF
A unisex toilet room Mona water closet,re lavatory, oversized changing table and a side chair.
Distributed throughout the public concours s and at premium levels (6 minimum).
8.00 Suites 42 345SF
a. Luxury Suites
Approximately 14' x 34' each (with some varia'on due to bowl geometry), with premium finishes.
Include seating for 16 (total), in 2 tiered rows fi ad armchairs, wlpadded seats, w/6 seats per row, plus 4 upholstered bar stools at a
high table/drink rail behind the back tier; consid r caster -base chairs on back tier in lieu of fixed chairs.
Lounge area of suite to include back bar wllockab e lower cabinets, bar sink, ice maker, undercounter refrigerator, large concealed
trash container.
Provide small coat closet in each suite.
Provide TV monitors, one at outside seating and one 'thin the suite,
b. Founders Suites
Approximately 18'x 40' each (with some variation due to owl geometry), with higher premium finishes.
Include seating for 20 (total), in 2 tiered roves fixed armchai , w/padded seats, w/ 8 seats per row, plus 4 upholstered bar stools at a
high table/ drink rail behind the back tier, consider caster -ba chairs on back tier in lieu of fixed chairs.
Lounge area of suite to include back bar wAockable lower cab \ets, sink, ice maker, undercounter refrigerator, large concealed
trash container.
Provide small coat closet in each suite.
Provide TV monitors at outside seating and within suite.
c. Super Suite
Include seating for approximately 75 (total), fixed armchairs, w\w1sea
pholstered bar stools at a high table/ drink rail
behind the back tier, consider caster -base chairs on back tier in lieu of
Lounge area of suite to include back bar wAockabie lower cabinets, barker, full-size refrigerator, large concealed trash
container,
Provide coat closet in each suite.
Provide TV monitors at outside seating and within suite,
d. Party Suites
Sold on a game -per -game basis.
Approximately 15' x 36' each (with some variation due to bowl geometr
Include seating for approximately 24 (total), in 3 tiered rows of fixed arma , and cupholders, w/ 6 seats per row, plus 6
upholstered bar stools at a high table/ drink rail behind the back tier.
Lounge area of suite to include back bar w/lockable lower cabinets, bar, an large concealed trash container.
Provide coat closet in each suite.
Provide TV monitors, one at outside seating and one within the suite
Certain party suites shall be adjoining, with double door @ adjoining wall, to allow expandab'14 as needed,
e. Owners Suite
For Team Owner's use, to be located directly behind home plate at suite level.
Include seating for approximately 30 (total).
Lounge area of suite to include small kitchen, bar, counter for catering set-up, Kitchen vMll include a back bar w/lockable cabinets, bar
sink and full size refrigerator and ice maker.
Provide private toilet room and coat closet in the suite.
f. Home GM Box
- This box will be used for Baseball Operations staff.
- Provide suite -like buildout, with 2 tiers of seating (for 4-8 persons), and a lounge in the rear of the suite, with counter for catering set-
up and a center island for guests. Include private toilet, ice maker, lockable cabinets, bar sink and trash ntainer.
g. Party Room at Field Level
- Located in the Outfield, offering view of the field through the field wall.
- Used for group sales, it will include seating for 150 and an open area behind the seats for catering set-up, v�ith ecessary counter
space.
9.00
a.
b.
c.
d.
10.00
a.
b.
Drinkrails shall be designed with glass dacrylic backspiash insert, set 12" (minimum) from front edge of rail.
Provide toilet rooms for men and women t the rear of the parry room, as these seats may not access other concourses, Women's
will include 2 water closets, l lavatory and en's will include 1 water closet, 1 urinal, and 1 lavatory, Both should include diaper
changing table.
Batter's Box Club
Provides access to Batter's Box seats and include the following:
Reception area, w/concierge desk.
Dining area with buffet! chefs table.
Bar, adjacent to the Batter's Box seating area and sep rate from dining area.
Kitchen, to service the dining/buffet service and the in -s at service (see B.3. below).
Wait station, in proximity to the Battefs Box seats.
Women's toilet room (see 4.00 above),
Men's toilet room (see 4.00 above).
Janitor's closet.
Dugout Club Lounges
Located at 1st and 3rd base sides @Service Level, to provides all private lounge with light food & beverage service and restrooms,
accessible to Dugout Club seatholders and Field Box seatholders, or use before, during and after the game.
With up -scale buffet, limited menu during game.
Include bar and a few high -top tables w/chairs.
Each to include TV monitors.
Women's toilet room (see 5.00 above).
Men's toilet room (see 5.00 above).
Club Lounge @ Club Level
Provides circulation and access to Club seats and includes the following:
Feature bar(s), lounge furnishings and TV monitors.
Specialty concession stands (see B 1.b).
Men's and women's restmoms (see A.6).
Owner's Dugout Lounge
This is a lounge for team Owner, located near team dugout,
To include a sitting area, dining area, small kitchen and private toilet room.
Guest Relations Room @ Main Concourse
Centrally located in the concourse, in proximity to first aid room.
Includes officelreception area for 2 staff, w/transaction counter and coiling shutter.
Includes temporary holding space with counter space and shelves (for lost and found items/ o er storage).
Includes small meeting room used for settling ticket disputes and other incidents where privacy i needed.
Provide 2 advance ticket windows off the concourse, with ticket seller's access from within the gu st relations room.
Guest Relations Room @ Upper Concourse
Centrally located in the concourse, in proximityto first aid room.
Includes office/reception area for 2 staff, w/transaction counter and coiling shutter.
Provide one advance ticket window off the concourse, with ticket seller's access from within the guest labons room.
Include storage closet within the room.
Primary First Aid Station
Located at Main Concourse, close to guest relations room and with close access to ambulance pick-up poin
Main room will consist of small waiting area and treatment room w13 beds with privacy curtains, lockable cabi et, counter with double
sink (w1hot and cold water), and full-size refrigerator.
Provide private office for doctor/EMT staff.
Provide unisex toilet room.
4
Provide small storage room,
b. Satellite First Aid Station
Located at Upper Concourse, c
Main room will consist of small
Provide small office for doctor/l
Provide unisex toilet room.
12.00 Ticket Facilities
to guest relations room and with close access to ambulance pick-up point.
ng area and treatment room w/2 beds and lockable medical cabinet.
staff.
a. Ticket Windows
Windows to be provided between the in box office (advanced sales and day -of -game) and those located at other entry gates (day
of game only), Approximately half of thev�indows should be located at main box office, with others distributed at other gates.
Each ticket window to include counter an cabinets underneath, space for ticket terminal and splitter, keyboard, storage for ticket
stock, cash drawer and high padded chair.
Provide bullet -resistant glass with shades o blinds at each window, and canopy over exterior- facing windows,
Ticket signage at box office should be easily'dentifiable from street.
Provide turnstiles, @ a minimum ratio of 1:1 0 spectators, to be fitted with scannable devices.
b. Ticket Office
Office for ticket operations staff will be located a 'acent to main ticket windows, including the following spaces:
Director of Ticketing Office.
Assistant Director's Workstation.
Administrative Assistant/Receptionist.
Workstations for Advanced Sales Supervisor, Day of ame Sales Supervisor, Ticket Office Coordinators (2) and Senior Account
Clerk,
Ticket Processing Work Area,
2 -Compartment Vault.
Storage.
Men's/ Women's Locker Rooms.
Men's/ Women's Toilet Rooms.
Kitchenette.
- Circulation.
13.00 Entertainment Features
a. Kids' Zone
6
@ Main Concourse level in outfield level next to Fiesta Seats.
To include retail component, concession stand and interactive features.
b. Marlin Feature
@ Main Concourse level.
To consist of a large scale, animatronic "jumping marlin" in a tank, used as a home run feature.
C. Support Space for Marlin Feature
- Filtration and/or other equipment for the Marlin feature.
d, Outfield Swimming Pool and Beach
Create similar swimming pool feature Marlins currently have at Dolphin Stadium, b t updated and possibly somewhat larger,
Create sand beach area around the swimming pool.
This will be used as a group sales area, in association with the outfield party room.
B. Food Service & Retail e
1.00 Concession Stands
a, General Concourses (Main and Upper)
Concession stands will be located at all public concourses, distributed to be convenient to all
Assume that 50% of all stands will include grease exhaust equipment.
5
- One of the stands, near Kids' Zone, may be designated as a "kids stand", with family-oriented menu and special design features and
graphics.
b, Club Lounge Concessions
Specialty food offerings in stands with upgraded finishes.
Assume that 50% of all stands will include grease exhaust equipment.
C. Taste of Miami Fookcourt& Sports Bar
The Marlins wish to i' clb e a food court at the Main Concourse, which includes a variety of concessions as well as a potential Sports
Bar.
d. Portables
Portable concessions Will be I ated on both the lower and upper concourses, to supplement permanent concessions stands.
Provide electrical outlets at deAnated locations in those concourses.
2.00 Vendor Commissaries
a. @ General Concourses (Main All
Provide (2) vendor commissaries at
The commissaries serve as cash -in
b. @ Club Level
Provide (1) vendor commissary.
3.00 Kitchens
a. Main Kitchen \
Main kitchen, located at Field Level, for prepd\.ngfood served in suites and clubs.
b. Batter's Box Kitchen
Located with Batter's Box lounge, to support fce there as well as in -seat service to Batters Box seats.
Location/configuration should allow forin-seatto have direct path to BB seats without crossing BBL dining room.
A cooking kitchen, requiring grease exhaust.
4.00 Catering Pantries
Pantries should be distributed as follows:l @ Field Le I next to Party Room,1 @ Suite Level and 1 @ Club Level.
Pantries will be non -cooking (warming equipment only)
5.00 Main Comrnissary
Upper)
ach public concourse, located to allow equal distribution to the seating bowl.
qd restocking stations for hawkers/ vendors. Provide shelving units and walk-in refrigeration.
Located at Service Level, close to loading docks.
Provides warehousing and storage space for food service in
storage pallet areas and shelving units.
park, including refrigerated/frozen storage walk-in units, and dry
6.00 Food Service Staff Facilities
a. Entry/ Check-in Area
- Provide single entry point for seasonal staff, located near other conces ionaire facilities
This area will include check-in terminals, wall space for employee postin s.
b. Laundry) Uniform Distribution
Locate near other concession facilities, closest to check-in area.
