HomeMy WebLinkAboutExhibit B-SUB- FINAL724-1 e
Execution Copye�<�
OPERATING AGREEMENT
by and among
MIAMI-DADE COUNTY,
THE CITY OF MIAMI
and
MARLINS STADIUM OPERATOR, LLC
APRIL _, 2009
TABLE OF CONTENTS
Page
ARTICLEI DEFINED TERMS....................................................................................................1
ARTICLE II ENGAGEMENT OF OPERATOR........................................................................15
ARTICLEIII TERM....................................................................................................................15
Section3.1 Term..........................................................................................................15
Section 3.2 Options to Extend....................................................................................15
ARTICLE IV OPERATOR'S RIGHTS AND OBLIGATIONS................................................16
Section4.1
Operation..................................................................................................16
Section 4.2
Use and Service Agreements...................................................................17
Section5.2
Section 4.3
Revenue Rights........................................................................................17
Section5.3
Section 4.4
Concessions..............................................................................................18
Section 5.4
Section 4.5
Labor Peace..............................................................................................18
Section4.6
Signage.......................................................................................................18
Section4.7
Naming Rights...........................................................................................19
Section4.8
Scheduling................................................................................................19
Section 4.9
Annual Payment.......................................................................................19
Section 4.10
Operating Expenses.................................................................................19
Section 4.11
Access Rights...........................................................................................20
Section 4.12
Administration.........................................................................................20
Section 4.13
Transact Business.....................................................................................20
Section 4.14
County and City Acknowledgment..........................................................20
Section 4.15
Utility Rates.............................................................................................21
Section 4.16
Public Safety Personnel...........................................................................21
Section4.17
Plaza.........................................................................................................22
ARTICLE V SOCCER STADIUM..............................................................................................22
Section 5.1
Construction...............................................................................................22
Section5.2
Scheduling..................................................................................................24
Section5.3
Advertising.................................................................................................26
Section 5.4
Soccer Agreement....................................................................................26
ARTICLE VI GOVERNMENT PARTY USE............................................................................26
Section 6.1 Government Party Use of Baseball Stadium.............................................26
Section 6.2 Government Party Access........................................................................31
Section 6.3 Stadium Event Proceeds..........................................................................31
ARTICLE VII COMMUNITY BENEFIT OBLIGATIONS.......................................................31
Section 7.1 Community Benefits................................................................................31
Section 7.2 Local Business Initiatives........................................................................33
Section 7.3 Community Suite.....................................................................................33
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ARTICLE VIII OWNERSHIP OF STADIUM, ASSETS...........................................................33
Section 8.1 County Ownership Interest......................................................................33
Section 8.2 Ownership Of Team Depreciable Assets For Income Tax Purposes ......... 33
Section 8.3 Ownership of Promotional Rights...........................................................34
ARTICLE IX MAINTENANCE, REPAIRS AND CAPITAL IMPROVEMENTS ...................35
Section 9.1 Maintenance and Repairs.........................................................................35
Section 9.2 Capital Improvements................................................................................35
Section 9.3 Capital Reserve Fund.................................................................................35
Section 9.4 Title to Additions.....................................................................................36
Section 9.5 Annual Reports..........................................................................................37
ARTICLE X INSURANCE..........................................................................................................38
Section 10.1 Insurance Requirements. ..........................................................................38
Section 10.2 Master Policy; MLB Policies.....................................................................39
Section 10.3 General Insurance Provisions....................................................................40
Section 10.4 Proceeds of Insurance..............................................................................40
ARTICLE XI CASUALTY DAMAGE.......................................................................................40
Section 11.1
Operator Assignments..............................................................................48
Damage or Destruction.............................................................................40
Section 14.2
Section 11.2
Insurance Proceeds.....................................................................................41
Release of Operator..................................................................................49
Section 11.3
Section 14.4
Government Relief Grants
.........................................................................42
Section I
L4
Option to Terminate...................................................................................43
Section 14.6
Section11.5
Survival......................................................................................................43
Compliance Certificate............................................................................50
ARTICLE XII EMINENT DOMAIN..........................................................................................43
Section 12.1 Total Taking...............................................................................................44
Section 12.2 Partial or Temporary Taking....................................................................44
Section 12.3 Condemnation Proceedings and Awards...................................................44
ARTICLE XIII INDEMNIFICATION........................................................................................45
Section 13.1 Indemnification by Operator......................................................................45
Section 13.2 Indemnification by Government Parties....................................................46
Section 13.3 Indemnification Procedures.......................................................................47
Section 13.4 Insurance Recoveries...............................................................................48
Section13.5 Survival....................................................................................................48
ARTICLE XIV ASSIGNMENTS AND TRANSFERS...............................................................48
Section 14.1
Operator Assignments..............................................................................48
Section 14.2
Permitted Transfers.................................................................................48
Section 14.3
Release of Operator..................................................................................49
Section 14.4
Transactions that are not Transfers
.......................................................... 49
Section 14.5
Transfers by Government Parties.
............................................................49
Section 14.6
Transfers Void.........................................................................................50
Section 14.7
Compliance Certificate............................................................................50
Section 14.8
Collateral Assignment..............................................................................50
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ARTICLE XV REPRESENTATIONS, WARRANTIES AND COVENANTS
.........................56
Section 15.1
County Representations, Warranties and Covenants...............................56
Section 15.2
City Representations, Warranties and Covenants....................................57
Section 15.3
Operator Representations, Warranties and Covenants . ............................58
Section 15.4
Mutual Covenants......................................................................................60
ARTICLEXVI TAXES...............................................................................................................61
Section 16.1 Intangible and Ad Valorem Taxes...........................................................61
Section 16.2 Targeted Taxes.........................................................................................62
ARTICLE XVII DEFAULTS AND REMEDIES; TERMINATION.........................................62
Section 17.1 Operator Default......................................................................................62
Section 17.2 Government Party Default.......................................................................63
Section17.3 Remedies....................................................................................................63
Section 17.4 [INTENTIONALLY OMITTED]..............................................................64
Section 17.5 Termination..............................................................................................64
Section 17.6 Exclusive Remedies.................................................................................65
ARTICLE XVIII ARBITRATION..............................................................................................66
Section 18.1 Arbitration................................................................................................66
Section 18.2 Emergency Relief.....................................................................................67
Section 18.3 No Indirect Damages...............................................................................67
ARTICLE XIX MISCELLANEOUS...........................................................................................68
Section19.1
Notices.....................................................................................................68
Section 19.2
Merger Clause..........................................................................................69
Section 19.3
Amendment..............................................................................................69
Section 19.4
Binding Effect..........................................................................................69
Section19.5
Waiver......................................................................................................69
Section 19.6
Non -Recourse Liability of County Personnel..........................................69
Section 19.7
Non -Recourse Liability of City Personnel...............................................69
Section 19.8
Non -Recourse Liability of Operator Personnel.......................................70
Section 19.9
Government Cooperation.........................................................................70
Section 19.10
Government Representatives...................................................................70
Section 19.11
Consent of Parties....................................................................................71
Section19.12
Headings..................................................................................................72
Section 19.13
General Interpretive Provisions...............................................................72
Section 19.14
Severability..............................................................................................72
Section 19.15
Absence of Third -Party Beneficiaries......................................................72
Section 19.16
Governing Law........................................................................................72
Section 19.17
Time of Essence.......................................................................................73
Section 19.18
Relationship of Parties.............................................................................73
Section 19.19
Sovereign Rights......................................................................................73
Section 19.20
Antidiscrimination Clause.......................................................................74
Section 19.21
Permitted Development Uses and Downzoning........................................74
Section 19.22
Force Majeure..........................................................................................74
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Section 19.23
MLB Requirements. ..........
Section 19.24
Valid Agreement . ..............
Section 19.25
County Inspector General.
Section 19.26
Books and Records; Audit.
Section 19.27
Counterparts . .....................
IV
.......................................................................74
.......................................................................75
.......................................................................75
......................................................................75
.......................................................................76
OPERATING AGREEMENT
This Operating Agreement (this "Agreement") is made and entered into as of this
day of April, 2009, by and among Miami -Dade County, a political subdivision of the State of
Florida (the "County"), Marlins Stadium Operator, LLC, a Delaware limited liability company
(the "O erator"), and solely for purposes of the City Provisions (as defined in Article I), the City
of Miami, a municipal corporation of the State of Florida (the "City").
RECITALS
A. Contemporaneously with the execution of this Agreement, the County, the City
and the Stadium Developer, an Affiliate of the Operator, are entering into a Construction
Administration Agreement that provides for the design, development and construction of the
Baseball Stadium. (Capitalized terms used herein are defined in Article I.) The Baseball
Stadium and the Baseball Stadium Site will be owned by the County.
B. This Agreement is being executed in conjunction with the Construction
Administration Agreement to provide for the operation and management of the Baseball Stadium
by the Operator once the Baseball Stadium has been substantially completed as provided in the
Construction Administration Agreement.
C. Contemporaneously with the execution of this Agreement, (i) the Team is
entering into the Non -Relocation Agreement with the County and the City pursuant to which the
Team is agreeing to play its home baseball games in the Baseball Stadium, and (ii) the Operator,
the City and the County are entering into the City Parking Agreement that provides for the
construction, operation and use of Parking Facilities for Stadium Events.
NOW, THEREFORE, the Parties agree as follows:
ARTICLE I
DEFINED TERMS
Capitalized terms used in this Agreement and not otherwise defined shall have the
meanings set forth below. Certain other capitalized terms which are not defined herein shall
have the meanings provided in the Construction Administration Agreement.
"AAA" is defined in Section 18.1.
"Access Rights" is defined in Section 4.10.
"Admission Tickets" means the per event ticket or other indicia sold by (i) the Operator
or the Team or, with the consent of the Operator, any User, or (ii) with respect to any
Community Event, the County or the City, in each case, which authorizes admission to any
seating at the Stadium Premises for a Stadium Event.
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"Admission Tickets Rights" means the right to sell or otherwise distribute Admission
Tickets.
"Advertising" means, collectively, all advertising, sponsorship and promotional activity,
Signage, designations (including "pouring rights" or similar designations), rights of exclusivity
and priority, and messages and displays of every kind and nature, whether now existing or
developed in the future and whether or not in the current contemplation of the Parties, including
permanent, non -permanent and transitory Signage or advertising displayed on permanent or non-
permanent advertising panels or on structures, fixtures or equipment (such as scoreboard
advertising and canopy advertising) whether within or on the exterior of the Baseball Stadium or
elsewhere in or around the Stadium Premises and all other Signage; audio or video public
address advertising and message board advertising; programs; electronic insertion and other
forms of virtual advertising; sponsor -identified projected images; advertising on or in schedules,
Admission Tickets and yearbooks; all other print and display advertising; promotional events
sponsored by advertisers; advertising display items worn or carried by concessionaires or
personnel engaged in the operation of any Stadium Event; and logos, slogans, uses of Marks or
other forms of advertising affixed to or included with cups, hats, t -shirts or other items; Field -
related advertising; advertising through Media Rights; and other concession, promotional or
premium items.
"Advertising Rights" means the right to display, control, conduct, license, permit, sell
and enter into agreements regarding the display of Advertising.
"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.
"Affordable Seats" means at least 81,000 individual tickets for regular season MLB
Home Games each season, priced at no more than $15 per ticket in the first MLB season in the
Baseball Stadium. The price of those tickets may be increased in subsequent seasons, provided
that the price in any season shall not reflect a greater than 3.5% cumulative annual growth rate
from the initial $15 price (e.g., the price in the third season shall not exceed $16.07).
"A 2plicable Law" means any applicable law, statute, code
order, charter, resolution, order, rule, regulation, judgment, decree,
permit, or license of any Governmental Authority, now existing or
promulgated, entered, or issued.
"Arbitration" is defined in Section 18.1.
"Arbitration Panel" is defined in Section 18.1.
"Arbitrator" is defined in Section 18.1.
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ordinance, administrative
writ, injunction, franchise,
hereafter enacted, adopted,
"Baseball Stadium" means the stadium being constructed on the Baseball Stadium Site
pursuant to the Construction Administration Agreement.
"Baseball Stadium Site" is defined in the Construction Administration Agreement.
"Business Day" means any day other than a Saturday, Sunday or legal or bank holiday in
the County or the City. If any time period set forth in this Agreement expires on a day other than
a Business Day, such period shall be extended to and through the next succeeding Business Day.
"Capital Improvements" means improvements to the Stadium Premises of a character
required to be capitalized under generally accepted accounting principles and which include
Emergency Capital Repairs and Necessary Improvements but exclude Maintenance and Repairs.
"Capital Improvement Threshold Amount" means (a) with respect to the first Operating
Year, $400,000, and (b) with respect to each Operating Year thereafter, the prior Operating
Year's Capital Improvement Threshold Amount increased by 5%.
"Capital Reserve Fund" means a segregated account owned by the County and held by a
Qualified Trustee from which Capital Improvements will be paid as described in Section 9.3.
"Casualty" is defined in Section 11.1.
"Casualty Ex ep nses" is defined in Section 11.2.
"Casualtypair Work" is defined in Section 11.1.
"City" is defined in the Preamble to this Agreement.
"City Parking Agreement" means the City Parking Agreement between the City, the
County and the Operator dated as of the date of this Agreement, as it may be amended and/or
restated.
"City Provisions" means Article III; Sections 4.5, 4.6(b), 4.14 and 4.16; Article V;
Article VI; Article VII; Article VIII; Sections 9.3-9.5; the relevant provisions of Section 10.1(b),
Article XI, Article XII; XIII; Article XIV; Article XV; Article XVI; Article XVII; Article XVIII;
the relevant provisions of Article XIX; and the related defined terms in this Article I.
"City Representative" is defined in Section 19.10.
"Collateral Assi mg tent" means any pledge, collateral assignment or other security
interest or agreement by which all or any portion of the Operator's interests or rights under this
Agreement, including any of the Operating Rights, is pledged, encumbered, collaterally assigned
or transferred to secure a debt or other obligation.
"Community Event" means an amateur athletic, public service or other non-profit event
that is conducted or sponsored by a Government Party at the Stadium Premises pursuant to
Article VI and which is not undertaken for commercial purposes (i.e., there is no admission
charge, use fee or other consideration payable in connection with such event, other than amounts
payable to designated charities).
"Community Event Date" is defined in Section 6.1.1.
"Community Event Ex enses" is defined in Section 6.1.4.
"Community Event Proceeds" is defined in Section 6.1.3.
"Community Reserved Date" is defined in Section 6.1.2.
"Community Suite" is defined in Section 7.3.
"Concessions" means, collectively, food, beverages (both alcoholic and non-alcoholic)
("Beverage"), souvenirs, apparel, novelties, publications and merchandise and other items,
goods, equipment (including mechanical, electrical or computerized amusement devices), and
wares.
"Concessions Rights" means the right to sell, display, distribute and store Concessions
within the Stadium Premises, whether from shops, kiosks, individual vendors circulating
throughout the Stadium Premises, restaurants, bars, clubs, Suites, party rooms, dining rooms or
other permanent or temporary facilities, and to conduct catering and banquet sales and services,
both during Stadium Events and on a year-round basis.
"Condemnation Action" means a taking by any Governmental Authority (or other Person
with power of eminent domain) by exercise of any right of eminent domain or by appropriation
or condemnation, or an acquisition by any Governmental Authority (or other Person with power
of eminent domain) by threat of condemnation or through a private purchase in lieu thereof.
"Condemnation Award" means all sums, amounts or other compensation payable to the
Parties as a result of or in connection with any Condemnation Action.
"Construction Administration Agreement" means the Agreement among the County, the
City and the Stadium Developer dated as of the date of this Agreement, as it may be amended
and/or restated.
"County" is defined in the Preamble to this Agreement.
"County Representative" is defined in Section 19.10.
"Default" means a Government Party Default or Operator Default.
"Dispute" is defined in Section I S.1.