Provide transaction counter and storage shelves/ hanging rods, sewing/embr (dl
1 residential washer, 1 commercial washer and 1 commercial dryer, \
C. Food Service Staff Locker Room — Men
Locate near other concession facilities, close to check-in area.
Include toilet room within the locker room, with 2 water closets, 3 urinals and 3 IE
A. Food Service Staff Locker Room — Women
Locate near other concession facilities, close to check-in area.
Include toilet room within the locker room, with 5 water closets, 3 lavatories.
e. Food Service Cashier Room
Locate next to concessions administrative offices and vault or near commissary.
6
station, sorting table, pressing area and space for
7.00 Retail Facilities 11 200SI
a. Main Retail Store
This is the main retail store for the ballpark an will have regular, non -game day hours of operation to serve tour groups and regular
customers.
It should have good exposure, with maximum gla frontage, and easy access
Includes stock space, unisex toilet and manager's ice.
Include a ticket window inside team store to allow tic:ssume
from that one location.
b. Satellite Retail Store
This is a walk-in store that sells team merchandise, ellite operation to the main team store.
It should be accessible from within the ballpark only e entrance).
c. Street -front Retail Shops
Provide up to 4 specialty shops at street -levet entry a
They should be contiguous, with connecting doors.
d. Novelty Stands
Provide walk-up novelty stands to supplement other es in the building
Each stand should have maximized frontage and thelose up and secure the stand at close of business.
e. Portable Novelty Stands
Provide portable novelty stands to be distributed at cs, ¢ssume that electrical outlet is required at each,
C. Media Facilities
1,00 Press Box Facil
Includes Writing Press and Broadcast Press to be located on one or o levels.
a, Writing Press Area
Approximately 110 stations for writers, in a 3 -tiered arrangement,
Counters @ chair height, with network/intemet access, chairs and TV nitors viewable from all stations.
Counters, w/tubby storage and lockable lower cabinets, should be locat� in rear of press box, for distributing game notes, stats,
press releases, etc.
75% of the stations are for writing press, 25% for electronic media.
b. Media Relations Staff Room
To be used by Media Relations Staff during game, located adjacent to writin ress area.
Includes work counters, shelving, cabinets, a workstation for PR staff and a Iib ry for media guides,
C. Media Work Room
This room is used by writers, as a place to write and file their stories after the ga e,
Located next to media dining area, at press box level.
Includes counters/work stations and chairs along the wall with outlets, Also include bank of tubby lockers along one wall.
d. Press Dining/ Lounge
Capacity of 40 to 5D, at primarily 4-seatertables, with chairs and a buffettsteam table.
Include counter space w/electrical outlets, and beverage cooler.
No kitchen, food will be brought in,
e. Press Toilet Room — Men
Toilet room provided for writers, near writing press area.
Includes 3 water closets, 4 urinals and 3 lavatories w/shelf and mirror.
Include audio feed.
f. Press Toilet Room — Women
Toilet room provided for writers, near writing press area.
Includes 3 water closets, and 2 lavatories w/shelf and mirror.
Include audio feed,
7
2.00
a. Home Radio Booths
For home English radio and home Spanish radio.
With counter, closure system that allow booth to be open during game, with no view obstruction.
Elevated platform at rear of booth, for pro user,
Home radio will be next to home TV,
Radio/ Auxiliary Radio Booths
For visiting radio and auxiliary radio,
With counter, closure system that allows booth t\ope
during game, with no view obstruction.
Elevated platform at rear of booth, for producer.
Networld Auxiliary Broadcast Booths
For network and auxiliary TV.
With counter, closure system that allows booth to\dudnig
me, with no view obstruction,
Elevated platform at rear of booth, for producer.
TV Broadcast Booths
For home and visiting TV.
With counter, closure system that allows booth to be openpe, with no view obstruction.
Elevated platform at rear of booth, for producer.
b,
C.
d.
eve
Ceiling of each booth should be open to structure or lay -in ceiling voth spended pipe grid installed, to allow clips for spot lighting,
Install pull-down shade at front home booth, to provide anti -glare back ound.
e. TV Broadcast Executives Booth
A private box for TV broadcast executives' use, located behind or adjacent to he home TV booth, or included as part of luxury suites.
The finishes and furnishings of this booth should be similar to a suite.
Includes TV manitor(s), kitchenette casework, bar sink, ice maker/bin and under- counter refrigerator.
f. Operations Staff Booth
Located at Press Level.
Should be fully wired for use as auxiliary broadcast booth, if needed.
g. Visiting GM Box
For visiting GM, located at Press Level, at end of row of other broadcast booths.
Should accommodate 4 persons, in field -view seats with writing surface,
h. Scoreboard) PAI Music Control Room
Requires field view.
Will contain customized consoles and equipment, detail to be provided by technical consultant wJ input from Marlins' in -game
entertainment production staff,
Will include audio/ PA/ Music equipment and staff.
Includes rack and server room.
I. In -game Entertainment Production Offices
Offices for the In -game Entertainment production group, located across corridor from the control room.
Assume 4 offices. Prefer that offices are separated with glass partitions.
j. Tape Vault
Locate tape vault across corridor from control room.
k. Media Toilet Room - Men
Toilet room provided for broadcasters, near booths.
Includes 1 water closet,) urinal and 1 lavatory w/shelf and mirror
Include audio feed,
I. Media Toilet Room - Women
- Toilet room provided for broadcasters, near booths,
Includes 2 water closets and 1 lavatory wlshelf and mirror,
Include audio feed.
8
3,00 Media Facilities (na, Fl6ld Level)
a. Press Conference Room
Flat floor space, located in closproximity to the Marlins clubhouse and to Batter's Box Lounge if possible.
To include (portable) risers at r pt of room, to accommodate interviewee and platform at back of room, for TV cameras.
Include a built-in high quality PAsystem, full wiring for media hookups, TV monitors in every comer.
Should not be located near a laun�ry or other "noisy" room.
Provide pipe frame at ceiling height ear front, to hang lighting,
b. Press Conference Room Storage
Within or adjacent to Press conferenc room.
To store temporary risers, tables/ chairs and other equipment.
C. Green Screen Room
Located near the Bafter's'Box Lounge.
For one-on-one interviews.
Fully wired for media hookups.
d. Toilet Rooms for Media
Provide toilet rooms for men and women, near
Each to include one water closet, one lavatory.
4.00 TV Truck Parking Area
Conference Room.
a. Crew Room
Break area for TV production crews, located adjacent to k (e TV truck dock.
Include table and chairs for 12 to 15, TV, countertop with silk, and refrigerator.
b. Crew Toilet \\
Unisex toilet room near the crew room, with a water closet and I vatory.
C. Storage Room
Include lockable cages for crews to store their equipment
Located close to crew room,
d. AN Entry Hub
Entry point for broadcast truck cabling, located adjacent to TV truck park g, with direct access into space from outside,
e. TV Truck Parking Area
- Protected and secured dock space for (4) expandable -type, HD, network Fks
- Should be separate from the service and food service loading area.
- Allow space for 2 additional trucks at the street.
f. ENO/ Satellite Trucks Parking (exterior)
- On-site parking for local TV vans and satellite uplink trucks, in the vicinity of the
- Up to (10) trucks to be accommodated.
5.00 Camera! Still Photo Facilities
TV Trucks.
a. Still Photo Workroom
Located near home plate at Service Level, to allow ready access from the camera pits
Provide counters along the wall, to accommodate 8 photographers at one time.
b. Still Photo[ Camera Pits
Camera pits will be shared between still photographers and TV cameras.
Provide space at the two outside dugout camera pits for 15 still photographers (total) + TV camera
Robotic or handheld cameras will be used for inside dugout camera positions.
Provide broadcast cabling and multiple duplex outlets to each pit.
C. Camera Positions
Provide TV camera positions as follows, at the lower bowl (according to MLB current guidelines):
4 cameras @ centertield.
1 camera down 1 st base @ foul pole.
1 camera down 3rd base @ foul pole.
1 robotic camera @ low home position,
9
D. Clubhouse FaciCties
1.00 Home Clubhouse 17.58
a. Ante -room
Located close to clubhou p entry, by guard station.
This is a waiting room for player agents, endorsement reps, etc., who are not allowed in the locker room.
b. Player Locker Room
To include 40 lockers, each w h chair. Provide electrical outlet at each locker.
To include wall/ceiling mounte TVs and distributed sound system.
C. Player Grooming Area
Located adjacent to player lackey Qom, and includes toilets, showers and drying area, with the following provisions:
Shower room with 10 wall mountedower heads and adjacent drying area,
4 water closets, 6 urinals, and vanity unter with 8 lavatories, shelf & full-length mirror wloutlets.
- Storage closet for grooming supplies.
d. Player Loungel Kitchen
- Located in close proximity to player locker Qom, to include dining area and open style service kitchen with following provisions:
Dining area for 24 @ 4 -seater tables and corlter along wall equipped with self -serve beverage equipment, and under -counter
cabinets,
- Service kitchen to include commercial stove with xhaust hood, dishwasher, refrigerator, freezer, work counter w/2 -compartment
sink, storage cabinets and other equipment.
- Pantry within the kitchen,
e. Manager's Office! Dressing Room
- Includes office for Manager with adjoining, private dressig area.
- Dressing room includes a shower, water closet, lavatory a d locker w/chair. Provide outlet at locker.
f. Coaches' Locker/ Grooming Area
Includes lockers and chairs. Provide outlet at each locker.
Grooming area includes 2 showers, 2 water closets, 2 urina\hydrotherapy,
er w/3 lavatories, full mirror and shelf w/outlets,
g. Coaches' Meeting Room
Private meeting room for coaching staff, not open to media.
To include conference table, with marker board at one wall.
Located near Coaches' locker room and Managers office.
h. Training Room
Locate central to the Trainers and Team Doctors, adjacent tIncludes treatment tables w/built-in cabinets and taping tablt wlsink, lockable cabinets and electrical outlets,
located at one end of the room. \\
Other and of room should be open area for stretching, to include electrical outlets r powered equipment.
No media access,
I. Training Staff Office
Locate adjacent to Training Room, with glass wall that allows full view into that room a into Hydrotherapy room.
Head Trainer's Office,
Assistant Trainer's Office,
j. Hydrotherapy Area
Enclosed room, for moisture and humidity control, located directly adjacent to training room.
Includes whirlpools, a Swim X pool (or similar), quiet ice machine and a sauna,
Windows between hydrotherapy room and training room, to allow monitoring by training staff.
k. Training Storage
Secured storage room w/built-in shelves, located near training room.
I. Doctors Office/ Exam Room
Locate near Training Office.
10
Includes a treatment table, chi practic exam table, equipment cabinet and work counter wl upper and lower cabinets, sink and work
space for Team Doctor,
M, Weight Training Area
Locate in close proximity to training om, accessible from within the clubhouse and also from the service tunnel.
Contains weight training and cardio e �ipment, wlrubber floor mats under equipment and full-length mirror.
Include built-in sound system, ceiling fail TV's in each corner.
Includes office for Strength Coach and se�\1into
torage room.
n. Interview Room
Fully wired for media hookups,
o. Equipment Manager's Office
- Locate at clubhouse entry, with direct viewker room.
p. Equipment Storage Room
- Locate near Equipment Manager's office.
Storage of bats, balls, uniforms and other gear.
- Located within clubhouse but with access from service tunnel, for direct loadinglunloading of equipment.
High ceiling clearance.
Includes long rows of shelves down center and sides of r om, hanging bars for uniforms.
Area shown includes lockable rooms for ball storage and b t storage (climate controlled).
q. Luggage Room
Located off equipment room and adjacent to loading/ unioadi area.
r. Laundry Room
To service home clubhouse only.
Includes washers and dryers, a residential-type washer, a double ash basin, large hanging rack, lint filter, folding counter and
supply cabinet.
Install equipment on raised slab, for easier loading/ unloading, with drainage trough behind washers.
S. Video Coaching Room
For video production and coaching, preferably located within or close to dugout tunnel and batting cage,
Include counters wl space for video monitors and overhead cabinets for pe storage.
Workstation for Video Coordinator.
Include lockable storage cabinets for tape and equipment storage.
t. Batboys' Locker Room
Provide (8) lockers @ 12" wide each, located near the equipment room.
2.00 Home Family Louncie 120051
Locate in vicinity of clubhouse but not adjacent to it, and in proximity to player pa king.
Shall include lounge area w(1V, a nursery (semi-private area), play area for small hildren at other of the room and private toilet
rooms for men and women (one water closet in each), with diaper changing station ' each.
Lounge to Include TVs, lounge furniture, bank of cubby lockers, kitchenette with sink, abinets, refrigerator, microwave, and counter
for catering set-up,
3.00 X-ray Room 18081
Locate between home and visitor clubhouse, off service corridor.
4.00 Home Du out & Du out Tunnel 4 80051
a. Home Dugout
With front and back bench.
Back bench should allow full view of outfield.
b. Dugout Tunnel
This is the area connecting the clubhouse to the dugout.
Includes a field toilet with water closet and lavatory.
C. Batting Tunnels
Includes (2) configuous cages @ 18'x 85' each, with pitching mounds.
To be for use by home team only, located in close proximity to the dugout.
5,00 Visitor Clubhouse � 8.349SF
a. Player Locker Room
To include 40 lockers each with ch i , Provide electrical outlet at each locker.
To include wall/ceiling mounted TVs distributed distributed sound system.
b, Player Grooming Area �.
Located adjacent to player locker room, ad includes toilets, showers and drying area, with the following provisions:
Shower room with 10 wall mounted shower`heads and adjacent drying area.
4 water closets, 4 urinals, and vanity counterrith 8 lavatories, shelf full-length mirror w/outlets.
Storage closet for grooming supplies.
C. Player Lounge/ Kitchen
Located in close proximity to player locker room, t4clude dining area and open style service kitchen with following provisions:
Dining area with 4 -seater tables and counter along w�Il equipped with self -serve beverage equipment, and under -counter cabinets.
Service kitchen to include commercial stove with exha st hood, dishwasher, refrigerator, freezer, work counter w/2 -compartment
sink, storage cabinets and other equipment.
Pantry within the kitchen, (included).
d. Manager's Office/ Dressing Room
Includes office for Manager with adjoining, private dressing a a.
Dressing room includes a shower, water closet, and lavatory a d locker with chair.
Provide outlet at locker.
e. Coaches' Locker/ Grooming Area
Includes 10 lockers and chairs. Include outlet at each locker.
Grooming area includes 2 showers,1 water closet, 2 urinals and vani counter w12 lavatories, full mirror and shelf w/outlets,
I. Training Room
Includes (3) treatment tables, work counter and a workstation with compu r hook-up.
Provide a wet area adjacent to training room, with 2 whirlpools, sink and ice machine, separated from the treatment area, and a glass
window allowing view into whirlpools from the treatment area.
Provide sloped floor and floor drains to keep water from seeping from wet area nto treatment area,
g. Training Staff Office
Located adjacent to Training Room, with glass wall that allows full view into that ro and into Hydrotherapy room.
h. Weight Room
Located in close proximity to Visiting Clubhouse.
Provide entry from within clubhouse and also from service corridor.
Contains weight training and cardio equipment, w/rubber floor mats under equipment and ull-length mirror.
Include built-in sound system, ceiling fan, TV.
I. Visiting Clubhouse Manager's Office
Locate at clubhouse entry, with direct view into locker room,
j. Equipment Storage Room
Located within clubhouse but with access from service tunnel, with double doors, for directloadin lunlos
as possible). \
k. Luggage Room
Located off equipment room and adjacent to loading/ unloading area.
1. Laundry Room
Includes washers and dryers, a residential -type washer, a slop sink, large hanging rack, lint filter, folding
Install equipment on raised slab, for easier loading/ unloading, with a drainage trough behind washers,
6.00 Visitors Dugout & Dugout Tunnel
a, Visitors Dugout
Same design as home dugout,
b. Dugout Tunnel
This is the area connecting the clubhouse to the dugout,
12
of equipment (as much
and supply cabinet.
2005
Includes a field toilet with water closet and
C. Batting Tunnels
Includes 1 cage @ 18'x 85'.
7.00 Auxiliary Locker Rooms
a. Auxiliary Clubhouse
Locate near Visiting Clubhouse, \.
Will be used by In Game Entertainment during events'i,a. concert talent, Mermaids, Manatees, etc.).
Sub dividable locker room, for use by one large group or two smaller groups of both genders.
To include a total of (50)12" wide lockers, (6) shower he ds, (4) water closets, (4) urinals, (6) lavatories w/mirrors and shelves
w/outlets.
b. Mascot Dressing Room
Located at Service Level, away from player locker rooms.
Includes desk, wardrobe closet, dressing area, shower, water to
C. Star Dressing/ Women's Umpires Room
- Will serve as female umpires changing room, when necessary.
- Includes (2) 42" lockers, shower, water closet and vanity counter
8.00
a.
b.
9.00
vanity counter with lavatory and mirror.
lavatory and mirror,
Umpires should have a separate field entry from players.
Men's Locker Room
Includes locker area and grooming area.
Locker area to include (6) lockers @ 42" w.
Grooming area to include (3) shower stalls, a water closet, (2) urinals and vanity counter w/ (2) lavatories, mirror, shelf and outlets.
Umpires' Lounge
Locate adjacent to the Men's locker room and Star Dressing (women's locke room).
Includes lounge furniture, TV, exercise equipment and kitchenette with refrige for and counter with sink and cabinets.
Home and Visitors bullpens will each consist of space for 2 pitchers and 2
a covered player bench or chairs for up to 8 pitchers and a field toilet.
Playing surface to be artificial turf.
to work out, with regulation clay pitching mounds,
E. Service and Operations Facilities
1.00 Event Staff Facilities 3,625,1
Back of house facilities for event staff including ushers, security, ticket takers and custoA r service staff.
a. Employee Entryl Check-in/ Break Area
Common space that serves as check-in area before game, with check-in terminals.
Provide some tables at one end of the room, with counter and cabinet and microwave, and s ace for 3 vending machines, to serve
as break area.
Allow queuing space at uniform distribution counter, adjacent to this check-in area,
b. Laundry/ Uniform Distribution
This room will be used to launder, store and distribute event staff uniforms.
Provide transaction counter between this room and the check-in area.
Includes 1-2 commercial washers and dryers, storage shelves, hanging rods and a countertop for fol ing laundry.
C. Men's Locker/ Toilet Room
Provides changing room and toilet facilities for approximately 250 male employees.
Includes 12" wide, 3' -high lockers and changing bench.
Toilet room should be connected to locker room and include 2 water closets, 3 urinals and 3 lavatories.
d. Women's Locker/ Toilet Room
Provides changing room and toilet facilities for approximately 150 female employees.
Includes 12" wide,' -high lockers and changing bench.
13
Toilet room should be connected to locker room and include 4 water closets and 3 lavatories.
e, Supervisors' Office
Provide secured workroom for event supervisors, located off the common check-in area.
Includes workstations for 8 supervisors;
2.00 Ballpark Operations Office
Stadium Operations offices should be lod'@t�
spaces shall be included:
Office for Sr,VP, Stadium Operations,
Office for Director, Stadium Operations.
Office for Director of Security,
Office for Director of Sales,
Office for Director of Building Engineering,
Managers' Offices - for Managers of Food &
at Service Level, with ready access to public areas of the ballpark. The following
Customer Service, Game Services, Other Events, Maintenance and Parking,
• Supervisors' Workstations - for Supervisors of Engine nr
Workstation for Assistant to Director of Building Enginer
• Administrative Ass't, Workstations - for Building & Opera
Other Offices/ Workstations (for Interns, other support),
Conference Room for (10).
Kitchenette.
Toilet Rooms,
• Suppliest Copy Room,
3.00 Ballpark Maintenance
Guest Services.
I and Maintenance,
is and Events/ Customer Service.
a. Combined Maintenance Shop
This will be a common shop area for all building maintenance operaN %ad
including carpentry, mechanical, electrical, plumbers and
paint shop.
Located at service level, directly off service tunnel, with overhead door man -door.