"Emergency Capital Repairs" means a Capital Improvement that must be completed
immediately and without prior consent of the County Representative or City Representative in
order to: (i) comply with a notice of violation or similar order issued by a Governmental
Authority that requires that a Necessary Improvement be completed prior to the annual review
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process set forth in Section 9.5(3) herein, (ii) to protect public safety and welfare, (iii) to prevent
unnecessary expense that would otherwise occur if the repair was not conducted immediately, or
(iv) to ensure all systems required to operate the Baseball Stadium for its intended use are
functioning.
"Entire Site" is defined in the Construction Administration Agreement.
"Event Specific Concessions" is defined in Section 6.1.6.
"Exclusive Areas" means all, or portions of, areas of the Stadium Premises that are not
intended for use by the general public, including the following: (i) areas used by the Operator,
the Team and concessionaires as office space and for event personnel; (ii) storage areas and
offices for managers, coaches, trainers, equipment managers and related personnel of the Team;
(iii) Team and auxiliary clubhouses, locker rooms and practice, training and medical facilities
(including all weight training and exercise rooms, x-ray rooms, equipment rooms, video rooms,
batting cages, auditorium, cafeteria, players' lounge, family lounge and related facilities); (iv) the
production, scoreboard and broadcast operations room and related facilities and equipment; (v)
separate umpire, baseball operations and in -game entertainer offices and dressing rooms; (vi)
ticket offices; (vii) Suites and private club rooms and lounges; and (viii) areas that have been
exclusively licensed or otherwise committed for use by Users or Service Providers.
"Exculpatory and Non -Discrimination Language" means the language set forth in the
following paragraph with the name of the exculpating party inserted into the blanks:
acknowledges that this Agreement imposes no contractual obligations
upon Miami -Dade County or the City of Miami, and that shall not look to
or proceed against such County or City (or any of their respective officials, employees,
agents or consultants) with respect to any default under this Agreement. In performing
any services at the Stadium Premises under this Agreement, shall not
discriminate against any worker, employee or applicant, or any member of the public
because of race, sex, marital status, color, creed, religion, national or ethnic origin,
ancestry or disability.
"Field" means the playing surface (including field lighting, foul poles, backstop, warning
track, bullpens, dugouts, foul territories and perimeter walls) located inside of the Baseball
Stadium.
"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
5
another Force Majeure event beyond the reasonable control and without the fault of the Party
claiming an excuse from performance.
"Funding Ratios" means (a) with respect to the County, a fraction having a numerator
equal to the County's financial contribution to the Baseball Stadium Project pursuant to Sections
3.8 (Public Infrastructure), 6.2(x) (County Funding) and 6.5.1 and 6.5.2 (Cost Overruns) of the
Construction Administration Agreement and a denominator equal to the Total Project Costs; (b)
with respect to the City, a fraction having a numerator equal to the City's financial contribution
to the Baseball Stadium Project pursuant to Sections 3.8 (Public Infrastructure), 6.3 (City
Funding) and 6.5.1 and 6.5.2 (Cost Overruns) of the Construction Administration Agreement and
a denominator equal to the Total Project Costs; and (c) with respect to the Operator, a fraction
having a numerator equal to the Team Affiliates' financial contribution to the Baseball Stadium
Project pursuant to Sections 6.4 (Stadium Developer Funding) and 6.5.1 and 6.5.2 (Cost
Overruns) of the Construction Administration Agreement and a denominator equal to the Total
Project Costs. In addition, the Operator's Funding Ratio contribution also shall include a product
equal to: $35,000,000 times a number equal to (i) the number of years lapsed under the term of
this Agreement, divided by (ii) the term of this Agreement; and the County's Funding Ratio
contribution shall include a product equal to: $35,000,000 times a number equal to (i) the term of
this Agreement minus the number of years lapsed in the term of this Agreement, divided by (ii)
the term of this Agreement. For purposes of the foregoing, the County's and City's financial
contributions pursuant to Section 3.8 of the Construction Administration Agreement shall not
include amounts they would have otherwise expended if there was no Baseball Stadium Project.
As used herein, "Total Project Costs" means the sum of the numerators set forth in (a), (b) and
(c) above, plus the amounts referenced in the second sentence of this paragraph.
"Government Entities" means, collectively, the City, the County, each County and City
agency, commission, division, subdivision, department, instrumentality or other body or entity,
and their respective Affiliates.
"Government Indemnitees" is defined in Section 13.1.
"Government Party" means each of the County and the City.
"Government Party Default" is defined in Section 17.2.
"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 Representative" is defined in Section 19.10.
"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.
"Insurance Escrow Agent" is defined in Section 11.2(a).
"Insurance Escrow Agreement" is defined in Section 11.2(a).
"Insurance Policies" is defined in Section 10.1.
"Losses" is defined in Section 13.1.
"Maintenance and Repairs" means work, labor and materials required in the ordinary
course of business to be performed and used to: (i) maintain in good, clean working order, and,
repair as a result of ordinary wear and tear, the entire Stadium Premises, including, but not
limited to, the Baseball Stadium, plaza, retractable roof, field and lighting features, safety
features, and all structures, components, systems, fixtures, landscaping, and furnishings
contained therein, (ii) replace, at the end of their economic life cycle, those components of the
Baseball Stadium whose reasonably expected economic life at the time of original installation
was two years or less, or (iii) conduct routine and preventative maintenance consistent with
manufacturer -provided warranty, maintenance, cleaning and best engineering and facility
management practices. All Maintenance and Repairs must be conducted consistent with the
maintenance and repair standards of Major League Baseball facilities. Maintenance and Repairs
do not include Necessary Improvements or Emergency Capital Repairs.
"Major League Baseball" means, individually and collectively, the Office of the
Commissioner of Baseball, the Commissioner of Baseball, the Major League clubs, Major
League Baseball Enterprises, Inc., Major League Baseball Properties, Inc., Major League
Baseball Properties Canada, Inc., Major League Baseball Productions, MLB Advanced Media,
Inc., MLB Advanced Media, L.P., MLB Media Holdings, L.P., MLB Media Holdings, Inc.,
MLB Online Services, Inc., each of their respective present and future affiliates, assigns and
successors, and any other entity owned equally by the Major League Baseball clubs.
"Major Necessary Improvements" means Necessary Improvements for major systems
and components of the Stadium Premises with their correspondent expected economic and/or
physical life cycle, reflected on Exhibit "A" attached, as such may be revised and updated by the
Parties before Substantial Completion, and that serve as a general guideline and an approximate
timeline in the approval process set forth in Section 9.5(3).
"Major Sponsor" means a Person that spends at least the following amounts in any
applicable Operating Year with the Team Affiliates (collectively) for Advertising or other rights
or benefits relating to the Team Affiliates and/or the Baseball Stadium: (i) $500,000 in any of
Operating Years 1-15, (ii) $525,000 in any of Operating Years 16-25, or (iii) $600,000 in any of
Operating Years 26-35.
"Marks" means any and all trademarks, service marks, copyrights, names, symbols,
words, logos, colors, designs, slogans, emblems, mottos, brands, designations, trade dress,
domain names and other intellectual property (and any combination thereof) in any tangible
medium.
"Media Rights" means the right to control, conduct, sell, license, publish, authorize and
grant concessions and enter into agreements with respect to all media, means, technology,
distribution channels or processes, whether now existing or hereafter developed and whether or
not in the present contemplation of the Parties, for preserving, transmitting, disseminating or
reproducing for hearing or viewing, Stadium Events and descriptions or accounts of or
7
information with respect to Stadium Events, including by Internet, radio and television
broadcasting, print, film, photographs, video, tape reproductions, satellite, closed circuit, cable,
digital, broadband, DVD, satellite, pay television, and all comparable media.
"MLB Home Games" means each of the Team's scheduled or rescheduled baseball
games at the Baseball Stadium, including exhibition, spring training, regular season, playoff and
World Series games.
"MLB Jewel Events" means the MLB All-Star Game (and related events), World
Baseball Classic and other Major League Baseball -controlled events expected to have an
attendance of more than 5,000 people scheduled or rescheduled at the Baseball Stadium.
"MLB Reserved Dates" means all dates (i) on which MLB Home Games or MLB Jewel
Events have been scheduled (or rescheduled) or (ii) that the Team is required to reserve for the
scheduling of MLB Home Games (including potential post -season games) or MLB Jewel Events
under MLB Rules and Regulations
"MLB 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 generally 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.
"MLS Home Games" is defined in Section 5.2(c).
"MLS Reserved Dates" is defined in Section 5.2(c).
"Naming Rights" means the right to (i) name and re -name the Stadium Premises and any
portion thereof, including the right to grant the Stadium Name, and (ii) contract from time to
time with any Person or Persons on such terms as the Operator determines with respect to the
naming of or attribution of the Stadium Premises or any portion thereof (a "Naming Rights
Agreement").
"Necessary Improvements" means Emergency Capital Repairs and those Capital
Improvements that are required (i) by Applicable Law; (ii) to obtain required insurance at
commercially reasonable rates; (iii) by the manufacturer, supplier or installer of any component,
system or equipment to preserve warranty rights or for compliance with safety requirements; (iv)
to repair or restore components of the Stadium Premises that are damaged or destroyed by
Casualty, to the extent not covered by insurance (including the payment of deductibles from the
Capital Reserve Fund as provided for in this Agreement); or (v) to replace (including
replacements via equipment leases paid from the Capital Reserve Fund, as approved by all
Parties) components of the Stadium Premises at the end of their economic life cycle.
"New Agreement" is defined in Section 14.8(e).
"New Agreement Notice" is defined in Section t4.8(e).
"Non -Relocation Agreement" means the Non -Relocation Agreement among the Team,
the County and the City dated as of the date of this Agreement, as it may be amended and/or
restated.
"Operating Rights" is defined in Section 4.1.
"Operating Year" means (i) the period commencing on the Substantial Completion Date
and ending on the next succeeding October 31 and (ii) each subsequent twelve (12) month period
during the Term commencing on the November 1 following the Substantial Completion Date and
ending on the next succeeding October 31; provided that if this Agreement terminates on a date
other than October 31, there shall be a partial last Operating Year ending on the date of such
termination.
"O ep rator' means Marlins Stadium Operator, LLC, a Delaware limited liability
company, and its permitted successors and assigns.
"Operator Indemnitees" is defined in Section 13.2.
"Operator Default" is defined in Section 17.1.
"Operator Reserved Dates" is defined in Section 6.1.2.
"Parking Facilities" is defined in the City Parking Agreement.
"Partial Taking" is defined in Section 12.2.
"Parties" means, collectively, the City, the County and the Operator.
"Person" means any natural person, firm, partnership, association, corporation, limited
liability company, trust, public body, authority, governmental unit or other entity.
"Plaza" means an area on the western portion of the Baseball Stadium Site, more
particularly described in the Construction Administration Agreement, that will be open to the
general public as provided in Section 4.17 of this Agreement.
"Premium Seating" means seating in the Baseball Stadium for which a premium is
charged above the generally applicable ticket price for rights that include access to amenities not
available to purchasers of general admissions tickets, such as food delivery service, special
access to seats, and exclusive bars, restaurants and lounge areas; such seating shall include Suites
and seats sold to the public as "club seats," "dugout seats" and "field boxes" (or any replacement
terms adopted in the future).
"Promotional Rights" means and includes any and all of the following rights as applied
to, arising out of or connected in any way with Major League Baseball, the Team Affiliates, the
0
Proprietary Indicia, the Team's Major League Baseball franchise, the Baseball Stadium, the
Baseball Stadium Site, and Stadium Events and other permitted uses of the Stadium Premises:
(a) rights of exploitation, in any format now known or later developed, through
advertising, promotions, marketing, merchandising, licensing, food services, franchising,
sponsorship, publications, hospitality events or through any other type of commercial or
promotional means, including but not limited to advertising by interior, exterior or perimeter
signage, through printed matter such as programs, posters, letterhead, press releases, newsletters,
tickets, photographs, franchising, concessions, restaurants, party rooms, uniforms, schedules,
displays, sampling, premiums and selling rights of any nature, the right to organize and conduct
promotional competitions, to give prizes, awards, giveaways, and to conscript official music,
video or other related data or information;
(b) media rights, in any format now known or later developed, including but not
limited to the right to broadcast, transmit, display and record images and recordings, in any and
all media now known or hereafter devised, including but not limited to radio, television, cable,
satellite and internet;
(c) Naming Rights; and
(d) rights to create, use, promote and commercialize any representation of the
Baseball Stadium, in whole or in part, or the name or contents thereof, for licensing,
promotional, publicity, general advertising and other suitable purposes, including but not limited
to the creation, use, promotion and commercialization of text, data, images, photographs,
illustrations, animation and graphics, video or audio segments of any nature, in any media or
embodiment, now known or later developed; and all other rights of marketing and advertising,
exploitation, in any format, now known or later developed, and associated promotional
opportunities.
"Property Insurance Policy" is defined in Section 10.1.
"Property Insurance Proceeds" means any proceeds paid pursuant to the Property
Insurance Policy and designated for the repair, restoration, replacement or rebuilding of all or
any part of the Stadium Premises.
"Proprietary Indicia" means all Marks, together with any other copyrighted or
copyrightable properties, in any format now known or later developed, that are or become owned
or controlled by a Team Affiliate or Major League Baseball, which are or become commercially
identified or associated with a Team Affiliate or Major League Baseball, or are now or hereafter
licensed by or to a Team Affiliate or Major League Baseball.
"Qualified Trustee" means a financial institution qualified to act as a depository, jointly
appointed by the County, the City and the Operator for the purpose of administering the Capital
Reserve Fund. The fees charged by the Qualified Trustee shall be funded from the interest
earnings on deposit in the Capital Reserve Fund.
"QSR" 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
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with waitered service or Latin restaurants that may serve croquettes or pastries from a counter or
window (such as Cafe Versailles and La Carretta).
"Renewal Term" is defined in Section 3.2.
"Retail Rights" means the right to sell retail goods, merchandise and products (including
souvenirs, novelty items and licensed products) to the general public at the Stadium Premises
and to operate areas at the Stadium Premises, including at the Team Store(s) and outlets open to
the general public on a year-round basis from the Stadium Premises, for such purposes.
"Revenue Rights" is defined in Section 4.3.
"Seat Rights" means the right to sell or license Admission Tickets, Premium Seating and
other rights to view any or all Stadium Events, including personal seat licenses and similar
rights.
"Secured Party" means any holder or beneficiary of any Collateral Assignment, which
may include the trustee under a security agreement or indenture, the collateral or administrative
agent under a credit facility or note purchase agreement, the holders of any notes, bonds or other
instruments secured thereby, or any insurer or guarantor of any of the foregoing (together with
any successor or transferee thereof).
"Service Agreement" is defined in Section 4.2.
"Service Provider" means any Person with whom the Operator enters into a Service
Agreement for the purpose of performing work or providing services, labor, materials or supplies
with respect to all or any part of the Stadium Premises.
"Si_gnage" means all signage (whether permanent or temporary) in or on the Stadium
Premises, including scoreboards, jumbotron or other replay screens, banners, fascia boards,
displays, message centers, advertisements, signs and marquee signs.
"Soccer Stadium" is defined in Article V.
"Soccer Team" means an entity that has been granted a franchise by Major League
Soccer whose home territory is the City of Miami and whose home stadium is the Soccer
Stadium. For purposes of the restrictions on the Soccer Team in Article V, "Soccer Team" shall
include any Person that operates, manages or otherwise uses the Soccer Stadium.
"Sports User" is defined in Section 6.1.2.
"Stadium Agreements" means, collectively, this Agreement, the Construction
Administration Agreement, the Non -Relocation Agreement, the City Parking Agreement and the
Assurance Agreement.
"Stadium Developer" means Marlins Stadium Developer, LLC, a Delaware limited
liability company, and its permitted successors and assigns.
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"Stadium Event" means any event held at the Stadium Premises, including MLB Home
Games; MLB Jewel Events; Team practices, exhibitions, clinics, promotions and fan activities;
and other professional or amateur sporting events or exhibitions, concerts, trade shows,
conventions, general audience, family or other targeted audience shows, performances or
exhibitions. Notwithstanding the foregoing, Stadium Events shall not include Community
Events.