Each department will need to be secured/ gated, with appropriate build-ou , including counters and other equipment.
b, Shop Locker Room - Men
Locker room for all trades' use, located near Maintenance Shop,
To include approximately (10) full -height, 18" wide lockers, one shower,/ water lose
C. Shop Locker Room -Women
Shop locker room for female staff, located near Maintenance Shop.
To include approximately (3) full -height, 18" wide lockers, one shower, 1 water close
d, Shop Staff Break Room
Break area for all trades' use, located adjacent to Maintenance Shop, with connecting
To include tables and chairs, refrigerator, counter with sink, coffee machine and micrc
4.00 Cleaning/ Janitorial
a. Cleaning Crew Check-in/ Office
Check-in area for post -game clean-up crews,
Includes two offices and reception area.
Includes space for approximately (40) lockers, 12" wide, 3 -tiered.
b, Cleaning Supply Room
Provide lockable room to store bulk paper goods and cleaning products for janitorial use, whi\shod belocated near the loading
dock.
Include shelving units.
C. Stadium Maintenance Rooms
Storage space for cleaning equipment (sweepers, brooms, etc.) and supplies, located at public concourse I eels, wldouble door
access off concourse, Preferred location is next to freight elevator, away from public view, as this is a sloppy area.
Include space for tenant machine, with slop sink and floor drain.
2 urinals and 2 lavatories.
1 lavatory.
3.4
d. Housekeepjng-Rooms
Housekeeping supoltes and equipment storage, located at club and suite levels.
Include slop jnk with hqt and cold water,
e, Janitor`s Closets
Located betwee, men's ar� women's public toilet rooms at public concourse levels,
Include slop sink lith hot an�old water, mop hooks and shelving.
f. Trash Rooml Trash Chute
To be used as a holding area for �,�sh that accumulates during the game, located in stacked position at main and upper concourses
(aligned with trash compactor at seN.'ce level).
Will include the trash chute access.
5.00 Groundskee in Facilities 7 260SF
a. Equipment and Bin Storage Area
The main storage and equipment area for gro � ndskeeping operation, to include space to store and maneuver tractors and other
grounds keeping vehicles.
Include space for 4 infield material bins and fertili r pump unit.
Requires direct access to the field through overhead door
Includes crew holding area adjacent to the field (for infield crews).
Includes residential washer and dryer,
b, Head Groundskeeper's Office
Private office, located off equipment area.
C. Grounds Crew Locker Room • Men
Includes (12)18" wide lockers, (2) showers, (2) water closets, ) urinals and (3) lavatories.
d. Grounds Crew Locker Room • Women
Includes (4)18" wide lockers, a shower, water closet and lavatory,
e. Crew Break Room
Meeting/ lounge space for grounds crew, centrally located to other gro ndskeeping facilities,
Include lounge fumiture, table/chairs, and kitchenette with countertop, c binet, sink, refrigerator and microwave.
f. Chemical Storage Room
Secured room with fire -rated wells, to contain pesticides and/or other chem als used in groundskeeping. Will be located within
equipment storage area.
g. Batting Cages Storage
Designated space off field entry, to store portable cages.
h. Infield Material Storage (@ 1st or 3rd base area)
Designated space for storing materials near infield. Located off a field entry tunnel, f easy access to infield.
1. Grounds Storage
Designated storage space for grounds crew outside ballpark.
6,00 Truck and Trash Dock 4 810SF
a. Loading Dock
Includes 2 bays for general deliveries and 2 dedicated bays for food service deliveries, all with\fcor
Locate near food service commissary, with food service dock spaces being closest to commiss
Truck parking area should be secured space but allow for ventilation of exhaust fumes,
b. Receiving Dock Office
Secured office with a window, to oversee activities at the service dock and control entry.
Locate near entry to the dock, to allow full view of dock entry.
C. Trash Compactor
Provide space for (2) trash compactors in an air-conditioned enclosure, with space and head clruck pick-up.
Provide overhead door,
(2) Trash chutes are desired, ideally located at opposite sides of the building. Chutes should tempster/compactor.
1s
d. Recycling Room
Provide space for 3 or more r �yclilng bins (plastic, aluminum, paper, other?) in an air-conditioned enclosure next to trash dock, Stith
adequate space for storing bagrecyclables (during game) and for sorting them (post-game).
Also provide in this area a designatgd area for a cardboard baler and for storing palleted cardboard bales.
Provide overhead door to the loading, ock platform, to allow direct loading onto trucks from the bins. Double door off service corridor
is satisfactory.
e. Toilet Room
Provide unisex toilet room near the dock o "ce.
7.00 Storage Areas 13 50DSF
a. Stadium Vehicle Storage
Space to store and maneuver vehicles used for ball ark operations and maintenance, i.e. golf carts, forklifts, etc. This does not
include groundskeeping vehicles, which are stored in hegroundskeeping area.
b. General Storage
Secured storage at Service Level.
Includes storage of surplus stock for use in building mainte ance.
Provide overhead door and double man-door, off service tuA I. Located near loading dock if possible.
Include shelving units.
C. Storage for Archives
Provide double door, off service tunnel,
Include shelving units.
d. Promotions Merchandise Warehouse
Requires high ceiling clearance.
Provide shelving, for palletized storage.
Locate close to loading dock,
Overhead door with man-door off service tunnel.
e. Promotions Storage
Provide secured space at mezzanine for promotions storage,
f. Retail Warehouse
Provide warehouse space for retail operations within the stadium, located at Service L vel, close to loading dock.
Warehouse will include office for manager, assistant manager and warehouse manager
Provide ventilation, air conditioning and shelving units.
g. Post Season Storage
Designated storage area for items no longer required during off-season,
8.00 Building Security 2,4003F
a. Security Office
It is expected that Ballpark Security and the Police Department will work in tandem on game days, 'th Police running their command
out of these offices at those times. These offices will be staffed by Ballpark Security personnel. The Ilowing spaces are an estimate
of requirements, subject to review by the Police Department. Location should allow for easy, direct a ass to emergency vehicle
parking area.
General office area, with desk and 2-3 waiting chairs at front of office,
Meeting/ Interview room, with conference table and seating for 8 —10.
Holding calls @ approximately 5'x 5' each, with CMU walls, lockable metal fence/door, bench seating and to per-proof light fixture.
Break area, with counter and sink, upper/lower cabinets, refrigerator and microwave. Bank of cubby-type lockers�hhalll be located in
this area.
Storage/ Radio Room, to store and charge 2-way radios, and for storing other security items, Le. rain gear, coneslights, etc.
Unisex toilet room,
Location of security office should not be close to clubhouses or to media conference room, Should be close to one of the building
secondary exits.
16
b. Building Command Center `k
To serve as the 24 hr. secured entry to the builNing.
Locate near loading dock, adjacent to security office, with connecting door (card accessed).
To include monitoring systems for surveillance, security, PA, fire and other life safety and other engineered systems in the building.
C. Security Command Post
Located at Press Level or other elevated position thin
nest" view of the crowd.
Provide space for approximately 4 persons plus sure ill
Provide one-way glass in this space.
9.00 Mechanical/Electrical/Plumbing Systems
Mechanical, electrical and other engineered systems ec
Incorporate (4) intermediate distribution frame rooms at
video, voice distribution, WI -FI, throughout the building
the bowl, this booth allows Security and Operations authorities a "crovfs
F. Circulation
1.00 Service Tunnel
- Provides common vehicular and pedestrian circulation at the
clear corridor throughout, avoiding sharp 90 degree turns wh
2.00
3.00
4.00
monitors,
mt in the building.
level (one in each quadrant or near each gate), for distribution of fiber,
led in s,f. shown).
e Level Tor service vehicles and personnel. Provide continuous
possible.
\ 88.000S
This is the primary circulation corridor around the seating bowl at Mai
movement, allowing for queuing at concessions stands.
Allow for drinking fountains, ATM machines, trash receptacles, prograrr
This is the corridor connecting all the suites.
Concourse Level, Provide generous space for crowd
and other portables within the concourse.
This is the primary circulation corridor around the seating bowl at Upper Concourke
allowing for queuing at concessions stands.
Allow for drinking fountains, ATM machines, trash receptacles, program kiosks and
5.00 Premium Seat Lobbies
Provide adequate space for guests to wait to board elevators,
Elevators will be used by suite holders and guests who have disabilities or mobility
6.00 Exterior Terraces
Provide exterior terrace at Main Concourse.
7.00 Vertical Circulation
a. Stairs
Exit stairs through the building.
b. Elevators
Passenger and service elevators are included throughout building. One (at minimum) dedicated press levator is to be provided,
which connects press level to field level.
(2) Freight elevators.
Square footage of elevators is counted within g,s,f, of building.
Locate one freight elevator next to commissary.
C. Ramps
One of the ramps to serve as the secured entry to the building.
Level. Provide space for crowd movement,
portables within the concourse,
17
G. Administrative Fa Ilities
1.00 Team Administrati a Offices 32,000SF
The Marlins' ad min istrativ\offices shall be located at the Mezzanine Level and shall include spaces for the following departments.
a. Executive Offices. >>
b. Ticket Sales. `t
C. Marketing, Broadcast, and Pdblic Relations.
d. Corporate Sales.
e. Baseball Operations,
f, Legal.
g. Finance and Accounting.
h. Human Resources.
i, Payroll and Employee Benefits,
j. Management Information Systems.
k. Community Relations.
I. Community Foundation.
2.00 Provide space for the following area .
Kitchenette,
Storage areas.
Executive conference room for 20 people.
Conference room for 12 people.
• Locker room for 4 people.
Men's/Women's toilet rooms,
Workstations for sales representatives and support staff,
• Filing cabinets
Supplies/Copy room.
• Circulation.
3,00 Mail Room. 600SF
w_ _ Mail room can be located off loading dock, to allow screening area that is egregated from offices.
4.00 Data Center.
5.00
6.00
Serves as the nerve center for many components of the ballpark,
Located at same level as Martins offices.
Not an occupied space.
Include raised floor, reinforced walls, and solid ceiling.
Accessible to IT staff.
Requires wide doors (42' minimum).
Requires independent AC zone with generator connections. No Sprinklers.
Locate next to data center, but separated from it.
Assume raised floor here.
The foodservice operations offices shall be located at Mezzanine level, in proximity to staff check-in ah commissary and shall
include the following space:
General Manager.
Assistant General Manager,
18
H,
1.00
2,00
3.00
19
Exhibit E
Return to:
City Manager
3500 Pan American Drive
Miami. Florida 33128-1970
This instrument prepared by,
or under the direction of,
Julie O. Bru, Esq.
City Attorney
City of Miami
444 S.W. 2"d Avenue, Suite 945
Miami, Florida 33130-1910
THIS SPECIAL WARRANTY DEED
and between THE CITY OF MIAMI, a muni
"Grantor"), whose address is 3500 Pan American
first part, and MIAMI-DADE COUNTY, a politi,
successors in interest (the "Grantee"), whose ad(
33128-1970, party of the second part,
e this day of , 2009 by
al corporation of the State of Florida (the
)rive, Miami, Florida 33133, a party of the
Isubdivision of the State of Florida, and its
�\ is 111 N.W. 1" Street, Miami, Florida
WITNESS: That the Grantor, for and in eons'deration of the sum of Ten Dollars
($10.00) to it in hand paid by the Grantee, and other good Ad valuable consideration, the receipt
of which. is hereby acknowledged, does hereby grant, bargain sell and convey to the Grantee, the
following land (the `Property") laying and being in Miami -Dake County, Florida:
Legal Description attached hereto and incorporated
"A„
This Deed is subject to the restrictions, covenants and p�
covenant attached hereto and incorporated herein by reference as A
for itself and its successors in title to the Property hereby conveyed,
comply with the terms and provisions thereof.
y reference as Attachment
s of the restrictive
nt `B" and grantee,
to be bound by and
TO HAVE AND TO HOLD THE SAME, together with all and angular appurtenances
thereto, belonging or in any way incident or appertaining, forever; and th Grantor will defend
the title thereto against all persons claiming by, through or under the Grantor.\
IN WITNESS WHEREOF, Grantor has executed this instrument, andas caused same
to be executed by its City Manager, and has caused the same to be attested by its ity Clerk and
its Corporate Seal hereon to be impressed on this, the day and year first above wri en.
Signed, Sealed and delivered
in the presence of:
ATTEST:
Priscilla A. Thompson, City Clerk
APPROVED AS TO FORM AND
CORRECTNESS:
Julie 0. Bra
City Attorney
"Cita,"
CITY OF MIAMI, a Florida municipal
corporation
By:
Pedro G. Hernandez, City Manager
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before m this
2009, by , who is
produced as
an oath.
NOTARY
Printed Name
_. day of
known to me or who has
and who did/did not take
My Commission expires:
Attachment A
LeLyal Description of the Property
LEGAL DESCRIPTION OF -THE PROPOSED TRACTS FOR THE MARLINS STADIUM,
UNDER FORTIN, LEAVY,'$,KILES, INC SURVEY DRAWING 2008-093.
PROPOSED TRACT "B. ".OF STADIUM PLAT
A portion of Tract "A" of ORANGE FOWL PLAT, according to the TENTATIVE PLAT thereof,
Number T-22945, as approved by the Miami -Dade County Department of Planning & Regulation at the
Plat Committee meeting on March 21, 2'0~08 lying and being in the Northwest/4 of Section 2, Township
54 South, Range 41 East, City of Miami,'iami-Dade County, Florida, being more particularly described
as follows: \
Begin at the Southwest corner of Block 37 of`kAWRENCE ESTATE LAND CO'S SUBDIVISION,
according to the plat thereof, as recorded in Pla Book 2 at Page 46 of the Public Records of said Miami -
Dade County, Florida; thence North 01 °46'36" West along the East right-of-way line of Northwest 16th
Avenue for 275.21 feet to a point of curvature; th nce Northeasterly along a 25.00 foot radius curve,
leading to the right, through a central angle of 89° 8'40" for an arc distance of 39.04 feet to a point of
tangency; thence North 87°42'04" East along the Sc` th right-of-way line of N.W. 6th Street, and the
Easterly extension thereof, for 154.23 feet; thence So th 01'46'36" East for 664.99 feet to a point on a
circular curve, concave to the Southwest and whose ra ius point bears South 15°53'04" West; thence
Westerly along a 300.00 foot radius curve, leading to th left, through a central angle of 18°10'53" for an
are distance of 95.20 feefto a point of tangency; thence ouch 8742'11" West along the North right-of-
way line of N.W. 4th street for 60.04 feet to a point of cu ature; thence Northwesterly along a 25.00 foot
radius curve, leading to the right, through a central angle o 0°3113" for an are distance of 39.50 feet to
a point of tangency; thence North 01'46'36" West along said ast right-of-way line of N.W. 16th Avenue
for 324.78 feet to the Point of Beginning.
Containing 116,546 square feet, or 2.675 acres more or less.
PROPOSED TRACT "C" OF STADIUM PLAT
A portion of Tract "A" of ORANGE BOWL PLAT, according to theENTATNE PLAT thereof,
Number T-22945, as approved by the Miami -Dade County Departmen of Planning & Regulation at the
Plat Committee meeting on March 21, 2008 lying and being in the North est 1/4 of Section 2, Township
54 South, Range 41 East, City of Miami, Miami -Dade County, Florida, b 'ng more particularly described
as follows:
Commence at the Southwest corner of Block 37. of LAWRENCE ESTATE L`),ND CO'S SUBDIVISION,
according to the plat thereof, as recorded in Plat Book 2 at Page 46 of the Publ c Records of said Miami -
Dade County, Florida; thence North 01'46'36" West along the East right-of-wa}.line of Northwest 16th
Avenue for 275.21 feet to a point of curvature; thence Northeasterly along a 25.00 foot radius curve,
leading to the right, through a central angle of 89°28'40" for an are distance of 39.84 feet to a point of
tangency; thence North 87°42'04" East along the South right-of-way line of N.W. h Street, and the
Easterly extension thereof, for 154.23 feet to the Point of Beginning of the here inaft6� described parcel of
land; thence South 01 °46'36" East for 664.99 feet to a point on a circular curve, conc�e to the Southwest
and whose radius point bears South 15°53'04" West; thence Easterly along a 300.00 fool radius curve,
leading to the right, t4rough a central angle of 02°48'16" for an are distance of 14.68 feet to a point of
reverse curvature; theee Easterly along a 1122.00 foot radius curve, Ieading to the left, through a central
angle of 44'06'19" for ap are distance of 863.70 feet to a point of compound curvature; thence
Northeasterly along a 25.�foot radius curve, leading to the left, through a central angle of 66°21'31" for
an arc distance of 28.95 fc t to a point of tangency; thence North 0l °46'29" West along the West right-of-
way line of N.W. l4th Avon e for 606,25 feet to a point of curvature; thence Northwesterly along a 25.00
foot radius curve, leading to e left, through a central angle of 90°31'27" for an are distance of 39.50 feet
to a point of tangency; thence uth 87°42'04" West along the South line of a 50 -foot Public Utility &
Emergency Access Easement, as hown on the plat NEW ORANGE BOWL SUBDIVISION, according
to the plat thereof, as recorded in at Book 153 at Page 72 of said Public Records of Miami -Dade
County, Florida for 845.88 feet to th Point of Beginning.
Containing 622,892 square feet, or 14.30 acres more or less.
Attachment B
Restrictive Covenant
The following covenants, restrictions and provisions shall constitute covenants running
with the land hereby conveyed (the "Property") for the term described in Section 5 below and are
intended for the benefit of the City of Miami, a municipal corporati n of the State of Florida (the
"Grantor"), and shall be binding upon Miami -Dade County, Florida a political subdivision of the
State of Florida (the "Grantee"), and its successors in interest to title in the Property or any
portion thereon. By accepting this Special Warranty Deed, Grantee agrees to be bound by such
covenants, restrictions and provisions:
Application: The restrictions contained herein will apply t6 any use or development
of the Property.
2. Limitation of Development: Development of the Propertyshall be limited to a
multi-purpose professional sports facility together with: (a) andilary office space; (b)
ancillary retail, food and beverage space; (c) ancillary entertainment space; and (d)
ancillary plazas and other public areas.
Restriction: The property shall solely be used for the operation�lof a multi-purpose
professional sports facility, allowing only for the ancillary uses list4d above.
4. Violation of Covenants and Remedy: grantee shall correct an�, violation of the
restrictions, covenants, conditions and agreements contained in this Deed within
thirty (30) days after grantor delivers notice to Grantee indicating te nature of such
ma
violation, Grantor and Grantee agree that, as no measure of dage an be set for the
violation of the restrictions, covenants, conditions and agreements ebntained in this
Deed, the same may be enforced by injunction, or other methods ofquitable relief,
including without limitation, specific performance.
Term: The restrictions, covenants, conditions and agreements contai�neV in this Deed
are to run with the Property and shall be binding and shall remain in 11 force and
effect until the Operating Agreement, entered into between the City, County and
Marlins Stadium Operator, LLC on or about February _, 2009, which rovides for
the operation and management of the Baseball Stadium, is terminated an the grantee
fails to secure a replacement professional sports franchise to use the Base all Stadium
within three years after such termination.
6. Modifications; Amendments: The restrictions, covenants, Gond tions and
agreements contained in this Deed may only be modified by a written agreement
signed by the Grantor or its successor.