"Stadium Image Rights" means the right to (i) use or display any Symbolic
Representation or other visual depiction of the Stadium Premises and all associated Marks in
connection with (A) the design, manufacture, production, sale, use, distribution, importation,
exportation, advertisement and display of goods or services bearing one or more Symbolic
Representations, including hats, t -shirts, sweatshirts, posters, models and other souvenirs and
apparel, and (B) the promotion of the Baseball Stadium and the production, promotion, telecast
or other exploitation in any medium, whether now known or hereafter created, of Stadium
Events, and (ii) contract from time to time with any Person or Persons on such terms as the
Operator determines with respect to the use and enjoyment of any Symbolic Representation and
any associated Mark.
"Stadium Information Systems" means, collectively, the public address system,
scoreboards, video boards, ribbon boards, matrix boards, message boards and similar systems
(and all related control and equipment rooms) located in the Stadium Premises.
"Stadium Name" means the principal name given to the Baseball Stadium in any Naming
Rights Agreement and any replacements thereof from time to time.
"Stadium Premises" means the Baseball Stadium, the Baseball Stadium Site (including
the Plaza) and all other improvements from time to time constructed or otherwise located on the
Baseball Stadium Site in accordance with this Agreement, together with all rights, privileges,
easements and appurtenances relating thereto.
"State" means the State of Florida.
"Substantial Completion Date" means the date upon which Substantial Completion
occurs as provided in the Construction Administration Agreement.
"Suites" means the private viewing boxes to be designed, constructed, furnished and
equipped as part of the Baseball Stadium.
"Symbolic Representation" means any two-dimensional or three-dimensional replica,
model, artistic, graphic or photographic rendering or other visual representation of the Stadium
Premises or any portion thereof.
"Targeted Tax" means any taxes or government charges on: (i) receipts from purchasers,
lessees or licensees of Suites, of amounts in excess of the face value of the admission tickets for
seats in the Suites (excluding any generally applicable State sales tax on those amounts); (ii) the
activities conducted by a Team Affiliate at the Stadium Premises or the income from such
activities unless the tax or governmental charge applies to the same or similar activities
conducted by all or a broad range of businesses or persons within the County or the City or the
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income from such activities; (iii) receipts from the sale of any tickets (including tickets in Suites)
or other rights to admission to the Stadium Premises unless the tax or governmental charge is one
of general application levied against or imposed generally on receipts from the sale of tickets or
other rights to admission to sports, amusement and entertainment facilities within the County or
City; (iv) the gross receipts or incomes of players, coaches, enterprises, businesses, teams, or
team owners who use the Stadium Premises unless the tax or governmental charge is one of
general application levied against or imposed on the gross receipts or incomes of people,
enterprises, businesses, or owners of enterprises or businesses, as the case may be, within the
jurisdiction of the County or City; (v) any capital gain on or appreciation in the investment in a
Team Affiliate unless the tax or governmental charge is one of general application to investments
in enterprises or businesses of any type within the jurisdiction of the County or City; or (vi) the
sale of the Major League Baseball franchise or an ownership interest in a Team Affiliate unless
the tax or governmental charge is one of general application to the sale of ownership interests in
enterprises or businesses of any type within the jurisdiction of the County or City.
"Tax" means (i) any general or special, ordinary or extraordinary, tax, imposition,
assessment, levy, usage fee, excise, deduction, withholding or similar charge, however measured,
regardless of the manner of imposition or beneficiary, that is imposed by any Governmental
Authority and any and all liabilities (including interest, fines, penalties or additions with respect
to any of the foregoing) with respect to the foregoing, and (ii) any transferee, successor, joint and
several, contractual or other liability (including liability pursuant to Treasury Regulations §
1.1502-6 (or any similar provision of state, local or non -U.S. law)) in respect of any item
described in clause (i).
"Team" means Florida Marlins, L.P., a Delaware limited partnership which owns a Major
League Baseball club, and its permitted successors and assigns.
"Team Affiliate" means the Operator, the Team, the Stadium Developer and any other
entity that is an Affiliate of the Team, the Operator or the Stadium Developer.
"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 Operator, the Team, or any of their
licensees, Users, Service Providers or Affiliates, regardless of the legal ownership for non-
income tax purposes.
"Team Foundation" is defined in Section 7.1.
"Team Store" means one or more retail stores open during Stadium Events and to the
general public on a year-round basis to which access may be obtained without an Admission
Ticket to a Stadium Event, and which sell, among other items, sports related apparel and
merchandise associated with the Team and other sports teams.
"Temporary Taking" is defined in Section 12.2.
"Term" is defined in Section 3.1.
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"Ticket Operations" means all ticket facilities of every kind and description, whether now
existing or hereafter developed and all rights (including Advertising with respect to Admission
Tickets to Stadium Events) relating thereto, including ticket windows and ticket sale facilities
(such as computerized ticket equipment systems), and all ticket operation functions, including
the printing, selling and distributing of all Admission Tickets to all Stadium Events, and the
printing and distributing of press credentials.
"Ticket Operations Rights" means the right to the full use and enjoyment of, and right to
control, provide, conduct, license, grant concessions with respect to and contract for, Ticket
Operations with respect to the Stadium Premises or any Stadium Event, including the right to sell
or license the right to provide Ticket Operations on an exclusive or nonexclusive basis.
"Total Taking is defined in Section 12.1.
"Transfer" is defined in Section 14.1.
"Unusable Condition" means the existence of any one of the following conditions due to
any Condemnation Action or any Casualty:
(a) Major League Baseball determines the condition of the Stadium Premises
is such that the MLB Rules and Regulations, or a specific Major League Baseball directive,
prohibit the playing of MLB Home Games at the Baseball Stadium; or
(b) a Governmental Authority determines the use or occupancy of any
material portion of the Stadium Premises (excluding the Plaza) is: (i) not permitted under any
Applicable Law or (ii) is unsafe for customary usage.
"Use Agreement" is defined in Section 4.2.
"Use Rights" means the right to license, sublicense or otherwise grant Users the right to
use the Stadium Premises (or any portion thereof), and to enter into Use Agreements.
"User" means the Team and any other Person that is granted by the Operator the right to
use or occupy any part of the Stadium Premises.
ARTICLE II
ENGAGEMENT OF OPERATOR
The Operator shall be the sole and exclusive manager and operator of the Stadium
Premises during the Term of this Agreement with sole responsibility and authority and full
control and discretion in the operation, direction, management and supervision of the Stadium
Premises, subject to and as more fully described in this Agreement. The Operator is an
independent contractor and shall have no authority to bind the County. Except as provided in
Article VI with respect to Community Events, the Government Parties shall not, and shall not
authorize or grant any Person other than the Operator any right to, operate, manage, coordinate,
control, use or supervise the Stadium Premises (or any portion thereof) at any time during the
Term.
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ARTICLE III
TERM
Section 3.1 Term. The term of this Agreement shall commence on the date hereof and
shall expire on October 31 in the year which is the later of (a) the year in which the thirty-fifth
(35t) annual anniversary of the Substantial Completion Date occurs or (b) the latest year (but in
no event later than 2052) in which any of the County Bonds are scheduled to mature upon their
initial issuance (or such earlier date on which all of the County Bonds have been repaid except
pursuant to a refinancing, in which case this Agreement shall terminate on the earlier of the
original maturity date of all the originally issued County Bonds or the maturity date of any bonds
that refund or refinance the County Bonds), unless sooner terminated pursuant to any applicable
provision of this Agreement (such term as it may be so terminated, or as it may be extended
pursuant to Section 3.2, being referred to herein as the "Term"). Notwithstanding anything to the
contrary in this Agreement, the Operator's obligations with respect to the management, operation
and maintenance of the Stadium Premises shall commence upon the Substantial Completion
Date.
Section 3.2 Options to Extend. The Operator shall have the right (but not the
obligation) to extend the Term on the same terms and conditions set forth in this Agreement
(except as expressly provided in this Agreement) for two additional terms of five (5) years each
(each, a "Renewal Term"); provided that the Operator shall not have the right to extend the Term
if the Operator has received from the County a written notice of an Operator Default prior to the
time of exercise and such Operator Default continues to exist at the time of exercise. The
Operator shall exercise its right to extend the Term by delivering written notice of such exercise
to the County and the City no later than two (2) years prior to the expiration of the initial Term or
the first Renewal Term.
ARTICLE IV
OPERATOR'S RIGHTS AND OBLIGATIONS
Section 4.1 Operation. The Operator shall have the exclusive right, authority,
responsibility and obligation to operate, manage, coordinate, control, use and supervise the
conduct and operation of the business and affairs pertaining to or necessary for the proper
operation, maintenance and management of the Stadium Premises on a year-round basis, all in
accordance with the terms and provisions of this Agreement (the "Operating Rights"). The
Operator shall be responsible for operating and managing the Stadium Premises for all Stadium
Events (including Community Events), in accordance with the standards of service and quality
generally accepted within the Major League Baseball professional ballpark industry, and with
due regard for the health and safety of Persons lawfully on the Stadium Premises. The Operating
Rights and obligations shall include the following:
(a) scheduling and contracting for all Stadium Events and establishing all
rules and regulations respecting the Stadium Premises and Stadium Events;
(b) employment (as agents, employees or independent contractors),
termination, supervision and control of all personnel (whether full-time, part-time or temporary)
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that the Operator determines to be necessary for the operation of the Stadium Premises, including
ticket sellers, ticket takers, maintenance crews and security personnel (other than public safety
personnel as described in Section 4.15); and determination of all compensation, benefits and
other matters with regard to such personnel;
(c) selling and establishing the prices, rates, fees or other charges for goods,
services or rights (including Concessions and Seat Rights for all Stadium Events) available at or
with respect to the Stadium Premises;
(d) marketing and promoting Stadium Events, and identifying and contracting
with all contractors and vendors in connection with, and managing, coordinating and
supervising, all Ticket Operations, Concessions and Advertising;
(e) procuring, negotiating and entering into contracts for the furnishing of all
utilities, labor, equipment, services and supplies necessary for the operation of the Stadium
Premises;
(f) commencing, defending and settling such legal actions or proceedings
concerning the operation of the Stadium Premises as are necessary or required in the opinion of
the Operator, and retaining counsel in connection therewith, provided that the Operator shall not
defend or settle actions or proceedings against the County or City except as provided in Article
XIII;
(g) controlling the issuance of and issuing all credentials for Stadium Events;
(h) preparing the Stadium Premises for Stadium Events and converting the
Stadium Premises from one type of Stadium Event to another;
(i) performing, or causing to be performed, all Maintenance and Repairs,
Emergency Capital Repairs and Necessary Improvements in accordance with Article IX; and
0) operating the Stadium Premises in compliance with Applicable Law,
including by maintaining or causing to be maintained all necessary licenses, permits and
authorizations for the operation of the Stadium Premises.
Section 4.2 Use and Service Agreements. The Operator shall have the exclusive right
to negotiate, execute and perform use agreements, licenses and other agreements ("Use
Agreements"): (a) with the Team, provided that such Use Agreement is consistent with the
terms of the Non -Relocation Agreement; or (b) with other Persons who desire to schedule
events, performances, telecasts, broadcasts or other transmissions in, from or to the Stadium
Premises, or any part thereof, or who desire otherwise to license the use of or to occupy the
Stadium Premises or any part thereof. The Operator shall further have the exclusive right to
negotiate, execute and perform agreements with Service Providers that pertain to the service,
maintenance and/or operation of the Stadium Premises or any part thereof ("Service
Agreements"). Each Use Agreement and Service Agreement shall be in writing. No Use
Agreement or Service Agreement shall extend beyond the Term, including any early termination
of the Term pursuant to this Agreement. Each Service Agreement providing for payments to the
Service Provider of more than $250,000 (such amount to be increased each year by the
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percentage increase in the Consumer Price Index for All Urban Consumers in the Miami area),
including the agreement with the principal concessionaire for the Baseball Stadium, and each
Use Agreement granting the User the right to conduct a Stadium Event open to the general public
shall contain Exculpatory and Non -Discrimination Language. Additionally, each Service
Agreement that will be funded with amounts in the Capital Reserve Fund shall include a
representation from the Service Provider that it is not on the County debarment list pursuant to
Section 10-38 of the County Code. The Operator shall provide the County Representative copies
of such Service Agreements upon request of the County Representative. The Operator shall
comply with the County's Small Business Enterprise (SBE) Program in awarding Service
Agreements. The Operator shall create business opportunities for SBEs with a view to creating a
minimum participation goal for SBEs of 15 percent of the total value of all Service Agreements.
The final SBE goal shall be established by the County in accordance with the process set forth in
the SBE Program provisions. The SBE goal shall be subject to final approval by the Board and
shall be submitted to the Board simultaneously with the final terms of the Outreach Program, as
specified in Section 7.2 of the Agreement. The Operator shall comply with the terms of the SBE
Program and shall submit annual compliance reports to SBD. Any SBE which qualifies shall also
be counted towards satisfying the local business initiatives described in Section 7.2 below.
Section 4.3 Revenue Rights. The Operator shall have the sole and exclusive right to
exercise, control, license, sell, authorize, establish the prices and other terms for, and contract
with respect to all rights, revenues and rights to revenues arising from or related to the use,
occupancy, operation, exploitation or existence of the Stadium Premises from all sources,
whether now existing or developed in the future and whether or not in the current contemplation
of the Parties (collectively, "Revenue Rights"), in each case on such terms and conditions as the
Operator shall determine in its sole discretion. Subject to Section 6.3, the Operator shall have
the sole and exclusive right to collect, receive and retain all revenues and other consideration of
every kind and description arising from or relating to the Revenue Rights. The Revenue Rights
shall include the following rights, and the revenues and rights to revenues arising from the
exercise, control, license, sale, authorization or operation of such rights: (i) Admission Tickets
Rights; (ii) Advertising Rights; (iii) Stadium Image Rights; (iv) Media Rights; (v) Concessions
Rights; (vi) Naming Rights; (vii) Retail Rights; (viii) Seat Rights; (ix) Ticket Operations Rights;
(x) Use Rights; (xi) rights to operate the Stadium Information Systems; (xii) rights to revenues
from the exploitation of all other intellectual property owned by or licensed to the Operator and
associated with the Stadium Premises; and (xiii) whether or not included in any of the forgoing,
Promotional Rights. Notwithstanding the foregoing, the Revenue Rights shall not include any
rights that are owned or held by the Team (e.g., Media Rights to Team games) or another Team
Affiliate.
Section 4.4 Concessions. The Operator's rights with respect to Concessions Rights
shall extend to all areas of the Stadium Premises (including areas that are open to the general
public from the Stadium Premises), and shall include the rights to (a) from time to time select
and contract with one or more concessionaires (or to itself act as concessionaire) to operate and
be responsible for all Concessions operations in the Stadium Premises; (b) administer any such
Concessions agreements; (c) determine the types, brands and marketing of all Concessions sold
in the Stadium Premises, and the prices to be charged for such Concessions; and (d) determine
the location of Concessions facilities within the Stadium Premises.
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Section 4.5 Labor Peace. To protect the County's interest in ensuring that the Baseball
Stadium Project produces the funds necessary for repayment of the costs of indebtedness
incurred in the development and construction of the Baseball Stadium Project, the Operator shall
supply to the County prior to the opening of the Baseball Stadium a fully -executed labor peace
agreement between the entity which will operate the Stadium Premises food and Beverage
concessions and any labor organization in the Miami area that is actively engaged in representing
and attempting to represent Stadium Premises food and Beverage concession workers. The labor
peace agreement must be a valid agreement which prohibits the labor organization and its
members from engaging in any picketing, work stoppages, boycotts, or any other economic
interference with the Stadium Premises food and Beverage concessions for at least the first five
years of the operation of the Stadium Premises and must cover Stadium Premises food and
Beverage operations which are conducted by lessees or tenants or under management agreements
and Service and Use Agreements.
Section 4.6 Signage.
(a) The Operator's rights with respect to Advertising Rights shall include the
exclusive right to construct, operate and display Signage on the interior, exterior or other
portions of the Stadium Premises as the Operator deems necessary or desirable, in compliance
with Applicable Law, including laws pertaining to public decency.
(b) Prior to the Substantial Completion Date, the County and City shall
design, manufacture and install off-site traffic directional signage for the Baseball Stadium with
the number, location, design and content comparable to signage each has installed for other large
entertainment venues in the City. This obligation of the County and City shall not apply to any
directional signage controlled by the State or the federal government, provided that the County
and City shall assist the Team in its efforts to urge the State and federal government to provide
such signage. The County or City, as applicable, shall maintain, update and pay all costs for
such County and City controlled signage, except that such Parties shall have no obligation to pay
any costs associated with a change of the Stadium Name following the Substantial Completion
Date.
(c) The Stadium Premises shall include mutually agreed upon signage that
identifies the County both inside and outside the Baseball Stadium. By approving this
Agreement, the Board hereby waives the signage requirements set forth in the in the Building
Better Communities General Obligation Bond Program Administrative Rules.
Section 4.7 Naming Rights.
(a) The Operator shall have, subject to compliance with Applicable Law, the
exclusive right to sell, license or otherwise grant Naming Rights for the Term on such terms and
conditions as the Operator shall determine. The Operator must obtain the written approval of the
Stadium Name from the County Representative, which approval shall not be unreasonably
withheld, conditioned or delayed; provided that approval shall not be required for the name
(including the commonly known name and the parent company name, but excluding any name
associated with tobacco, adult entertainment or guns) of any (i) Fortune 1000 company or any of
its subsidiaries or their respective products, (ii) bank, (iii) cruise line, (iv) airline or (v) nationally
18
recognized Beverage company. When approval is required, the County Representative shall
approve or disapprove of a proposed Stadium Name within ten (10) Business Days after
receiving a request for approval from the Operator. If the County Representative does not
respond within such ten (10) Business Days, the proposed Stadium Name shall be deemed
approved. The County Representative may disapprove any Stadium Name that is in conflict with
standards of public decency, including association with tobacco or adult entertainment.
(b) Following receipt by the Government Parties of written notice from the
Operator of the determination of the Stadium Name, in accordance with this Section 4.7, or the
name of any portions of the Stadium Premises, the Government Parties shall use exclusively the
Stadium Name and, as appropriate, the name given to any portion of the Stadium Premises in all
correspondence, communications, advertising and promotion the Government Parties may
undertake with respect to the Stadium Premises, including in all press releases and in connection
with the promotion of the sale of Admission Tickets to any Community Event. In addition, the
Government Parties shall include the Stadium Name on all directional or other signage that is
installed by the County or City that refers to or identifies the Stadium Premises. The Operator
shall provide the Government Entities a non-exclusive license to use the Stadium Name and
Symbolic Representations for the purposes described in this Section 4.7(b), and to promote travel
and tourism and to publicize to its respective constituents the successful completion of the
construction of the Baseball Stadium Project.
Section 4.8 Scheduling. Subject to the Team's scheduling priority for MLB Home
Games and MLB Jewel Events and Article VI with respect to Community Events, the Operator
shall have the exclusive right and authority to schedule and book all Stadium Events.
Section 4.9 Annual Payment. In consideration for the Team's use of the Baseball
Stadium and the rights granted to the Operator under this Agreement, the Team shall remit to the
County an annual amount per Operating Year as provided in Section 7 of the Non -Relocation
Agreement. If the Operator elects to extend the Term pursuant to Section 3.2, prior to the start of
each Renewal Term the Operator and the County shall negotiate an annual amount payable by
the Operator or the Team to the County during such Renewal Term.
Section 4.10 Operating Expenses. Except for Community Event Expenses and as
otherwise expressly provided in this Agreement, the Operator shall be responsible for the
payment of all costs and expenses incurred by the Operator in managing and operating the
Stadium Premises, including game -day operations, security on the Baseball Stadium Site (as
provided in Section 4.16 with respect to Public Safety Personnel), utilities, custodial services,
premiums and deductibles (to the extent required by Articles X and XI) for the Insurance
Policies, and supplies and other consumable goods.
Section 4.11 Access Rights. The County hereby grants to, and covenants and agrees to
maintain for, the Operator, subject only to the access and entry rights expressly reserved for the
County under Article VI, the exclusive right to use and to authorize others to use, and
uninterrupted access for the Team Affiliates and their invitees to and from, the Stadium Premises
on a twenty-four (24) hour per day, year-round basis throughout the Term (the "Access Rights").
The County and City shall not take any actions that would disturb the Team Affiliates' quiet
enjoyment of the Stadium Premises or impede their ability to exercise the Operating Rights. The
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County shall not grant, permit or suffer to exist any right, claim or other Lien that materially
interferes (or could reasonably be expected to materially interfere) with the Access Rights, and
shall promptly discharge or terminate any such right, claim or lien.
Section 4.12 Administration. The Operator shall have the exclusive right to plan,
coordinate and administer the operation of the Stadium Premises, including the coordination of
the efforts of all parties involved in Stadium Premises operations, establishing and maintaining
procedures for payment of operating expenses, receipt of revenues, development and
implementation of accounting policies for the Stadium Premises, and coordination of the work of
any party performing services at the Stadium Premises.
Section 4.13 Transact Business. Notwithstanding anything to the contrary in this
Agreement, the Operator shall have the right to enter into contracts and transact business with
other Persons, including concessionaires, Affiliates of the Operator, Users and Service Providers,
for the performance of the Operator's obligations, duties and responsibilities under this
Agreement; provided, however, that such contracts shall not relieve the Operator of its
obligations, duties and responsibilities under this Agreement.
Section 4.14
County and City Acknowledging nt. Notwithstanding anything to the
contrary contained in this Agreement, neither the Operator nor any of its Affiliates,
subcontractors, licensees or delegates shall be required to (a) seek or obtain competitive bids or
proposals for, or competitively award, any agreements it enters into, purchases it makes or other
actions it takes with respect to the management, operation or use of the Stadium Premises, (b)
comply with or follow any County or City selection processes, procurement requirements or
similar procedures or requirements contained in the County Code, City Code or otherwise,
except that with respect to construction, the Operator and other Team Affiliates, subcontractors,
licensees or delegates shall comply with Applicable Law, including Chapter 255, Florida Statutes
and all of their respective obligations set forth in this Agreement, (c) comply with County or City
employment practices (other than those applicable to employers generally) or any County Code,
City Code or ordinance provisions uniquely governing the management or operation of public
projects, buildings, structures or works, or (d) except in connection with the Operator's
compliance with Applicable Law, obtain County or City approval of any of its actions, other than
where specifically provided for in this Agreement.
Section 4.15 Utility. The County shall use reasonable best efforts to assist the
Operator to secure utilities for the Stadium Premises at rates comparable to the County's reduced
bulk rates, if any.
Section 4.16 Public Safety Personnel. The Parties agree to the following terms, which
are hereby incorporated into this Agreement:
(a) Police Staffing. To the extent off-duty police staffing is available,
(i) the County Police Department will provide off-duty police staffing within the Baseball
Stadium Site for all MLB Home Games, MLB Jewel Events and all other Stadium Events having
an expected attendance of more than 5,000 people, and (ii) the City Police Department will
provide off-duty police staffing of all other areas of the Entire Site for MLB Home Games,
MLB Jewel Events and other Stadium Events having an expected attendance of more than 5,000
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people, all at the Stadium Operator's sole expense. The City will also provide off-duty police
staffing to provide police presence in the surrounding jurisdictional neighborhoods, streets, etc.
due to increased activity expected due to MLB Home Games, MLB Jewel Events and other
Stadium Events having an expected attendance of more than 5,000 people, at Stadium Operator's
sole expense. In the event either the County or the City Police Department does not have
sufficient off-duty police personnel to staff an event, as described above, then the department
that has additional off-duty police personnel shall fill the positions of the department that does
not have sufficient personnel. If neither Police Department has sufficient personnel to staff an
event, then the City, or the County, as the case may be, shall have the right to staff the event by
using third party agencies. In the event there are no police off-duty personnel available to staff
an event, the Stadium Operator shall be responsible for providing security for the event. For
each of the above described events staffed by City and County Policed Departments, a joint
command structure will be established between the City and the County to ensure cross -
coordination between the respective Police Departments. The Stadium Operator shall pay City
and County police personnel the hourly rates payable by City or County for such work. When
off-duty police officers are used in the staffing of an event, the Stadium Operator shall pay the
highest of the City or the County hourly rate payable to such police officers. Stadium
Operator's expense obligation shall be limited to the hourly rates paid by the City and the County
to the police personnel. For Community Events, the City and the County may provide off-duty
police services using their own forces inside and outside the Baseball Stadium Site. Nothing in
this section shall limit the City's Police Department's jurisdictional authority to respond to
emergencies or investigate crimes committed anywhere on the Stadium Premises.
(b) Fire Rescue Off -Duty Staffing. The City and the County will
jointly provide at Stadium Operator's sole expense, Fire Rescue off-duty staffing within the
Baseball Stadium Site. For each MLB Home Game, MLB Jewel Event and Stadium Event
having expected attendance of more than 5,000 people, staffing within the Baseball Stadium Site
will consist of at least one City and one County Fire Watch unit. Fire Rescue units shall be
provided equally from the City and County (one each, two each, etc., depending on the demand
for off-duty fire rescue service). This may consist of first aid stations, roving firefighters, etc., as
necessary for the event. A joint command structure, with a designee from each Fire Rescue
Department to act as the lead for each such Stadium Event, will be established. The lead from
each Fire Department will be in charge of cross -coordination of issues between the entities. City
protocols and radio systems will be used, with specific details to be formalized in a stadium -
specific protocol jointly written by the City and the County prior to Substantial Completion.
City and County fire rescue personnel will be paid at the hourly rates for off-duty work payable
by City or County, whichever is higher, and Stadium Operator's expense obligation shall be
limited to those hourly rates. Both the City and the County may elect to use their own Fire
Department within the Baseball Stadium Site for Community Events.
(c) Police and Fire Rescue staffing levels, hours and locations shall be
determined by the County or City Police and Fire Departments, as applicable, in accordance with
Applicable Law after consultation with the Operator.
Section 4.17 Plaza. The Operator shall be responsible for the operation and
maintenance of, and shall have the right to all revenues from, the Plaza to the same extent as the
other portions of the Stadium Premises. The Operator shall not construct any permanent
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structures in the Plaza that are not needed to support its roof or utility systems, except for (a)
structures that are part of restaurants or retail stores that are included in and ancillary to the uses
of the Baseball Stadium, and extend no more than an aggregate of 10,000 square feet into the
Plaza, and (b) lighting, benches, pavers, seating, tables, fountains, awnings, bollards, railings,
waste receptacles, statues, bicycle racks, flagpoles, scoreboards and signage. The Plaza shall be
open to the general public during daylight hours on a year-round basis; provided that the
Operator may restrict access to certain portions of the Plaza from two (2) hours preceding
through two (2) hours following Stadium Events, and otherwise as may be reasonably necessary
to maintain the Plaza in a safe, clean and orderly condition.
Section 4.18 National Disaster. In the event of a national disaster, the Baseball
Stadium may be used by the County as an emergency shelter or disaster recovery site at no cost
to the County.
ARTICLE V
SOCCER STADIUM
The City may develop a soccer stadium for a Major League Soccer team. If such soccer
stadium will be located within the Entire Site (the "Soccer Stadium"), the following provisions
of this Article V shall apply.
Section 5.1 Construction.
(a) The City shall keep the County and the Team Affiliates informed of any
plans it develops or modifies for a Soccer Stadium. The City may, subject to the provisions of
this Article V, (i) pursue the Soccer Stadium on such terms and conditions as it may determine,
(ii) transfer the right to pursue a Soccer Stadium to a third party for such consideration as it
determines, or (iii) joint venture with the Team, or cause a third party to joint venture with the
Team, to pursue a Soccer Stadium.
(b) The City acknowledges that the success of the Baseball Stadium will
depend on, among other things, the proper coordination of all of the proposed construction and
uses of the Baseball Stadium and the Soccer Stadium. As such, the Operator and the City have
agreed to coordinate certain scheduling and sponsorship matters with respect to the Baseball
Stadium and the Soccer Stadium in Section 5.2 below. The City further agrees, and shall require
and cause all users and contractors of the Soccer Stadium, to comply with the following
restrictions:
(i) The Soccer Stadium shall be architecturally harmonious with the
Baseball Stadium and the fagade features of the Soccer Stadium shall have no highly reflective
materials facing the Baseball Stadium.
(ii) During the construction period for the Baseball Stadium, Parking
Facilities and Public Infrastructure, the Baseball Stadium, Parking Facilities and Public
Infrastructure contractors shall have job site priority over construction of the Soccer Stadium.
The City shall require that any work to be performed in respect of the Soccer Stadium be done
without causing a delay in the completion of the Baseball Stadium by the Targeted Completion
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Date and the Public Infrastructure by the deadlines specified in the Construction Administration
Agreement. In addition, the City shall not, following the Substantial Completion Date, allow any
substantial or noisy construction activity in respect of the Soccer Stadium 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 with an
expected attendance of 5,000 or more people.
(iii) The following uses shall not be permitted within the Soccer
Stadium: (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, (C) QSRs, except
for QSRs in the Soccer Stadium operating during soccer stadium events, (D) portable or
temporary food, or the give-away of food or beverage, during the period from three (3) hours
before and one (1) hour after MLB Home Games or 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, (F) the promotion and sale of
baseball branded or themed memorabilia and merchandise by persons other than a Team
Affiliate, and (G) the promotion and sale of soccer branded or themed memorabilia and
merchandise by persons other than the Soccer Team.
(iv) The City shall not permit the construction of the Soccer Stadium to
commence until after the second anniversary of the Substantial Completion Date.
(v) The City shall not permit the use of Soccer Stadium 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.
(vi) 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
Soccer Stadium for a reasonable period prior to the construction of such Soccer Stadium or prior
to the execution of such leases.
The City, the County and the Operator agree that the foregoing restrictions shall run with the
Soccer Stadium land through the Term, or through construction in the case of the first two
sentences of Section 5.1(b)(ii). The City, the County and the Operator (if appropriate) shall
record an appropriate legal instrument in the Public Records of Miami -Dade County evidencing
the continuing applicability of these restrictions.
Section 5.2 Scheduling.
(a) As provided below, MLB Home Games and MLS Home Games will not
be scheduled to take place at the Baseball Stadium and Soccer Stadium during the same time,
whether or not the games do not commence at the same time. They may, however, be scheduled
on the same day so long as the game time does not interfere with the restrictions for exclusive
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use of the Parking Facilities provided in the City Parking Agreement (i.e., the second game may
not be scheduled to start within four (4) hours after the scheduled end time of the first game).
(b) The scheduling of MLB Home Games and MLB Jewel Events shall have
absolute priority over the scheduling of all soccer games and Other Events at the Soccer
Stadium; provided that (i) the Operator shall provide the Soccer Team up to thirteen (13)
Saturday nights during each MLS soccer season for its MLS Home Games at the Soccer Stadium
and (ii) the Operator shall make reasonable effort to accommodate any post -season MLS Home
Games that would otherwise conflict with regular season MLB Home Games. The priority for
MLB Home Games and MLB Jewel Events shall be on all dates (x) on which MLB Home
Games or MLB Jewel Events have been scheduled (or rescheduled) or (y) that the Team is
required to reserve for the scheduling of MLB Home Games (including potential post -season
games) or MLB Jewel Events under MLB Rules and Regulations (collectively, "MLB Reserved
Dates"). The Operator or the Team shall notify the Soccer Team and the City in writing of the
MLB Reserved Dates (and the scheduled start times of the MLB Home Games and MLB Jewel
Events) for each Operating Year no later than ten (10) Business Days after the Team's schedule
is finalized for that Operating Year. The Soccer Team shall not schedule any game or other
event or activity at the Soccer Stadium (A) on an MLB Reserved Date, except at a different time
in compliance with Section 5.1(a) above, or (B) between March 15 and November 15 in any
Operating Year for which it has not yet received the MLB Reserved Dates.