Exhibit Public Infrastructure Scope and Budget
No.1 PubA infrastructure Scope:
j
1 1 Water lvlain - new 12" line on 4 St between 14 and 1 Aves; tapping sleeves; valves; stub up water & fire to 313S
2 lWater Main - new ductile 16" line on 6 St between 14 d 17 Aves; tapping sleeves; valves; stub up and
fire line into BBS; one 2" corporate stop for domestic ater & one B" tap for fire line North garages
3 IWater Main - new ductile 12" line on 16 Av between 3 nnoV Sts; tapping sleeves; valves; one 2" tap for
domestic water & one B" tap for fiire line for South garage ; two 12" taps for restaurants
4 lWater - 3 fire hydrants on 4 St, 3 on 6 St, & 2 extras, with vales & 48 LF of e" ductile iron pipe
i
5 Sewer- replace 12" san sewer line on 6th St between 16 Av & mp Station 55, including manholes
6 Sewer - new 12" san sewer line on new 4 St between 14 and 16 ± s
7 Sewer - 6 sanitary laterals; 2 for 7 St; 2 for 6 St; 2 for 3 St; 2 for 4 S garages
8 Sewer - sanitary sewer manholes
9 Stormwater - 48" and smaller pipes, manholes & outlets on 14, 15 & 16 vs and 4 & 6 Sts, around stadium
10 IStormwater - install 3 new submersible pumps at Lawrence Canal Pump tation; 18 Av & 7 St
11 Stormwater - reline existing 48" stormwater pipe from stadium to Lawrence Canal outfall
12 Gas line - cutting and patching of road
13 Electricity - install underground lines, duct bank, manholes and cable from LaN Quarter Substation to Stadium
14 Electricity - mill overfay; Latin Qtr Substation SW 6 St & SW 17 Av to Stadium tjV4 St & NW 15 Av
15 Telecom utiity - location of telecom duct bank to be located at 16 Av & 4 St
16 Road construction - new 4 St between 14 and 16 Aves, including pavers
17 IRoad construction - new 6 St between 14 and 16 Aves, including pavers
16 Road construction - new 15 Ave between 3 & 4 and 6 & 7 Sts
19 Road resurfacing - mill overlay - 3 St between 12 & 17 Aves
2D Road resurfacing - mill overlay - 7 St between 12 & 17 Aves
21 Road resurfacing - mill overlay - 4 St between 16 & 17 Aves
22 Road resurfacing - mill overlay - 5 St between 16 & 17 Aves
23 Road resurfacing - mill overlay - 6 St between 16 & 17 Aves
24 Road resurfacing -mill overlay - 14 Ave between 7 & 2 Sts
25 IRoad resurfacing - mill overlay - 16 Ave between 7 & 2 Sts
26 Road resurfacing - mill overlay - 17 Ave between 7 & 3 Sts
27 Sidewalk, curb, and gutter replacement - south side of 7 St between 14 & 17 Aves
28 Sidewalk, curb, and gutter replacement - both sides of 4 St between 16 & 17 Aves
29 Sidewalk, curb, and gutter replacement - both sides of 5 St between 16 & 17 Aves
30 Sidewalk, curb, and gutter replacement - both sides of 6 St between 16 & 17 Aves
31 Sidewalk, curb, and gutter replacement- both sides of 14 Ave between 7 & 2 Sts
32 Sidewalk, curb, and gutter replacement - both sides of 16 Ave between 7 & 2 Sts
33 Sidewalk, curb, and gutter replacement - north side of 3 St between 14 & 17 Aves
34 Sidewalk, curb, and gutter new -both sides of 15 Ave between 3 & 4 Sts
35 Sidewalk, curb, and gutter new- both sides of 15 Ave between 6 &7 Sts
36 Sidewalks, curb and gutter new - 4 St between 14 & 16 Aves
37 Sidewalks, curb and gutter new- 6 St between 14 & 16 Aves
38 Sidewalk, curb, and gutter- at Lawrence Canal pump station
39 Road lighting - 4 St between 14 & 16 Ave; alternating street sides; pole bases & conduit only
__
40 Road lighting - 6 St between 14 & W Avs; alternating street sides; pole bases & conduit only
41 Road lighting - 14 Ave between 3 & 7 Sts; alternating street sides; pole bases & conduit only
42 Road lighting -16 Ave between 3 & 7 Sts; alternating street sides; pole bases & conduit only
43 Road lighting - 7 St between 14 & 16 Avs; alternating street sides; pole bases & conduit only
44 Road fighting - 15 Ave between 3 & 4 Sts; & 6 & 7 St, alternating street sides; pole bases & conduit only
45 Road lighting - 3 St between 14 & 16 Avs; alternating street sides; pole bases & conduit only
46 IRoad fighting - FPL furnish and install lighting poles, fixtures
47 Trafficsignaliization - up to 4 signals
Landscaping
49 Total Construction
$ 6,591,125
50 Construction contingency 10% on Total Construction
1,659,113
148
51 Construction Manager Fees and General Conditions
$ 657,429
52 Electricity - ower lines- relocate power lines on 14 and 16 Aves * Allowance
$1, o0,ODD
53 Road lighting - FPL furnish and install lighting poles, fixtures * (Allowance)
$2 Q,ODO
54 Removal/dewatering of contaminated soils
$315, 53
55 Owner's contingency
56 Total PiililicnfrastilttiiFe Bti"deet, .
$23,87.3,42b,
Note: as provided in the Construction Administration Agreement, the Stadium Developer has retained the
architect to provide all design services for the Public Infrastructure work. The Team shall bear the cost of
all such services (approximately $1,000,000).
'City to pay 1 DO% of actual costs for this portion of the Public Infrastructure Work to the extent the City requests the
design and construction of the enhancement
" Additional Nems added to the Scope of Work will funded by the requesting party,
Exhibit H - Stadium Project Budget
Hunt/Moss Stadium Construction Contract
CM Contingency and General Liability Insurance
CM Pre -Construction Fee
CM General Conditions and Fees
CM Payment and Performance and
CM Hard Construction Costs
Total Hard Costs
Soft Costs/Developer Contingencies
Architect, Owner's Rep, Misc. Consultants ie., Traffic, Environmental, ADA)
Advertising and Marketing
Legal Fees, Testing and Inspection, and Commi sion
Insurance, Professional Liability, and Builders Ris n
Project Contingency @ 5% GMP Direct Cost
Scope Creep Between Schematic Design and Design
Scope Creep Between Design Documents and Guare
Named Storm Contingency
Soft Cost Contingency
Public Art
Permitting
CM = Construction Manager
ing
surance
ments
Maximum Price
Total Soft Costs &
Total Stadium Project
20,224,000
893,000
31,772,000
2,283,000
370,328,000
425,500,000
26,500,000
1,000,000
8,350,000
11,850,000
18,727,000
1,500,000
9,173,000
1,000,000
1,800,000
7,500,000
2,100,000
89,500,000
515,000,000
CONSTRUCTION ADMINISTRATION AGREEIA ENT
Exhibit I - Draw Down Schedule
iu $000
Construction
Month
_
Draw Down Amount
period
onth
Cumulative
Private
Public
Private
Public
Pre -con
December
2008
$8,269.0 \
$8,269.0
$0.0
Pre -con
January
2009
$1,327.7 ,�
$0.0
$9,596.7
$0.0
Pre -con
February
2009
$1,461.9
$0.0
$11,058.6
$0.0
Pre -con
March
2009
$164.5
$1,69 8.3
$11,223.0
$1,698.3
Pre -con
April
2009
$1,144.0
$865.3
$12,367.0
$2,5616
Pre -con
May
2009
$1,148.0
$890.3
$13,515.0
$3,453.9
Pre -con
June
2009
$1,245.0
$2,077.4
$14,760.0
$5,531.2
1
July
2009
$1,232.6
$18,2 , .5
$15,992.6
$23,799.8
2
August
2009
$1,715.6
$4,332.
$17,708.3
$28,132.0
3
September
2009
$1,310.6
$3,996.7
$19,018.9
$32,128.7
4
October
2009
$1,184.0
$5,499.8
$20,202.9
$37,628.6
5
November
2009
$383.5
$4,713.6
$20,586.3
$42,342.1
6
December
2009
$373.5
$5,190.0
$20,959.8
$47,532.1
7
January
2010
$373.5
$6,088.1
$21,333.3
$53,620.2
8
February
2010
$383.5
$6,173.4
21,716.8
$59,793.6
9
March
2010
$363.5
$9,137.4
$ ,080.3
$68,931.0
10
April
2010
$363.5
$15,571.4
$2 443.7
$84,502.4
11
May
2010
$373.5
$13,894.4
$22, 7.2
$98,396.8
12
June
2010
$363.5
$12,548.6
$23,1 .7
$110,945.5
13
July
2010
$363.5
$15,710.7
$23,544.
$126,656.2
14
August
2010
$403.5
$16,009.7
$23,947.7
$142,665.9
15
September
2010
$373.5
$17,531.0
$24,321.1
$160,196.9
16
October
2010
$359.5
$18,132.3
$24,680.6
178,329.2
17
November
2010
$348.5
$17,734.5
$25,029.1
$ 96,063.7
18
December
2010
$338.5
$18,067.2
$25,367.6
$2 4,130.9
19
January
2011
$345.6
$17,615.5
$25,713.2
$231 746.4
20
February
2011
$345.6
$17,796.4
$26,058.8
$249, 2.8
21
March
2011
$345.6
$16,799.2
$26,404.5
$266,34 0
22
April
2011
$345.6
$24,038.3
$26,750.1
$290,380.
23
May
2011
$355.6
$18,373.7
$27,105.7
$308,754.1
24
June
2011
$355.6
$17,914.5
$27,461.3
$326,668.5
Page 1 of 7
CONSTRUCTION ADMINISTRATION AGREEMENT
Page 2 of 2
Exhibit I - Draw Down Schedule
�in $000
Construction
Month
_
Draw Down Amount
period
Month
Cumulative
Privae
Public
Private
Public
25
July
2011
$3 5.6
$18,979.6
$27,806.9
$345,648.1
26
August
2011
$2,98 .5
$15,351.9
$30,788.5
$361,000.0
27
September
2011
$20,916.
$0.0
$51,705.2
$361,000.0
28
October
2011
$19,911.
$0:0
$71,616.4
$361,000.0
29
November
2011
$19,049.5
$0.0
$90,665.9
$361,000.0
30
December
2011
$18,139.4
$0.0
$108,805.3
$361,000.0
31
January
2012
$17,771.9
$0.0
$126,577.2
$361,000.0
32
February
2012
$14,220.5
$0.0
$140,797.8
$361,000.0
33
March
2012
$5,054.8
$0.0
$145,852.6
$361,000.0
Post -con
April
2012
$1,693.3
$0.0
$147,545.8
$361,000.0
Post -con
May
2012
$1,534.8
0.0
$149,080.7
$361,000.0
Post -con
June
2012
$872.0
$0 0
$149,952.7
$361,000.0
Post -con
July
2012
$770.1
$0.