(c) The scheduling of the Soccer Team's regular season and playoff MLS
home games at the Soccer Stadium ("MLS Home Games") shall have absolute priority over the
scheduling of Stadium Events other than MLB Home Games and MLB Jewel Events. Such
priority shall be on all dates (i) on which MLS Home Games have been scheduled (or
rescheduled) or (ii) that the Soccer Team is required to reserve for the scheduling of MLS Home
Games (including potential playoff games) under MLS rules and regulations, in each case in
accordance with the priority for MLB Reserved Dates set forth above (collectively, "MLS
Reserved Dates"). The Soccer Team shall notify the Operator and the City in writing of the
MLS Reserved Dates (and the scheduled start times of the MLS Home Games) for each
Operating Year within 5 Business Days after it receives the MLS Reserved Dates from Major
League Soccer.
(d) Once the Team or the Soccer Team is mathematically eliminated from
participation in the playoffs in any Operating Year, its MLB Reserved Date or MLS Reserved
Dates shall no longer include reserved playoff dates for that Operating Year.
(e) If Major League Baseball shall establish or change the date for an MLB
Home Game or MLB Jewel Event to an MLS Reserved Date, or to a time that would conflict
with an MLS Home Game, then such date (or time) shall no longer be reserved for the Soccer
Team, and the Operator shall promptly notify the Soccer Team of such change and the Soccer
Team shall reschedule the MLS Home Game to a date (or time) that does not conflict with the
MLB Home Game or MLB Jewel Event. The Operator shall cooperate with the MLS Team and
use diligent efforts to minimize the disruption from such rescheduling.
(f) As between (i) Stadium Events that are not MLB Home Games or MLB
Jewel Events and (ii) events at the Soccer Stadium that are not MLS Home Games ((i) and (ii),
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"Other Events"), priority in the use of the Parking Facilities will be determined on the basis of
which Other Event is booked first in accordance with the following procedures:
(i) The Soccer Team may not reserve the Parking Facilities between
March 15 and November 15 in any Operating Year until it has received the MLB
Reserved Dates in accordance with Section 5.1(b); and the Operator may not reserve the
Parking Facilities for Other Events between April 15 and October 15 in any Operating
Year until it has received the MLS Reserved Dates in accordance with Section 5.1(c).
(ii) Each of the Operator and the Soccer Team may reserve the Parking
Facilities for a bona fide Other Event (A) at any time during periods that are not restricted
under paragraph (i) above and (B) at any time during such restricted periods after it has
received from the other the MLS Reserve Dates and MLB Reserved Dates, respectively,
provided that such time does not conflict with an MLB Home Game, MLB Jewel Event
or MLS Home Game. In order to make such reservation, the Operator or Soccer Team
shall deliver to the other and the City a written notice setting forth (w) a description of
the proposed Other Event, (x) the expected attendance, (y) the proposed start and end
times of the Other Event, as well as the proposed use times of the Parking Facilities, and
(z) any approvals or other conditions that may be required to hold such Other Event, and
the status of such approvals and conditions. The City shall only reserve the Parking
Facilities for bona fide Other Events, and at times that do not conflict with MLB Home
Games, MLB Jewel Events, MLS Home Games or previously reserved Other Events.
(iii) The provisions of this Section 5.2(f) shall only apply to Other
Events that are reasonably expected to have an attendance of more than 5,000 people.
Each of the Operator and the Soccer Team may at any time reserve the Parking Facilities
in accordance with the City Parking Agreement for Other Events that are reasonably
expected to have attendance of fewer than 5,000 people.
(iv) Additional provisions with respect to the reservation and use of the
Parking Facilities are set forth in the City Parking Agreement. Any dispute under this
Section 5.2 shall be resolved by Arbitration pursuant to Article XVIII.
Section 5.3 Advertising.
(a) Subject to the remaining terms of this Section 5.3, Ambush Advertising
shall be prohibited (i) at the Stadium Premises during (and within two hours before and after)
soccer games and other events at the Soccer Stadium expecting to have attendance of at least
5,000 people, and (ii) at the Soccer Stadium premises during (and within two hours before and
after) MLB Home Games, MLB Jewel Events or other Stadium Events expecting to have
attendance of at least 5,000 people. "Ambush Advertising" means any promotions, contests or
other sponsorship activation activities directed at undercutting the value or impact of a
competitor's advertising signage or sponsorship at the Soccer Stadium (in the case of Ambush
Advertising from the Stadium Premises) or at the Stadium Premises (in the case of Ambush
Advertising from the Soccer Stadium premises).
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(b) Exterior Advertising on a Soccer Stadium may not conflict with any
product or service category rights granted to any Major Sponsor. Exterior Advertising consists
of Advertising on the Soccer Stadium or inside the Soccer Stadium that is visible outside of the
Soccer Stadium. The Operator or the Team shall notify the Soccer Team of its Major Sponsors
from time to time, and at least once each Operating Year. No advertiser on the exterior of the
Soccer Stadium that competes with a new Major Sponsor (i.e., a Major Sponsor that enters into
an agreement with a Team Affiliate or Baseball Stadium following the Team's first year in the
Baseball Stadium and following the execution of an agreement by such advertiser with the
Soccer Team) shall be required to terminate its agreement early or to remove its competing
advertising until the expiration of the term of its agreement; provided that no such agreement
shall be renewable if it conflicts with a Major sponsor at the time of such renewal. The Major
Sponsor restrictions in this paragraph relating to exterior signage on the Soccer Stadium shall not
apply to the naming rights sponsor of the Soccer Stadium, except that the Soccer Stadium shall
not be permitted to enter into or renew any naming rights agreement that would conflict with the
Naming Rights of the Baseball Stadium. In order to implement the preceding sentence, the
Soccer Stadium may not grant its naming rights until after the Operator has entered into a
Naming Rights Agreement. The Operator represents to the City that it has not entered into a
Naming Rights Agreement. The City represents to the Operator that it has not entered into any
agreement with respect to a Soccer Stadium.
Section 5.4 Soccer Agreement. The City shall cause the provisions of this Article V to
be included in. any agreement under which it authorizes a Soccer Team to use or operate the
Soccer Stadium, and shall cause the Soccer Team to comply with such provisions.
ARTICLE VI
GOVERNMENT PARTY USE
Section 6.1 Government Party Use of Baseball Stadium.
6.1.1 Community Event Dates. During each Operating Year, the County and
the City shall each have the right to use the public areas of the Stadium Premises (excluding the
Exclusive Areas, other than "party" Suites licensed on an event -by -event basis, and retail stores)
as described below ("Community Event Dates"). Each of the County and the City shall be
permitted to conduct up to four (4) Community Events during the period from March 1 through
the last potential World Series game in each Operating Year. The County and the City shall not
be restricted in the number of days that each may use the Baseball Stadium for Community
Events during the period from such last potential World Series game through the following
February 28, except as provided below.
6.1.2 Scheduling of Community Events.
(a) The Operator and the Team shall have absolute priority to use, or
permit third parties holding Stadium Events to use, the Stadium Premises on the following dates:
(i) all MLB Reserved Dates; (ii) in the case of any other amateur, college or professional sports
team that has committed to play games at the Baseball Stadium (a "Sports User"), all dates that
have been scheduled (or rescheduled) for, or that such Sports User is required to reserve for the
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scheduling of, its home games, under the applicable rules of its league, conference or other
governing body; (iii) all other dates reserved for Stadium Events that have previously been
scheduled and are committed to take place at the Stadium Premises; (iv) all dates that have been
included in bids for prospective Stadium Events; (v) a reasonable number of dates that have been
reserved for the attraction of other prospective Stadium Events; and (vi) any dates reasonably
reserved to accommodate set-up and break down time for any of the foregoing or reasonably
expected repair of the Stadium Premises (collectively, "Operator Reserved Dates").
(b) If a Government Party wishes to reserve a date for a Community
Event (a "Community Reserved Date"), it shall deliver to the Operator a written notice
requesting such date at least thirty (30) days before the proposed date of the event, but not more
than one hundred eighty (180) days before the proposed date of the event. Such notice shall set
forth the requested Community Reserved Date(s) and shall identify in reasonable detail the
nature of the event, the areas of the Stadium Premises the Government Party expects to use, the
terms of admission (including ticket prices payable to a designated charity), the expected
attendance, any special security or other arrangements that are anticipated, and any other
information reasonably necessary for the Operator to perform its duties under this Agreement.
Notwithstanding the notice provisions in this paragraph and the Operator's rights in paragraph
(c) below, the Operator agrees to work cooperatively with the County or City, when possible, to
accommodate scheduling of Community Event dates.
(c) The Operator shall have the right to refuse to schedule any
proposed Community Event if (i) the date requested is an Operator Reserved Date; (ii) the
proposed Community Event would violate Section 6.1.1. or 6.1.2(a); (iii) the proposed usage (w)
involves a sporting or athletic event above the high school level, (x) involves animals or motor
vehicles, (y) includes use of the infield unless the use is for a baseball or softball game, or (z)
would violate MLB Rules and Regulations relating to the public image of a Major League
Baseball team or the Baseball Stadium; (iv) the Operator reasonably believes the usage presents
an unacceptable risk of damage to the Field or the Stadium Premises, or would interfere with the
use, operation or preparation of the Stadium Premises for any MLB Home Game, MLB Jewel
Event or any other Operator Reserved Date; or (v) the promotional sponsorship connected with
the usage, in the opinion of the Operator, is incompatible with any arrangements with any Major
Sponsor or other exclusive Advertising or promotional arrangements connected with a Team
Affiliate or the Baseball Stadium. If the Operator rejects a proposed usage, it shall provide the
requesting Government Party with a reasonably detailed written explanation within five Business
Days after the Operator's receipt of that Government Party's request for a Community Reserved
Date. If the Operator fails to reject the request with a reasonably detailed written explanation
within such time period, it shall be deemed to have waived its right to reject such proposed
usage.
(d) If Major League Baseball shall establish or change the date for an
MLB Home Game or MLB Jewel Event to a Community Reserved Date, or any other league,
conference or governing body shall establish or change the date for a home game of any other
Sports User to a Community Reserved Date, then such date shall no longer be reserved for the
applicable Government Party, and the Operator shall promptly notify the applicable Government
Party of such change and reschedule the Community Event to a date that is not an Operator
Reserved Date. The Operator shall cooperate with the applicable Government Party and use
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diligent efforts to minimize the disruption from such rescheduling and to assist the Government
Party in rescheduling the cancelled Community Event. If a Community Event is cancelled
pursuant to this Section 6.1.2(d), and no date can reasonably accommodate a re -scheduling of the
Community Event within 60 days, the Government Party shall not be liable for Community
Event Expenses incurred by the Operator leading up to the original date of the Community
Event. Any payments for Community Event Expenses made by the Government Party to the
Operator prior to a scheduled Community Event which is cancelled pursuant to this Section
6.1.2(d) shall be credited by the Operator to the Government Party and such credit may be used
by the Government Party towards any Community Event Expenses incurred with respect to the
re -scheduled Community Event; however, if no date can reasonably accommodate a re-
scheduling of the Community Event within 60 days, then such payments shall be reimbursed to
the Government Party.
6.1.3 Community Event Proceeds. The charity that is the beneficiary of a
Community Event shall be entitled to (a) the ticket proceeds (net of applicable Taxes, credit card
fees, ticketing agent fees and other related expenses), if any, from such Community Event, and
(b) all proceeds (net of Taxes, credit card fees, enforcement costs, any expenses of or amounts
allocated to the Operator's concessionaires and other related expenses) from the sale of Event
Specific Concessions ((a) and (b), collectively, "Community Event Proceeds"), in each case after
payment of the Community Event Expenses for such Community Event pursuant to Section
6.1.4.
6.1.4 Community Event Expenses. The Government Party requesting a
Community Event shall reimburse the Operator, or cause the Operator to be reimbursed, for all
costs and expenses incurred in connection with or attributable to the use of the Stadium Premises
for a Community Event, including: (a) all costs relating to the set-up and breakdown for the
Community Event; (b) all costs for ticket takers, ushers, security personnel, facility and system
operators, janitorial personnel and other personnel working at the Community Event; (c) utility
expenses, additional insurance and post -event clean-up expenses of the Stadium Premises; (d)
the costs for repairing damage to the Stadium Premises caused on the Community Event Date or
otherwise arising from the Community Event (except for ordinary wear and tear); and (e) all
costs associated with ticketing for the Community Event (collectively, "Community Event
Expenses"). Upon request by a Government Party prior to a Community Event, the Operator
will provide the Government Party with personnel rates for such Community Event. The
County or the City, as applicable, will provide and pay for proper Public Safety Personnel with
respect to its Community Events. The Operator shall apply any Community Event Proceeds
received by the Operator to the payment of Community Event Expenses for the applicable
Community Event. If the Community Event Proceeds received by the Operator from a
Community Event exceed the Community Event Expenses for that Community Event, the
Operator shall remit the excess to the applicable charity as directed by the applicable
Government Party within thirty (30) after the Community Event Expenses are determined. If the
Community Event Expenses for a Community Event exceed the Community Event Proceeds
received by the Operator for that Community Event, the applicable Government Party shall
reimburse the Operator for such excess Community Event Expenses within thirty (30) days after
notice thereof from the Operator.
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6.1.5 Stadium Signage. The Government Parties shall not sell, license or
authorize, or permit any of their invitees to sell, license or authorize, any Advertising Rights at
any time in or on the Stadium Premises. Notwithstanding the foregoing, the Government Party
conducting a Community Event shall have the right, without charge (other than reimbursement
of expenses as set forth in Section 6.1.4), to display within the Baseball Stadium during
Community Events temporary banners, signs and similar event -specific materials; provided that
such materials may not contain any sponsor identifications that conflict with or otherwise violate
the terms of any then -existing agreement of the Operator, any of its Affiliates or any other Sports
User regarding Advertising Rights of a Major Sponsor, Naming Rights or similar exclusive
sponsorship rights. The Government Parties shall not, nor shall they permit any other Person to,
obscure, mask, alter, cover or obstruct (electronically or otherwise) any fixed or permanent
Signage displayed in the Stadium Premises, whether during a Community Event or otherwise.
On request by a Government Party from time to time during the Term, the Operator will provide
the Government Party a list of all Major Sponsors and all advertisers that have similar exclusive
sponsorship rights for the Baseball Stadium.
6.1.6 Community Event Use Agreement. Prior to each Community Event, the
applicable Government Party shall enter into a Use Agreement with the Operator addressing
matters not covered by this Section 6.1 that are customarily addressed between stadium users and
stadium operators (a "Community Event Use Agreement"). Such Community Event Use
Agreement shall be on reasonable terms and conditions, no more restrictive or onerous in any
material respect than those imposed on other Users of the Baseball Stadium for similar purposes
and similar expected attendance. Such Community Event Use Agreement shall, at a minimum,
contain the following provisions:
(a) an agreement by the applicable Government Party to indemnify,
defend, protect, and hold harmless the Operator Indemnitees from and against any and all Losses
of any nature resulting from, arising out of or in connection with the Community Event or the
use of the Stadium Premises on a Community Event Date;
(b) a requirement that the applicable Government Party shall obtain
(or cause to be obtained) and provide the Operator with evidence at least seven (7) Business
Days prior to any scheduled Community Event that it has obtained (or caused to be obtained)
insurance with respect to the Community Event comparable to the insurance required by the
Operator of Users making comparable use of the Stadium Premises (including deductible and
retention amounts), which insurance shall name each of the Operator, the Team and their
respective Affiliates as an additional insured and loss payee, as appropriate;
(c) a requirement that the applicable Government Party comply, and
cause its invitees to comply, with generally applicable policies established by the Operator for
the Stadium Premises, including those regarding crowd control, security, access, building
operations and broadcasting;
(d) an agreement by the applicable Government Party not to operate or
permit any Person to operate any Concessions operations in or upon the Stadium Premises at any
time, except that the Government Party shall have the right to sell, duplicate and distribute non-
perishable hard and soft Concession items that are specifically and exclusively related to the
0-V
particular Community Event and that are supplied by or on behalf of the Government Party and
do not contain any Advertising or sponsor identification ("Event Specific Concessions");
provided that the Government Party shall use or cause to be used, on an exclusive basis, the
Operator's concessionaires for all such sales;
(e) an agreement by the applicable Government Party to return the
Stadium Premises to the same condition than existed prior to the Community Event; and
(f) deposit or other customary conditions to ensure payment to the
Operator of the Community Event Expenses for the Community Event.