$150,722.8
$361,000.0
Post -con
August
2012
$770.1
$0.0
$151,492.8
$361,000.0
Post -con
September
2012
$670.5
$0.0
$152,163.4
$361,000.0
Post -con
October
2012
$553.9
$0.0
$152,717.3
$361,000.0
Post -con
November
2012
$670.5
$0.0
153,387.8
$361,000.0
Post -con
December
2012
$612.2
$0.0
$ 4,000.0
$361,000.0
Summary per period:
Pre - construction
$14,760.0
$5,531.2
$14,760 0
$5,531.2
Construction months 1 - 12
$8,420.7
$105,414.2
$23,180.
$110,945.5
Construction months 13 - 24
$4,280.6
$215,723.1
$27,461.3
$326,668.5
Construction months 25 - 33
$118,391.2
$34,331.5
$145,852.6
$361,000.0
Post -construction
$8,147.4
$0.0
$154,000.0
361,000.0
Page 2 of 2
CONSTRUCTION ADMINISTRATION AGREEMENT
EXHIBIT 1-1
REIMBURSIBLE INTERIM COSTS — EXPENDITURE CATEGORIES
- Proiect Costs (funded nronortionallvto Cdunty and Citv's funding contribution):
CM - Pre -Con Fee
CM - Hard Costs
CM - Misc
Testing and Inspection
Commissioning
Permitting
Insurance - PLL CLL (environmental)
Prof. Liability Program
Builders Risk
Wrap -Up
Insurance termination — minimum earned premiums and brokerage
II -Stadium Developer Paid Proiect (Soft) Costs
HOK, architect
Owner's Rep
Consultants & Legal Fees
III - County and City Soft Costs
County Owner's Rep
Legal Fees
Title fees
Consultants
Surveys, Re -plating
A/E for MUSP
Environmental Insurance
EXHIBIT J
DIRECT PURCHASE PROCEDURES
EXHIBIT K
SOURCES OF FUNDS FOR THE STADIUM CONSTRUCTION BUDGET
($ MILLIONS),
Source qagnty Team** Total
Private Contribution* 154,000,00 154,000,000
Professional Sports Tax 149,500,000 149,500,000
Tourist Development Tax 88,000,000 88,000,000
County CDT 60,000,000 60,000,000
City CDT 13, 00,000 13,500,000
General Obligation Bonds 50,000,000 50,000,000
Total 347,500,000 154,000,000 13,500,900 515,000,000
*$35 million of the $154 million Team Funding Contribution is funded through annual payments to the G unty, beginning with a
$2.3 million payment in the first operating year and increasing 2 percent per year, for each Operating Ye r during the initial thirty-
five year term of the Operating Agreement
"The Stadium Developer has retained the architect (HOK) to provide all design services for the Public Infra tructure work. The
Team shall bear the costs of all such services (approximately $1 million)
Exhibit L
FORM OF FUNDING REQUEST
Payment No.
[Name and address of Government Representative for the County Account]
[Name and address of GovernmenRepresentative for the City Account]
[Name and address of Account Hol er for the Stadium Developer Account]
Ladies and Gentlemen:
This Requisition Certificate i delivered by Marlins Stadium Developer, LLC, a
Delaware limited liability company (th "Stadium Developer"), pursuant to the provisions of
the Construction Administration Agreem nt, dated , 2009 (the "CAA"), by
and among the Miami -.Dade County, a political subdivision of the State of Florida (the
"County"), the City of Miami, a municipal orporation of the State of Florida (the "City"), and
the Stadium Developer. All capitalized term not defined herein shall have the meaning ascribed
to those terms in the CAA, as the same may a ended from time to time.
The Stadium Developer hereby requests
$ for Stadium Project Costs; or
$ for Public Infrastructure Costs
The requested disbursements should be
the following amounts:
hereto.
rsement in the aggregate amount of:
Account:
County Account for Stadium Project Costs
County Account for Public Infrastructure Costs
City Account for Stadium Project Costs
City Account for Public Infrastructure Costs
Stadium Developer Account
from the following Funding Accounts in
Disbursement Amount:
The disbursement(s) should be made to the payee(s)
The Stadium Developer hereby certifies:
L -I
on Schedule I attached
(1) Each item for which payment or eimbursement is herein requested was incurred
in connection with the Baseball Stadium Project dr the Public Infrastructure, as the case may be,
and are costs eligible for payment or reimbursemen`I in accordance with the CAA;
(2) All amounts have been paid by Stadium Developer to the payees listed on
Stadium Developer's previous funding requisition , and Stadium Developer has received
evidence that all persons and entities listed on Stadiurrl previous funding requisitions
(including the Construction Manager and its subcontractors, as applicable) have been paid the
respective amounts listed on the previous funding requisitions;
(3) With respect to the Stadium Project Co ts, attached hereto as Schedule 2 are
copies of the following documents: (a) with respect to di bursement requests relating to work or
services performed under the Construction Managem t Contract, (i) the Application for
Payment of the Construction Manager and (ii) all documntation required by the Construction
Management Contract to accompany the Application fo Payment; and (b) with respect to
disbursement requests relating to any other Stadium Proje Costs, (i) the invoice or payment
application of the payee for whom payment is being req ested and (ii) all documentation
required by the payee's contract to accompany the invoice or p ment application;
(4) With respect to the Public Infrastructure Costs, aached hereto as Schedule 3 are
copies of the following documents: (a) with respect to disburse- nt requests relating to work or
services performed under the Construction Management Con ract, (i) the Application for
Payment of the Infrastructure CM and (ii) all documentation r quired by the Construction
Management Contract to accompany the Application for Payment,- and (b) with respect to
disbursement requests relating to any other Public Infrastructure Costs, (i) the invoice or
payment application of the payee for whom payment is bein � requested and (ii) all
documentation required by the payee's contract to accompany e invoice or payment
application; and
(5) Attached hereto as Schedule 4 is a Summary of Costs an Disbursements setting
forth budgeted amounts, previous draw requests made and current draw re h uests for the Stadium
Project Costs and the Public Infrastructure Costs .
L-2
N
Dal
AI)
By:
Nai
Titl
L-3
SCHEDULE 1 TO STADIUM DEVELOPER REQUISITION CERTIFICATE
Schedule of Amounts Due and Payable
Note: Per Section 5.2(d) of the CAA, payments made to the Construction Mager for its
performance of construction management services (i.e., management fee, profit, office overhead,
general conditions performed or provided by the Construction Manager as part of its construction
management services and cost of work that is self -performed by the Constructi , n Manager),
shall be made by a dual party check (or other dual party payment method) in th name of the
Stadium Developer and the Construction Manager. Where appropriate, such d a] party
payments are noted in the payee column below.
A. Baseball Stadium Project
Name and Address of Payee Payment Requested
B. Public Infrastructure
Name and Address of Payee Payment Requested
L-4
sc
Attached
performe
is the aff
listed in i
L-5
SCHEDULE 3 TO SODIUM DEVELOPER REQUISITION CERTIFICATE
Attached are the pay apple ations, invoices and related backup documentation relating to
work performed or services rendere in connection with the Public Infrastructure. Also attached
is the affidavit of the Construction N nager certifying that it has paid in full all subcontractors
listed in its previous Application for Pa �ment.
L-6
h
SCHEDULE 4 TO STADIUM DEVELOPER REQUISITION CERTIFICATE
SUMMARY OF COSTS & DISBURSEMENTS
\ Stadium Proiect Costs
Public Infrastructure Costs
COUNTY
CITY
DEVELOPER
Public Infrastructure Costs
Stadium Project
Cbgts Stadium Project Costs
Stadium Project Costs
TOTAL
Budgeted Amounts
$,4�
$
$
$
Net Change by Change
Contract sum
$
$
$�
Orders
$
1
$
Total of Previous Retainage
Contract Sum
$
\ $
$
$
County Procurements
$
Current Draw request
$
$
Adjusted Available Budgeted
Less: Retainage
$
$
$
Amts
$
$
$
Total of Previous Draws
$
$ ' ,
$
$
Total of Previous Retainage
$
$
$
$
Amount Available
$
$�
$
$
Current Draw Request
$
$
$
$
Less: Retainage
$
$
$
$
Current Payment Due
$
$^�
$
$
Public Infrastructure Costs
L-7
COUNTY
CITY
Public Infrastructure Costs
Public Infrastructure Costs
Budgeted Amounts
$
$
\TOTAL
Net Change
$
$
Contract sum
$
$
$�
Total of Previous Draws
$
$
$
Total of Previous Retainage
$
$
$
Amount Available
$
$
$
Current Draw request
$
$
$
Less: Retainage
$
$
$
Current Payment Due
$
$
$
L-7
EXHIBIT M
AFFIDAVIT
STATE OF FLORIDA ) \
) SS:
MIAMI-DADE COUNTY )
The undersigned, a duly authd ized representative of Double Play Company ("Team
Owner"), represents that Team Owner wns the controlling interest ("Controlling Interest") in
the Florida Marlins, L.P., a Delaware limi .ed partnership ("Team"), and as such has sole decision
making authority with regard to the Team.
In connection with the issuance by 1'\nof
Dade County, Florida (the "County") of bonds
(the "Bonds") to finance the cost of constructa new baseball stadium for use by the Team,
the Team Owner represents to the County thoes not presently intend to sell or otherwise
divest itself of the Controlling Interest in the Tfor a period of five years from the date hereof
and acknowledges that the County is issuing t\Play
liance on this representation.
FURTHER AFFIANT SAYETH NAUGHT
IN WITNESS WHEREOF, I set my hand thday of )2009.
Doublompany
.0
Nameof
Title
Subscribed and sworn to before me, a notary public, this Xay of , 2009.
Notary Public
My commission Expires:
CINCINNA7I/74584.1
PRELIMINARY
EXHIBIT N
Activity
Activity
Early
Early
2008 1
2009 1 2010
1 2011 1 2012
]I I 1111111111 H1111 71-111
ip
Description
Start
Finish
uuwlunnuunmupnnnmiwnnnunnuvuwuulluuwnmunnnnnummnmunnnqunumunnunnnnnnnnnwlui
MUSP PROCESS ;
CRITICAL ITEMS
M0230 MUSP PROCESS 21JULOBA 129MAY09
1
BALLPARK
'4.