Any independent promoter or sponsor of a Community Event shall join the applicable
Government Party in executing a Community Event Use Agreement, and shall be bound thereby
to the same extent as the Government Party.
6.1.7 Operator Agreements. Unless otherwise determined by the Operator or
the applicable agreement, all agreements of the Operator and its Affiliates with vendors,
suppliers, sponsors, suiteholders, concessionaires, advertisers, ticketing agents and other relevant
parties shall remain in effect with respect to all of the Community Events and Community Event
Dates, and all revenues from such agreements and otherwise generated at the Stadium Premises
in connection with a Community Event (except for Community Event Proceeds) shall be payable
to the Operator. The Operator shall permit charities that sponsor Community Events to utilize
their own Concessions vendors and ticketing agents for those events, provided that such
arrangements do not conflict with any agreements of the Operator or its Affiliates, or raise other
reasonable concerns of the Operator.
Section 6.2 Government Party Access. Nothing contained in this Agreement is
intended to limit the right of the Government Parties from exercising a nonproprietary function
(e.g., building and fire safety inspections, as applicable) to access the Stadium Premises in the
ordinary exercise of their police powers, provided that any such entry shall not unreasonably
interfere with the business or operations of the Stadium Premises except in the case of an
emergency.
Section 6.3 Stadium Event Proceeds. As it relates to the use of the Baseball Stadium
each Operating Year for Stadium Events with an attendance of 5,000 or more people and with
respect to which the Operator is paid revenues, other than MLB Home Games, MLB Jewel
Events, other baseball or Team -related events, and Community Events, the Parties agree that: (a)
the Operator shall retain the revenues from each of the first ten (10) such Stadium Events in such
Operating Year for the term of the Operating Agreement; (b) for the first 10 Operating Years, (i)
the Operator shall split 50% - 50% with the County the Operator's net income from such
Stadium Events eleven (11) through fifteen (15) for each of those Operating Years with each
party contributing all of their proceeds into the Capital Reserve Fund, and (ii) for each Stadium
Event after number fifteen (15), the Operator and the County shall split such net income 50%
each, with the County depositing all of its share into the Capital Reserve Fund and the Operator
depositing half of its 50% share into the Capital Reserve Fund; and (c) for Operating Year 11
through the end of the Operating Term, (i) the Operator shall split 50% - 50% with the County
the Operator's net income from such Stadium Events eleven (11) through twenty (20) for each of
those Operating Years with each party contributing all of their proceeds into the Capital Reserve
Fund, and (ii) for each such Stadium Event after number twenty (20), the Operator and the
County shall split such net income 50% each, with the County depositing all of its share into the
Capital Reserve Fund and the Operator depositing half of its 50% share into the Capital Reserve
Fund. Such deposits shall be in addition to the amounts otherwise payable to the Capital Reserve
Fund under Article IX. For purposes of this Section 6.3, a multi -day event or group of related
events (e.g., a multi -day convention or concert tour) shall be considered a single event. The
Operator shall provide the County Representative an accounting of any and all net income
deposited into the Capital Reserve Fund pursuant to this Section 6.3 following each Operating
Year.
ARTICLE VII
COMMUNITY BENEFIT OBLIGATIONS
Section 7.1 Community Benefits. The Operator and the Team acknowledge a civic
responsibility to promote and contribute to charitable, educational and community organizations
and other public works in South Florida. The Operator shall cause the Team to develop and
deliver a strong and substantial community benefits package that shall include the following:
(a) The Operator shall, or shall cause the Team to, maintain, fund, and
vigorously promote the not-for-profit Florida Marlins Community Foundation (the "Team
Foundation") as well as the Team's own internal community relations efforts, which collectively
are focused on promoting educational, athletic, health, social and community service programs
with a particular focus on Miami -Dade County and the City of Miami in addition to other
activities for South Florida's youth. Commencing in the first year of the Term, and thereafter in
each year of the Term, the Operator shall make, or shall cause the Team to make, a financial
contribution through the Team Foundation for the foregoing purposes in the amount of $500,000
per year, provided that for the first 7 years and six months of the Term, $125,000 of this amount
shall be paid $100,000 to the Parks Foundation of Miami -Dade County, Inc. and $25,000 to the
City's Heart of Our Parks Fund for baseball -related programs designed to support youth and
community based programs within their respective jurisdictions including youth baseball
leagues, baseball camps, after school programs, internships and opportunities for underprivileged
youth.
(b) The Team shall endeavor to maximize benefits for (i) youth and other
residents of South Florida, with a particular focus on Miami -Dade County and the City of
Miami, and (ii) rebuilding youth baseball infrastructure through local baseball -related charitable
organizations and Major League Baseball's various affiliated charitable organizations and
programs, such as: Major League Baseball Charities, Reviving Baseball in Inner Cities, Baseball
Tomorrow Fund, Join the Major Leagues @ Your Library, Breaking Barriers, Baseball
Assistance Team, Jackie Robinson Foundation, and Commissioner's Initiative for Kids. In
addition to the Team's efforts to reach the youth and other residents of Miami -Dade County and
the City of Miami through its Team Foundation, the Team shall develop along with the City and
County aggressive youth programs that are oriented towards infrastructure, maintenance and
assisting sports -based programs and such programs shall establish goals and benchmarks.
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(c) The Team shall request and encourage its advertisers and sponsors to
contribute to and support the Team Foundation.
(d) The Team shall request and encourage its players and other Team
personnel to support and participate in community activities through personal appearances and
other means, such as financial or other contributions to the Team Foundation or to other
organizations that benefit youth and other residents of Miami -Dade County and the City of
Miami as well as other organizations and youth in South Florida. The Team will work with its
players, coaches and senior management to make at least twenty-five (25) personal public
appearances (counting no more than three appearances per event) per year in South Florida in
support of education, youth sports, or other public service activities.
(e) The Team shall provide attractive and meaningful programs designed to
keep Major League Baseball games affordable for youth and the elderly in South Florida.
During each Operating Year, the Team shall (i) provide Affordable Seats, and (ii) distribute at
least ten thousand (10,000) regular season individual tickets on a complimentary basis each
Operating Year to appropriate Miami -Dade County charities that will make such tickets available
to underprivileged youth accompanied by adult mentors. The amount of such Affordable Seats
and complimentary tickets shall be pro -rated on a per -game basis to the extent there are fewer
than eighty-one (8 1) regular season MLB Home Games in any Operating Year.
(f) The Team shall build or improve a total of 39 baseball fields in Miami -
Dade County with at least three (3) in each Miami -Dade County Commission district and at least
two (2) in each City of Miami Commission district. The Team agrees to build or improve at
least 1 baseball field each year of the Term.
Section 7.2 Local Business Initiatives. Team shall participate in Major League
Baseball's Diverse Business Partners Program. In addition, the Operator shall adhere to an
aggressive small business outreach program (the "Outreach Program"). The Outreach Program
shall be developed jointly by the County, the City, and the Operator and shall be designed to
increase small business and local resident participation during the operation of the Baseball
Stadium with a view to supporting the following aspirational goals, subject to Applicable Law:
(a) fifteen percent (15%) of the contracts awarded to small businesses located within the
Designated Target Areas and the Neighborhood Development Zones, both as depicted in Exhibit
P to the Construction Administration Agreement (the "Area"); and (b) twenty five percent
(25%) of the Baseball Stadium workers from residents of the Area; and (c) as many local
workers as reasonably practical in the operation of the Stadium with the aspiration to have at
least 50% of the Baseball Stadium workers be residents of Miami -Dade County, 20% of whom
shall be City of Miami residents. If the Operator hires more than 50% of the Baseball Stadium
workers from within Miami -Dade County, the percentage of City of Miami residents hired shall
also increase proportionally. The County Manager and the City Manager shall present the final
terms of the Outreach Program for approval by the Board and the City.
Section 7.3 Community Suite. Each MLB season, the Operator shall make available
at no charge (other than food, beverage and other variable costs typically paid separately by Suite
licensees, except that the Operator shall provide food and beverages at no charge to youth
charities) one standard Suite (the "Community Suite") to each regular season MLB Home Game
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for public and/or charity use. Each MLB season, the County and the City each shall have the
right to designate the public or charity use for the Community Suite for forty (40) regular season
MLB Home Games, and the home opener shall be shared by the City and County. In the case
of any playoff or World Series MLB Home Game or other MLB Jewel Event, the City and
County will have the right to purchase tickets for the Community Suite on the same basis as
other Suite licensees are permitted to purchase Suite tickets. Use of the Community Suite shall
be subject to the same rules, regulations and restrictions as are applicable to the other Suites, and
the County and City shall execute the Operator's standard form of suite license (but without a
license fee).
ARTICLE VIII
OWNERSHIP OF STADIUM, ASSETS
Section 8.1 County Ownership Interest. Legal ownership of and legal title to the
Baseball Stadium Site, after conveyance from the City under the Construction Administration
Agreement, and the Baseball Stadium shall at all times be vested in the County.
Section 8.2 Ownership Of Team Depreciable Assets For Income Tax Purposes. 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. Such items shall be allocated in accordance with the methodology set forth in Section
5.11 of the Construction Administration Agreement or another methodology selected by the
Operator or Team Affiliate. In the event that the depreciation of the Team Depreciable Assets by
the Operator, the Team or their Affiliates causes ad valorem taxes to become due, the Operator
(or such other Person) shall pay any resulting ad valorem tax. 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 of the Construction Administration Agreement, and the failure
to issue a favorable 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 of the Construction Administration Agreement. Notwithstanding the foregoing,
any equipment, fixtures, furniture or other personal property added to the Exclusive Areas of the
Stadium Premises by the Operator or the Team at its expense shall remain the property of the
Operator or the Team, as applicable, and the Operator or the Team at its expense may remove
such items of equipment, fixtures, furniture and other personal property from the Stadium
Premises on or prior to the end of the Term. 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.
Section 8.3 Ownership of Promotional Rights. As between the County and the City
on the one hand and the Operator and other Team Affiliates on the other hand, the Operator or
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Team Affiliates own all Promotional Rights and all Operating Rights exclusively and on a
worldwide basis, including but not limited to the right to exercise and exploit the Promotional
Rights in any and all media, now known or hereafter invented, and for any and all purposes,
products and services throughout and for all countries and territories of the world. Neither the
County nor the City shall use, sell, assign, commercialize or otherwise exploit the Promotional
Rights without the written permission of the Operator or the Team, which may be given or
withheld in the Operator's or Team's absolute discretion. As between the County and the City
on the one hand and the Operator, other Team Affiliates or Major League Baseball on the other
hand, all Propriety Indicia are solely and exclusively the property of the Operator, other Team
Affiliates, Major League Baseball or their respective assigns. As between the County and the
City on the one hand and the Operator, other Team Affiliates or Major League Baseball on the
other hand, the creation, use, compilation, collection, arrangement, assembly, display,
promotion, licensing or other promotion or exploitation of Proprietary Indicia are rights
exclusively belonging to the Operator, other Team Affiliates, Major League Baseball or their
respective assigns, as the case may be. Use of the Proprietary Indicia by the County or City is
strictly prohibited without the prior written permission of the Operator or the Team, which may
be given or withheld in the Operator's or Team's absolute discretion. The Operator and/or other
Team Affiliate shall provide written notice to the City and/or the County of any violations by the
City or the County of use of Proprietary Indicia at any time during the Term and shall provide
the City or the County a period of thirty (30) days to cure the violation.
ARTICLE IX
MAINTENANCE, REPAIRS AND CAPITAL IMPROVEMENTS
Section 9.1 Maintenance and Repairs. The Operator shall undertake and pay for, or
cause to be undertaken and paid for, all Maintenance and Repairs.
Section 9.2 Capital Improvements.
(a) The Operator shall promptly make all Emergency Capital Repairs and
Necessary Improvements subject to Section 9.3(d) and Article XI. The cost of such Emergency
Capital Repairs and Necessary Improvements shall be paid or reimbursed to the Operator from
funds in the Capital Reserve Fund subject to Section 9.3(d).
(b) The Operator shall be permitted to make Capital Improvements (other than
Emergency Capital Repairs and Necessary Improvements) as it deems necessary or appropriate;
provided that:
(i) the Capital Improvement is below the Capital Improvement
Threshold Amount; or
(ii) the Capital Improvement is above the Capital Improvement
Threshold Amount and has received prior written approval of the County
Representative, which shall not be unreasonably withheld, conditioned or delayed
(and shall be deemed granted if the County Representative fails to respond to the
Operator's request for consent within thirty days after the request is made).
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The cost of such Capital Improvements in (i) and (ii) above shall be borne by the Operator and.
shall not be deemed an expense eligible for reimbursement from the Capital Reserve Fund,
unless otherwise agreed by the County Representative in writing. The Operator covenants that it
will not divide a Capital Improvement project into more than one project if such division directly
or indirectly results in the circumvention of the requirements of this subsection.
Section 9.3 Capital Reserve Fund.
(a) Prior to the Substantial Completion Date, the Parties shall establish an
interest bearing Capital Reserve Fund with a Qualified Trustee and shall agree to the terms of a
trust, escrow or similar agreement, which agreement shall include, among other things,
disbursement procedures. All earnings and profits from the investment of the Capital Reserve
Fund shall be for the account of the Capital Reserve Fund. The Parties intend the Capital
Reserve Fund to be an asset of the County designed to protect its ownership interest in the
Baseball Stadium, and not an asset of the City, the Operator or any of its Affiliates.
(b) Prior to the November 30 following the end of each Operating Year (but
not the last Operating Year), (i) the City shall deposit $250,000 into the Capital Reserve Fund
and (ii) each of the County and the Operator shall deposit $750,000 into the Capital Reserve
Fund. If the first Operating Year starts on a date other than November 1, the amounts to be
deposited after the first Operating Year shall be pro -rated to the extent such year is a partial year.
If State funding contemplated under Section 6.10 of the Construction Administration Agreement
is obtained that provides for deposits into the Capital Reserve Fund of at least $2,000,000 per
Operating Year, the City shall not be required to contribute to the Capital Reserve Fund in any
such Operating Year. If such State funding is obtained in an amount less than $2,000,000 in any
Operating Year, the City's Capital Reserve Fund contribution in that Operating Year shall be
reduced pro rata. As an example, if $1,000,000 of State funding is received during any
Operating Year, the City's contribution will be reduced by $125,000 to $125,000. If the County
funds a portion of the deductible costs, and any amounts exceeding any applicable sub -limit
under the Property Insurance Policy pursuant to Section 11.2(c)(ii) that is not reimbursed by a
Government Relief Grant, the Operator shall contribute such amount, subject to the provisions of
Section 11.2(c), to the Capital Reserve Fund on behalf of the County within ninety (90) days
after payment of such amount by the County. Such contributions will relieve the County of its
obligations under this Section 9.3(b) up to the amount contributed by the Operator on its behalf.
(c) The Operator may from time to time withdraw funds from the Capital
Reserve Fund to pay for Necessary Improvements or Emergency Capital Repairs in accordance
with Section 9.2(a). The Operator shall provide the Government Representatives a simultaneous
copy of each withdrawal request given to the Qualified Trustee, together with a description of the
Necessary Improvements or Emergency Capital Repairs being funded with the withdrawn funds.
Upon request of a Government Representative, the Operator shall provide the Government
Representative with documentation evidencing payment of such Necessary Improvements or
Emergency Capital Repairs.
35
(d) To the extent funds in the Capital Reserve Fund, including any State
funding contemplated under Section 6.10 of the Construction Administration Agreement (if
received), are not sufficient to fund Necessary Improvements and Emergency Capital Repairs,
the responsibility for funding such deficiency shall be as follows: (i) during Operating Years 0 to
10, the Operator shall be obligated to fund all such funding requirements; and (ii) during
Operating Years 11 to 35 the Parties shall jointly determine funding responsibilities of each Party
for such deficiencies.
(e) Upon the end of the Term, any funds remaining in the Capital Reserve
Fund shall be distributed to the County to be used by the County to fund Capital Improvements.
At the time of reversion to the City, any funds remaining in the Capital Reserve Fund shall be
distributed to the City to be used by the City to fund Capital Improvements.