M0250
RECONCILE SD DRAWINGS DOCUMENTS
09DECOBA
[ GONCILE SD DRANJINGS DOCUMENTS
DESIGN AND D:EVI L'OPMEN
.1 � j DRAWINGS (DDs) ;
M0240 DESIGN AND DEVELOPMENT DRAWINGS (DDS) 09DEC08A
09MAR09
1
®ISSUE PERMIT PACK 1 :: FOUNDATIONISITE UTILITY
M0320
ISSUE PERMIT PACK 1 : FOUNDATION/SITE UTILITY
01APR09
dCITY/COUNTY REVIEW PERMIT PK'1::FDNISITE UTILITY
M0320A CITY/COUNTY REVIEW PERMIT PK 1: FDN/SITE UTILITY 01APR09 01JUN09
411SSUE'PERM{T PACK 2, STRUCTURAL
ocItYIC0UNTY REVIEW PERMIT PACK 2
M0330 ISSUE PERMIT PACK 2: STRUCTURAL 01 JUN09
M0330A
CITY/COUNTY REVIEW PERMIT PACK 2
DIJUN09
31JUL09
0rMP,E9TA84I5HED ;
CONSTRUCTI N DOCUMENTS
; OISSUE PERMIT_BID' c;K 3 `: BALANCE
c::) NTY REVIEW-PERMIT PACK 3' ,
M0300 GMP ESTABLISHED 21SEPOO
M0290 CONSTRUCTION DOCUMENTS 10MAR09 08DEC09
M0340 ISSUE PERMIT BID PACK 3: BALANCE 08DEC09
M0340A CITY/COUNTY REVIEW PERMIT PACK 3 08DEC09 08FEB10
12JAN09
01APR10
0001
NOTICE TO PROCEED NEW STADIUM CONSTRUCTION
01JUL09
I
;NOTICE TO'FROCEED;NEW, STADIUM CONSTRUCTI,Oh{ ;
;®PRO;CU}jE P'ERMITS,To. cc)mrtjENCE CONSTRUCTION; ;
LSrfE PREPARAT)ON;8& EQRTAvvbRK
CONCRETE FOWL
OOF PANEL- ASSEMBL -
0101 PROCURE PERMITS TO COMMENCE CONSTRUCTION 0 L09
1200 SITE PREPARATION & EARTHWORK 01JUL 01SEP09
1025 CONCRETE FRAME 21AUG09 12SEP11
1080
ROOF PANEL -ASSEMBLY
16JUL10
170CT11
sulLo-Our{NTERIog .
I'
� NSTALL PLAYINaFIELq�-
COMMISSION BASE BUILDING
1170 BUILD-OUT INTERIORS 02AUGIO 10FEB12
1110 INSTALL PLAYING FIELD 04JAN12 02MAR12
1180 COMMISSION BASE BUILDING 31OCT11 29MAR12
e
5570
OPERATIONS OFFIC EA AVAILABLE
09JAN12
OPERATIONS OFFICE AREA AVAILABLE' , .
start Date
19AUG07
0122
Sheet 1 of 2
Flnieh Date
30NOV12
Dala Date
baf¢
08JAN09
AND908:28
26J`Ru
FLORIDA MARLINS
MILESTONES
��ftttxFm
i 6
SCHEDULE
4PRELIMINARY uSI`;
c,) uI
GxIo
0 Primavera Systems, Inc.
Activity
Activity
Early
Early
008 1
2099 20_10 L 2011 1 201 F
ID
Description
Start
Finish
..
IpfAl141ilIIIIInA......11 IIIINI
1
AIIIIIAIp.1AIXXI11......IIM1IIIIAIIIII,IIIXIII IIIIla11XItItlIIIielWtrlltllnt1111iYIII110111111I1tIi1111111iI111111111111AI1II1111f IIIIIIIIIIiXIIIXIAII ll)fllllllXlllt
I CONCESSIONAIRE OFFICE AVAILABCQ� '
5500
CONCESSIONAIRE OFFICE AVAILABLE
22FEB12
, .
FOOD SERVICE AREAS AVAILABL*,
A
; scoR ea`ARD CONTROL ROOM AVAILABL* .
MARLINS OFFICE AVAILABIIg
I I SUBSTANTIAL•COMPLETIP* ;
.A
6000 FOOD SERVICE AREAS AVAILABLE 22FE812
6500 SCOREBOARD CONTROL ROOM AVAILABLE 22FE612
5000 MARLINS OFFICE AVAILABLE 15MAR12
9999 SUBSTANTIAL COMPLETION 30MAR12
II 1
,
5565
CIVIL DESIGN - PUBLIC INFRASTRUCTURE
03NOV08A
30APR09
IVIL DESIGN _PUBLIC IIJFRASTRUCTURE
(]ESTABLISH GMP'-9NFRASTRUCTUR.E
5560 ESTABLISH GMP -'INFRASTRUCTURE 08MAY09 15JUN09
Oro U U
IoUUUN09
29FEB12
PARKING
GARAGE
D
..
6510
SELECTION OF DESIGN TEAM02FEB09'
27FEB09
OSELECTION OF DESIGN TEAM ;
[1sELECTION of CONSTRUCTION TEnM
6520
SELECTION OF CONSTRUCTION TEAM
02MAR09
30MAR09
g50%CONSTRLIVTION DOC NTpE;SIGN oELIVEt2ABLE
X100% 0 i UOTION DOCUMENT DESIGN IDELIVERA
ESTABIJSH,GMP ;
6525 50% CONSTRUCTION DOCUMENT DESIGN DELIVERABLE 02MAR09 29MAY09
6540 100% CONSTRUCTION DOCUMENT DESIGN DELIVERABLE 01JUN09 31AUG09
6550 ESTABLISH GMP 01OCT09 30OCT09
6575
P4 PARKING GARAGE (SOUTH EAST)
03MAY10
31JAN
P�
�P,4 PARISING GARAGE (S,QUTH
rl .
GAF2AG (SOU
I 1
ARKING GARAGE (N,OR7:H EA S
6580 P3 PARKING GARAGE (SOUTH WEST)
01 JUL10 1 MAR11P3,i?ARKtNG
6585
P2 PARKING GARAGE (NORTH EAST)
03J 1
30DEC11
:1 I
1
PARKING GARAGE_(NORLH VVEsI
5590
Pi PARKING GARAGE (NORTH WEST)
01MAP 11
28FE612
Start Date
19AUU ,
0122
Sheet 2 of 2
F1r&h Date
Daly Date
30NOV12
08JAN09
FLORIDA MARLINS
Ren Da19
26JAI40908:28
PRELIMINARY MILESTONES
/
SCHEDULE
/
O Primavera Systems, Inc.
In addition to the requirements already 'specified throughout the Construction
Administration Agreement, and specifically Sectln 5.2 thereof, the Construction
Management Contract shall include the following,`equirements:
The Construction Manager shall comply with\all
not limited to the Florida Building Code, Chapter
regarding Public Records laws, the State of Flor
Payment Act, the County's Inspector General rec
Construction Administration Agreement, the Cot
requirements set forth in the Construction Admir
County's Sustainable Buildings set forth in the C
Agreement and LEED certification requirements
Administration Agreement.
Applicable Laws, including but
119 of the Florida Statutes
is and the County's Prompt
. tirements set forth in the
n's Art in Public Places
is ation Agreement. and the
ons6\uction Administration
set fd h in the Construction
2. Provided that the County and City have complied with the' funding and payment
obligations under Construction Administration Agreement th�nd
Construction
Manager shall release and indemnify the County and the Cithold the County
and the City harmless from any and all claims, actions and cs of action
relating to the performance of the Construction Management Ckunty
act. The
Construction Manager's indemnification requirements as to the and City
in the Construction Management Contract shall be substantially si 'lar to those
of the Stadium Developer contained in the Construction Administr tion
Agreement. The Construction Manager shall include in any and all ubcontracts
used to perform the Work provisions requiring the subcontractors to lease,
indemnify and hold the County and the City harmless from any and al claims,
actions and causes of action and that no subcontractor shall make a clan against
the County or the City provided that the County and City have complie with
their funding and payment obligations under Construction Administratio
Agreement,
3. The Construction Management Contract shall state that the County and th City
shall be express third party beneficiaries of that Contract. The Constructi0
Manager shall acknowledge the Stadium Developer's obligations to the Co my
and the City contained in the Construction Administration Agreement.
4. The Construction Management Contract shall provide that it may be assigned
the County without the consent of the Construction Manager. In any and all
subcontracts used to perform the Work, the Construction Manager shall incluc
provisions for the assignment of the subcontract(s) to the County in the event
Construction Management Contract is terminated by the Stadium Developer,
5. The Construction Manager shall agree to make available to the County and the
City, through the Stadium Developer, any and all information, documents and
reports which may reasonably be required or requested by the County or the City
and otherwise to cooperate with the County and the City to meet any applicable
deadlines or milestones set forth in the Construction Administration Agreement.
The Construction anager shall further agree to respond, through the Stadium
Developer, to in uiri'es,from the Board of County Cormnissioners and/or the City
Commission. Notwithstanding the foregoing, it is understood that all requests
must be made thr Hugh the Stadium Developer.
6. With respect to the Public hlfrastructure Work, the Construction Manager shall
provide to the County d the City, through the Stadium Developer, any and all
information reasonably r uested by the County or the City in connection with the
procurement methodology lanned or used and bids or offers received or
accepted.
7. With respect to the Public Infras , cture Work, the Construction Manager shall
offer to the County and the City, t ough the Stadium Developer, value
engineering and time recovery reco endations to maintain the Work on time
and within budget.
With respect to the Public Infrastructure Vork, the Construction Manager shall at
all times maintain separate records and se rate billing from that of the Baseball
Stadium Work.
In accordance with Florida Statutes Section 2N.055, the Construction Manager
shall agree that no professional services (as def ed in Florida Statutes Section
287.055) shall be performed by the Constructionanager and/or reimbursed
from the County Account or the City Account.
9. Upon reasonable notice to the Construction Manager, Ne Construction Manager,
through the Stadium Developer, shall agree to make ava'lable to the County and
the City for audit and inspection all cost information relat' g to the Work.
1.0. The Construction Manager shall be required to obtain the paXment and
performance bonds set forth in Section 3.8(f), 5.2(d) and 5.2( , of the
Construction Administration Agreement, respectively.