(f) Notwithstanding the provisions of Sections 9.3(b) and (c), if the Operator
elects to extend the Term pursuant to Section 3.2, prior to the start of each Renewal Term the
Parties shall negotiate the amount of their annual contributions to the Capital Reserve Fund
during such Renewal Term.
Section 9.4 Title to Additions. All alterations, improvements, changes and additions
made to or with respect to the Stadium Premises in accordance with this Article IX shall remain
upon and be deemed to constitute a part of the Stadium Premises, and the County shall have legal
ownership of and legal title to all such alterations, improvements, charges and additions. Any
such alterations, improvements, changes and additions, to the extent constituting Team
Depreciable Assets, shall be owned for income Tax purposes by the Operator or such other Team
Affiliate. Notwithstanding the legal ownership of any Team Depreciable Assets, the Operator or
another Team Affiliate, by virtue of its ownership, operation or license pursuant to the Stadium
Agreements of such items, shall retain the sole beneficial and depreciable interest for income
Tax purposes (to the extent of its investment) in all such items, and for all income Tax purposes
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 such items, such rights being exclusively reserved to the Operator or such other Team
Affiliate (to the extent of its investment) unless assigned by the Operator or Team Affiliate, in
whole or in part, to one or more third parties. Notwithstanding the foregoing, any equipment,
fixtures, furniture or other personal property added to the Exclusive Areas of the Stadium
Premises by the Operator or the Team at its expense shall remain the property of the Operator or
the Team, as applicable, and the Operator or the Team at its expense may remove such items of
equipment, fixtures, furniture and other personal property from the Stadium Premises on or prior
to the end of the Term.
Section 9.5 Annual Reports.
(1) Thirty (30) days prior to the end of each Operating Year, the Operator will
provide the County Representative and the City Representative an Annual Report regarding the
Capital Reserve Fund. This report will include, at a minimum, the following information:
a. A budget showing the balance of the Capital Reserve Fund,
including details of capital projects conducted during the prior Operating Year, costs
we
and descriptions of prior year improvements by category (Emergency Repairs or
Necessary Improvements);
b. A list of anticipated Necessary Improvements, including estimated
costs, description, and reason for the projects to be conducted in the upcoming
Operating Year; also to include whether an item is being considered to be leased and
paid for from the Capital Reserve Fund;
C. A section detailing Maintenance and Repair work conducted and
planned to be conducted on HVAC, plumbing, mechanical, electrical and structural
systems of the Stadium Premises;
d. A list, for informational purposes only, of anticipated Capital
Improvements that are not Necessary Improvements or Emergency Capital Repairs
not funded from the Capital Reserve Fund and that are below the Capital
Improvement Threshold Amount;
e. A list of anticipated Capital Improvements that are not Necessary
Improvements or Emergency Capital Repairs above the Capital Improvement
Threshold Amount.
(2) Within (30) days of receipt of the Annual Report, the
Operator/County/City Representatives �',�'ill collaboratively review the aforementioned Annual
Report, taking into consideration the following:
a. Balance of the Capital Reserve Fund relative to the estimated cost
of the planned Necessary Improvements for the upcoming year;
b. Balance of the Capital Reserve Fund relative to estimated costs to
replace systems/components that may be nearing their economic
life and due for replacement;
C. Projected uses of the Capital Reserve Fund.
(3) The Operator, in consultation with the County Representative and the City
Representative, shall prepare a budget for the Capital Reserve Fund for the upcoming Operating
Year (the "Annual Capital Reserve Fund Budget"). The Annual Capital Reserve Fund Budget
and Necessary Improvements planned by the Operator shall be subject to approval of the County
Representative and the City Representative, which shall not be unreasonably withheld,
conditioned or delayed. The Major Necessary Improvements are generally intended to be made
in accordance with this Agreement. The Parties recognize that the Necessary Improvements
must be made in time and in a manner as to maintain the 'Stadium Premises to the standards of
service and quality generally accepted within the Major League Baseball professional ballpark
industry. The County Representative's approval of the Annual Capital Reserve Fund Budget
shall not be deemed approval of any Capital Improvements (other than Emergency Capital
Repairs and Necessary Improvements) the cost of which is above the Capital Improvement
Threshold Amount. The approval or disapproval of such Capital Improvements shall be given as
set forth in Section 9.2, whether as part of the Annual Capital Reserve Fund Budget review
process (with any discretionary improvements above the Capital Improvement Threshold
Amount separately identified for approval) or at another time arising during the year.
37
(4) Notwithstanding the foregoing, the City Representative shall only receive
information, participate in the processes, and have approval rights under this Section 9.5 while
the City is contributing to the Capital Reserve Fund under Section 9.3(b).
ARTICLE X
INSURANCE
Section 10.1 Insurance Requirements. Beginning on the Substantial Completion Date,
and thereafter at all times during the Term, the Operator shall, at its sole cost and expense,
maintain the following insurance policies (the "Insurance Policies"), in each case subject to
Sections 10.2 and 10.3 and at levels that are commercially and reasonably available in the South
Florida insurance market:
(a) Commercial General Liability. Commercial general liability insurance
against claims arising out of bodily injury, death or property damage arising out of the operations
of the Stadium Premises under this Agreement (including coverage for Certified Acts of
Terrorism as defined by and made available by the Terrorism Risk Insurance Program
Reauthorization Act (TRIPRA)) containing standard form provisions, written on an occurrence
basis, with a combined single limit for each occurrence of not less than $1,000,000 per
occurrence and $2,000,000 in the annual policy aggregate.
(b) Property Insurance. Property insurance (the "Property Insurance Policy")
on an all risk basis (including coverage for Certified Acts of Terrorism as defined by and made
available by the Terrorism Risk Insurance Program Reauthorization Act (TRIPRA)) for the
Baseball Stadium and all improvements at any time situated upon or forming part of the Baseball
Stadium with overall coverage limits on a replacement cost basis and sub -limits in amounts that
are customary, as established using an appropriate industry standard probable maximum loss
analysis (as long as the sub -limits are commercially and reasonably available in the South
Florida insurance market).
The property insurance shall name the County and the Operator as named insured and the City as
additional insured to the extent of its interest. As long as the policy contemplated under this sub-
section (b) provides coverage under a single policy for (i) the Baseball Stadium and all related
improvements, (ii) the Operator and Team contents, and (iii) for business interruption and extra
expenses, it is understood and agreed that notwithstanding anything contained herein to the
contrary, and unless otherwise agreed upon between the Parties, that in the event of a claim
hereunder which involves more than one interest and/or coverage and/or peril, the order of
payment under this policy for loss at the Baseball Stadium shall be made as follows: (1) first to
Miami -Dade County real property, (2) second to personal property, (3) third, to business
interruption and extra expenses. The property insurance to be maintained under this
subparagraph (b) shall include coverage for the Operator's parking revenue under the terms of
Section VI of the Parking Agreement that would be lost as a result of a casualty to the Parking
Facilities.
38
(c) Workers' Compensation. Workers' compensation insurance or a qualified
self insured program complying with the statutory requirements of the State and including
employers liability insurance coverage.
(d) Umbrella. Umbrella liability coverage on a comprehensive basis and in an
amount no less than $10,000,000 combined single limit in excess of the commercial general
liability, employer's liability and automobile liability limits as described in this Section 10.1.
(e) Automobile. Automobile liability coverage covering owned, non -owned,
leased or hired automobiles used by the Operator in the performance of its obligations under this
Agreement in an amount no less than $1,000,000 combined single limit.
The commercial general liability and umbrella policies shall name the Operator, the Team and
applicable Team Affiliates as the named insureds, and shall include the County and City as
additional insureds as their interests may appear in connection with this Agreement.
Section 10.2 Master Policy; MLB Policies.
(a) Any one or more of the types of insurance coverages required under
Section 10.1 may be maintained through a master policy insuring other entities (such as any
Affiliate of the Team or the Operator), provided that such blanket or master policy and the
coverage effected thereby comply with all applicable requirements of this Agreement.
(b) Any one or more of the types of insurance coverages required under
Section 10.1 may be maintained through a policy made available to the MLB clubs generally.
Section 10.3 General Insurance Provisions.
(a) Each Operating Year during the Term, the Operator shall provide the
Government Representatives with certificates of insurance covering the Insurance Policies and
providing the limits and sub -limits of each such policy. The Operator shall also provide a copy
of the policies to the County within 30 days of its receipt from the carrier. The County shall
submit a copy of the Property Insurance Policy to the Florida Insurance Commissioner or other
relevant state emergency management agency (or other appropriate FEMA -related state agency)
(the "State Insurance Agency") each year to seek confirmation that the Property Insurance Policy
for the Baseball Stadium qualifies as reasonable. If the State Insurance Agency determines that
the Property Insurance Policy is not reasonable, the County shall promptly notify the Operator in
writing. The County may seek a determination from the arbitrator pursuant to Article XVIII as
to whether the Property Insurance Policy complies with the requirements of this Article X. If the
arbitrator determines that the limits purchased do not meet the standard of commercially and
reasonably available in the South Florida insurance market, the Operator shall be required to
immediately purchase additional coverage to meet that standard. The Insurance Policies shall be
obtained from financially sound insurance companies rated not less than A- and a minimum
Class VII financial size category as listed 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. The Operator shall provide
the County Representative written notice of any material changes to the Insurance Policies
at
within thirty (30) days prior to the date such change becomes effective, if practicable, but in no
instance later than the date such changes become effective.
(b) Notwithstanding anything to the contrary in this Agreement, the Operator
shall not be obligated to carry insurance for matters customarily subject to exclusions by the
insurance industry.
(c) Any dispute arising under this Article X shall be resolved by Arbitration
pursuant to Article XVIII.
Section 10.4 Proceeds of Insurance. Without limiting the Operator's obligations under
Article IX with respect to Maintenance and Repairs or under Article XI with respect to Casualty
Repair Work, in accordance with the order of payment set forth in Section 11.2, any and all
insurance proceeds paid under the Property Insurance Policy that do not constitute Property
Insurance Proceeds (e.g., proceeds for business interruption or other business loss) shall be
payable to the Operator or another Team Affiliate.
ARTICLE XI
CASUALTY DAMAGE
Section 11.1 Damage or Destruction. If at any time after the Substantial Completion
Date, all or any part of the Stadium Premises shall be damaged or destroyed by a casualty of any
nature (a "Casualty'), the Operator shall (i) promptly secure the area that has been damaged or
destroyed to safeguard against injury to Persons or property, and (ii) subject to Sections 11.2,
11.3 and 11.4, to the extent Applicable Laws permit, repair, restore, replace and/or rebuild (such
work being "Casualty Repair Work") the Stadium Premises as nearly as practicable to a
condition that is at least substantially equivalent to that existing immediately before the Casualty,
with such changes and alterations thereto as the Operator shall request and the County
Representative and City Representative shall approve, which approval shall not be unreasonably
withheld, conditioned or delayed. The Casualty Repair Work shall commence not later than one
hundred eighty (180) days after the Casualty occurs, which time shall be extended (provided the
Operator is proceeding with reasonable diligence to commence the work) by such reasonable
time as is commensurate with any delays due to adjustment of insurance, proceedings under
Section 11.2(c), preparation of any necessary plans and specifications, bidding of contracts,
obtaining of all required approvals and events of Force Majeure. The Casualty Repair Work
shall be performed in accordance with Applicable Law.
Section 11.2 Insurance Proceeds.
(a) Requirements for Disbursement. If Property Insurance Proceeds paid with
respect to a Casualty are less than or equal to Two Million Five Hundred Thousand Dollars
($2,500,000), such proceeds shall be paid and delivered to the Operator. Except as provided in
Sections 11.2(b), 11.2(c), 11.3 and 11.4, such Property Insurance Proceeds shall be held by the
Operator in a segregated account for the purpose of paying the cost of the Casualty Repair Work
and applied to the payment of the costs of the Casualty Repair Work from time to time as the
Casualty Repair Work progresses. If the Property Insurance Proceeds from a Casualty are
M
greater than Two Million Five Hundred Thousand Dollars ($2,500,000), such proceeds shall be
escrowed in an interest bearing account with a financial institution or other party selected by the
Operator and reasonably satisfactory to the County ("Insurance Escrow Agent") pursuant to an
insurance escrow agreement in form and substance reasonably satisfactory to the Operator and
the County (the "Insurance Escrow Agreement"). The Insurance Escrow Agreement shall,
except as set forth in Sections 11.2(b), 11.2(c), 11.3 and 11.4, in all events provide for
disbursement of the Property Insurance Proceeds in accordance with the provisions of this
Article XI, including that the Insurance Escrow Agent shall disburse all Property Insurance
Proceeds available for Casualty Repair Work to such third -party contractors and consultants as
the Operator may direct as the Casualty Repair Work proceeds.
(b) Disbursements of Excess Proceeds. If the Property Insurance Proceeds
exceed the entire cost of the Casualty Repair Work and the insurers have waived their rights to
recover such excess proceeds, the amount of any excess proceeds shall first be paid to the
Operator and the County, pro rata, to the extent it funded any deductible amount, and then
deposited into the Capital Reserve Fund.
(c) Uninsured Losses.
(i) Subject to paragraphs (ii) and (iii) below, the Operator shall be
responsible to fund all deductibles and amounts exceeding any sub -limits due under the Property
Insurance Policy for all Casualty Repair Work as follows: (a) the first $5 million of the
deductible and/or sub -limit excess shall be funded by the Operator; (b) if there is still a shortfall
the Operator shall be entitled to use any funds then on deposit in the Capital Reserve Fund to
fund deductible and pay Casualty Expenses; and (c) if there is still a shortfall, the Operator shall
fund an additional amount up to the amount of the deductible and/or sub -limit excess, not to
exceed $5 million. The $5 million amounts referenced in this paragraph shall be increased each
calendar year, commencing with the first full calendar year after the Substantial Completion
Date, by the percentage increase in the Consumer Price Index for All Urban Consumers in the
Miami area.
(ii) Notwithstanding paragraph (i) above, if the County has been able
to obtain confirmation from the State Insurance Agency that the Property Insurance Policy
coverage is reasonable, the County agrees to be responsible for the deductible costs, and any
amounts exceeding any applicable sub -limit (if one exists), for any claim made under the
Property Insurance Policy for a named storm during the term of this Agreement.
(iii) Notwithstanding anything to the contrary in this Agreement, if the
costs and expenses of the Casualty Repair Work ("Casualty Expenses") exceed the amount of
Property Insurance Proceeds received by the Operator for Casualty Repair Work under Section
11.2(a), the amount of any Government Relief Grants received by the County under Section 11.3
for Casualty Repair Work, the amount of up to $10 million (subject to CPI increase) to be funded
by the Operator for deductibles and sub -limit excesses as provided in paragraph (i) above, and, if
applicable, all amounts then on deposit in the Capital Reserve Fund (the "Insurance
Deficiency'), the Operator 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. If the Parties are unable to identify such funding sources, the Operator, the County
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and the City may jointly elect to terminate this Agreement and the other Stadium Agreements.
Upon any termination of this Agreement under this Section 11.2(c)(iii), the provisions of Section
11.4(b) and Section 17.5.4 shall apply. If the Team Affiliates are unable to use the Baseball
Stadium for more than one (1) year due to a Casualty, the Operator's obligations under this
Agreement shall be abated until they are once again able to use the Baseball Stadium, provided
that (A) the Operator shall not have such abatement right if the Casualty is due to a breach by the
Operator of this Agreement or the negligence of the Operator or the Team, and (B) the
Operator's obligation to make contributions to the Capital Reserve Fund under Section 9.3(b)
shall only be abated if the Team Affiliates are unable to use the Baseball Stadium for more than
two (2) years, in which case the Operator shall remain obligated to make its contributions to the
Capital Reserve Fund during the two (2) year period from the date of the Casualty (i.e., a total of
$1,500,000). Notwithstanding the foregoing, the Team's obligation to remit the annual payment
in accordance with Section 4.9 of this Agreement and Section 7 of the Non -Relocation
Agreement shall not be abated pursuant to the preceding sentence.
Section 11.3 Government Relief Grants. 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 Operator 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.
Section 11.4 Option to Terminate.
(a) Substantial Damage or Destruction. If any Casualty with respect to which
the Operator would have to pay a deductible amount of more than $3,000,000 (increased each
calendar year, commencing with the first full calendar year after the Substantial Completion
Date, by the percentage increase in the Consumer Price Index for All Urban Consumers in the
Miami area) shall occur during the last three (3) Operating Years of the initial Term or during
any Renewal Term, the Operator shall have the right to terminate this Agreement and all other
Stadium Agreements. If the Operator wishes to exercise its right of termination pursuant to the
preceding sentence, it shall do so by notice given to the Government Parties not later than one
hundred eighty (180) days after receipt of a determination under Section 11.4(c). Upon the
service of a notice of termination due to Casualty under this Section 11.4(a), the provisions of
Section 11.4(b) and Section 17.5.4 shall apply.
(b) Application of Proceeds. In the event that this Agreement is terminated
pursuant to the provisions of Section 11.2(c) or 11.4(a), the Property Insurance Proceeds, if any,
payable under the Property Insurance Policy for Casualty Repair Work in respect of the damage
or destruction shall (i) first be used 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 Site to a
clean, unimproved condition or the costs of initially securing and preserving the Stadium
Premises, in light of its then existing state, in a manner such that the Site is in a condition
comparable to its condition on the Acceptance Date; and (ii) any remaining funds after paying (i)
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shall be payable to the Parties in proportion to their Funding Ratios. Any Government Relief
Grants must be utilized for the purposes for which they were obtained.
Section 11.5 Survival. The provisions contained in Section 11.4(b) shall survive
expiration or earlier termination of this Agreement, but only insofar as such provisions relate to
any Casualty that occurred prior to the expiration or earlier termination of this Agreement.
ARTICLE XII
EMINENT DOMAIN
Section 12.1 Total Taking. If, at any time during the Term, title to the whole or any
portion of the Baseball Stadium or any other improvements constructed on the Baseball Stadium
Site is taken in any Condemnation Action (or conveyed in lieu of any such Condemnation
Action) then to the extent such Condemnation Action or conveyance results in an Unusable
Condition and the affected area of the Stadium Premises can not be or are not fully restored
within 12 months of the date of the Condemnation Action (a "Total Taking"), the Operator shall
have the right to (i) terminate this Agreement by giving written notice to the County and the
City, or (ii) elect to use the Condemnation Award to replace or restore the Baseball Stadium or
any other improvements constructed on the Baseball Stadium Site. If the Operator elects to
replace or restore the Baseball Stadium or any other improvements constructed on the Baseball
Stadium Site, then the full amount of any Condemnation Award shall be paid to Operator to be
used to pay for the costs and expenses associated with the replacement or restoration of the
Baseball Stadium or any other improvements constructed on the Baseball Stadium Site. If the
Condemnation Award is not sufficient to pay the costs and expenses related to such replacement
or restoration, the Parties shall pay such deficiency in proportion to their Funding Ratios. The
Government Parties shall have the right to review all construction plans for such restoration work
and to participate in the design and construction process to the same extent and in the same
manner as the Government Parties had under the Construction Administration Agreement for the
original construction of the Baseball Stadium..
Section 12.2 Partial or Temporary Taking. In the event of a Condemnation Action that
does not constitute a Total Taking under Section 12.1 (a "Partial Taking") or any Condemnation
Action that results in a temporary taking of the use of any portion of the Baseball Stadium or
any other improvements constructed on the Baseball Stadium Site or the Operating Rights (a
"Temporary Taking"), the Term shall not be reduced or affected in any way, and the Operator
shall promptly commence and diligently proceed to repair, alter and restore the part of the
Baseball Stadium or any other improvements constructed on the Baseball Stadium Site not taken
to substantially its former condition. The Government Parties shall have the right to review all
construction plans for such restoration work and to participate in the design and construction
process to the same extent and in the same manner as the Government Parties had under the
Construction Administration Agreement for the original construction of the Baseball Stadium.
The full amount of any Condemnation Award shall be paid to Operator to be used to pay for the
costs and expenses associated with the restoration of the Baseball Stadium or any other
improvements constructed on the Baseball Stadium Site. If the Condemnation Award is not
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sufficient to pay such costs and expenses, the Operator may elect to (a) terminate this Agreement
or (b) have the Parties shall pay such deficiency in proportion to their Funding Ratios.
Section 12.3 Condemnation Proceedings and Awards.
(a) Upon the commencement of any Condemnation Action under Section 12.1
or 12.2 above, (i) the Government Parties shall undertake all commercially reasonable efforts to
defend against, and maximize the Condemnation Award from, any such Condemnation Action,
(ii) the Government Parties shall not accept or agree to any Condemnation Award of conveyance
in lieu of any Condemnation Action without the prior consent of the Operator, which consent
shall not be unreasonably withheld, and (iii) the Parties shall cooperate with each other in any
such Condemnation Action and provide each other with such information and assistance as each
shall reasonably request in connection with such Condemnation Action. The Parties
acknowledge that the Operating Rights are valuable contract rights, the Operator has a
reasonable expectation to enjoy such rights during the Term, and the Operator and other Team
Affiliates have the right to assert any claim for any damages arising from any Condemnation
Action to which the Team Affiliates may be entitled under Applicable Law. If the Operator or
other Team Affiliates are determined not to have standing to assert any claim for damages it
would make under this Article XII, then, to the extent such damages may be awarded to the
Government Parties, the Government Parties shall assert any reasonable claims for such damages
and provide a portion of any awarded damages to the Operator or other Team Affiliates in
accordance with this Article XII.
(b) If, as permitted under Section 12.1, the Operator elects not to restore the
Stadium Premises or any other improvements constructed on the Baseball Stadium Site or if the
cost and expense of restoration of the Stadium Premises or any other improvements constructed
on the Baseball Stadium Site is less than the amount of the Condemnation Award, then the
Parties agree to distribute any such remaining Condemnation Award between the Parties in
proportion to the Party's Funding Ratios.
(c) The rights and remedies provided in this Article XII shall be cumulative
and shall not preclude any Party from asserting any other right, or seeking any other remedies
against the other party as may be permitted under Applicable Law.
ARTICLE XIII
INDEMNIFICATION
Section 13.1 Indemnification byOperator.
(a) The Operator shall indemnify, defend and hold harmless each Government
Party and its officers, employees, attorneys, agents and instrumentalities (collectively,
"Government Indemnitees") from any and all liability, losses or damages, including attorneys'
fees and costs of defense (collectively, "Losses"), which the Government Indemnitees may incur
as a result of claims, demands, suits, causes of action or proceedings of any kind or nature arising
out of, relating to or resulting from the performance of this Agreement by the Operator, its
Affiliates or its employees, agents, servants, principals or subcontractors. The Operator shall pay
all Losses in connection therewith and shall investigate and defend all claims, suits or actions of
any kind or nature in the name of the Government Indemnitees, where applicable, including
appellate proceedings, and shall pay all costs, judgments and attorneys' fees which may issue
thereon. The Operator expressly understands and agrees that, subject to Section 13.4, any
insurance protection required by this Agreement or otherwise provided by the Operator shall in
no way limit the responsibility to indemnify, keep and save harmless and defend the Government
Indemnitees as herein provided.
(b) Notwithstanding the provisions of Section 13.1(a), the Operator shall be
required to defend but shall not be required to indemnify for any Losses arising from or in
connection with:
(i) any injury to or death of a Person or any damage to property
(including loss of use) to the extent caused by the negligence or willful act of any Government
Indemnitee or their respective representatives or contractors;
(ii) any violation by a Government Party of any provision of this
Agreement, any other Stadium Agreement or any Applicable Law or insurance policies now or
hereafter in effect and applicable to such Government Party;
(iii) any Challenge (which shall be addressed in accordance with the
terms set forth in this Agreement) and any Community Event (which indemnification shall be set
forth in the applicable license agreement); or
(iii) any Loss arising from or relating to a Force Majeure.
Section 13.2 Indemnification by Government Parties.
13.2.1 City Indemnification. The City does hereby agree to indemnify and hold
harmless the Operator and the Team (collectively, "Operator Indemnitees") to the extent and
within the limitations of Section 768.28 Fla. Stat., and subject to the provisions of that Statute
whereby the City shall not be held liable to pay a personal injury or property damage claim or
judgment by any one person which exceeds the sum set forth in said statute, or any claim or
judgments of portions thereof, which, when totaled with all other occurrences, exceeds the sum
set forth in said statute, from any and all personal injury or property damage claims, liabilities,
losses and causes of action arising from the same claim which may arise solely as a result of the
negligence of the City in connection with its rights and obligations under this Agreement.
However, nothing herein shall be deemed to indemnify the Operator from any liability or claim
arising out of the negligent performance or failure of performance of the Operator or its
employees, agents, servants, partners, principals or subcontractors, or the Team, the Team
Affiliates, or any unrelated third party. The Operator expressly understand and agree that,
subject to Section 13.4, 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 Operator Indemnitees as herein provided.
13.2.2 County Indemnification. The County does hereby agree to indemnify and
hold harmless the Operator Indemnitees to the extent and within the limitations of Section
768.28 Fla. Stat., and subject to the provisions of that Statute whereby the County shall not be
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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 Operator from any liability or claim arising out of the negligent
performance or failure of performance of the Operator or its employees, agents, servants,
partners, principals or subcontractors, or the Team, the Team Affiliates, or any unrelated third
party. The Operator expressly understand and agree that, subject to Section 13.4, 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 Operator Indemnitees as
herein provided.
13.2.3 Notwithstanding the provisions of Section 13.2, the Government Parties
shall not be liable for any Losses arising from or in connection with:
(i) any injury to or death of a Person or any damage to property
(including loss of use) to the extent caused by the negligence or willful act of any Operator or its
Affiliates, Users or Service Providers, representatives or contractors;
(ii) any violation by the Operator, its Affiliates, Users or Service
Providers of any provisions of this Agreement, any other Stadium Agreement or any Applicable
Law or insurance policies now or hereafter in effect and applicable to the Operator;
(iii) any other matter for which the Operator, its Affiliates, Users or
Service Providers is obligated to provide indemnification under this Agreement or any other
Stadium Agreement; or
(iv) any Loss arising from or relating to a Force Majeure.
13.2.4 Nothing in this Article XIII shall limit the Operator's right to damages or
other available legal remedies upon a breach of this Agreement by a Government Party.
Section 13.3 Indemnification Procedures.
(a) If any Person entitled to indemnification pursuant to this Article XIII (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 XIII, 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
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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 XIII. These provisions in no way prevent the Indemnified
Party from taking whatever actions are necessary to defend the Claim during the time before the
Indemnified Party learns whether the Indemnitor will contest or defend the Claim. Attorneys'
fees and costs accrued by the Indemnified Party during this time are indemnifiable. If required
by the Indemnitor, the Indemnified Party shall cooperate fully with the Indemnitor and its
attorneys in contesting or defending any such Claim or, if appropriate, in making any
counterclaim or cross complaint against the Person asserting the Claim against the Indemnified
Party, but the Indemnitor will reimburse the Indemnified Party for any expenses reasonably
incurred by the Indemnified 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
XIII, 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.
Section 13.4 Insurance Recoveries. Subject to Section 10.4, the indemnification
amounts due to any Indemnified Party under this Agreement shall be reduced by any insurance
proceeds received by, or applied on behalf of, such Person from the Insurance Policies for such
claims.
Section 13.5 Survival. The indemnities contained in this Article XIII shall survive the
expiration or earlier termination of this Agreement, but only insofar as such indemnities relate to
any Losses that arose prior to the expiration or earlier termination of this Agreement.
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ARTICLE XIV
ASSIGNMENTS AND TRANSFERS
Section 14.1 Operator Assignments. The Operator shall not sell, assign, convey,
transfer or pledge (each, a "Transfer") this Agreement or any of its rights under this Agreement,
without the prior written consent of the County Representative, which consent may be withheld
or conditioned in the County Representative's sole discretion.
Section 14.2 Permitted Transfers. Notwithstanding Section 14.1 or any other
provision of this Agreement, the following Transfers shall be permitted without the consent of
the County Representative or any other Person:
(a) the Operator may 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 MLB franchise owned by the Team with the approval of MLB, provided that (i) the Operator
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
Government Representatives with evidence reasonably satisfactory to the Government
Representatives that the proposed Transfer has been approved by Major League Baseball, (ii)
such transferee or its Affiliates execute and deliver to the County Representative an agreement,
in form and substance reasonably satisfactory to the County Representative, to assume all of the
obligations of the Operator under this Agreement and to keep and perform all provisions of this
Agreement, (iii) such transferee or its Affiliate that acquires the Team's MLB franchise assumes
in writing all obligations of the Team under the Non -Relocation Agreement, and (iv) such
transferee or its Affiliates assume in writing all of the obligations of the Operator and its
Affiliates under the other Stadium Agreements;
(b) the Operator may Transfer any or all of its rights and obligations
hereunder to one or more Affiliates of the Operator, including the Team; and
(c) the Operator may, subject to Section 14.8, pledge, collaterally assign,
grant a security interest in, or otherwise encumber, this Agreement or any or all of its rights
hereunder to any Secured Party or other provider, guarantor or insurer of financing to the
Operator or its Affiliates.
Section 14.3 Release of O ep rator. The Operator shall be relieved of its obligations
under this Agreement from and after the date of a Transfer permitted by Section 14.2(a) or (b)
above, or a Transfer approved by the County Representative pursuant to Section 14.1 above. No
other Transfer of this Agreement (including a pledge, collateral assignment or grant of a security
interest permitted by Section 14.2(c) above), the other Stadium Agreements, or any interest in
such agreements or any direct or indirect ownership interests in the Operator shall be deemed to
release the Operator from any of its obligations under this Agreement or any other Stadium
Agreement to which it is a party.
Section 14.4 Transactions that are not Transfers. For the avoidance of doubt, and
notwithstanding anything contained in this Agreement to the contrary, the Parties confirm that
the Operator shall have the right, subject to the terms and provisions of this Agreement, to do
each of the following without the consent of the Government Parties or their representatives and
without such action being considered a Transfer:
(a) to enter into Use Agreements and Service Agreements; and
(b) otherwise to sell or grant to Persons (whether on a long-term or short-
term, or continuing or periodic basis) licenses, usage or similar rights and otherwise grant to
Persons rights to use, enjoy, service or maintain any part of the Stadium Premises, including the
Premium Seating, other seating areas, parking areas, restaurant or retail areas for any purpose
related to the use, operation, exploitation or management of the Stadium Premises.
Section 14.5 Transfers by Government Parties. Without the prior written consent of the
Operator, which may be withheld or conditioned in the Operator's sole discretion, the
Government Parties shall not (a) permit any lien, charge or other encumbrance arising by,
through, under or from the acts or omissions of any Government Party, to exist upon, this
Agreement, any right, title or interest in or under this Agreement or in the Stadium Premises or
any portion thereof, or (b) Transfer this Agreement, any portion of the Stadium Premises, any of
their rights or obligations under this Agreement or any of their rights in or to the Stadium
Premises. Notwithstanding the foregoing, this Section shall not act as a prohibition against any
Transfer of this Agreement by a Government Party to any of its Government Entities, provided
that such Transfer does not have a material adverse impact on any Team Affiliate. In no event
shall the County be obligated to encumber the County's fee simple interest in the Baseball
Stadium Site.
Section 14.6 Transfers Void. Any Transfer by a Party in violation of this Article XIV
shall be void ab initio and of no force or effect.
Section 14.7 Compliance Certificate. Each of the Parties shall, upon the reasonable
request of another Party (or any current or prospective source, guarantor or insurer of financing
for the Operator or any of its Affiliates, any transferee or assignee pursuant to a Transfer
permitted under Section 14.2, any User pursuant to an existing or prospective Use Agreement or
any Service Provider pursuant to an existing or prospective Service Agreement), execute and
deliver to the appropriate parties a certificate stating:
(a) that this Agreement is unmodified and is in full force and effect (or, if
there have been modifications, that this Agreement is in full force and effect as modified
and stating the modifications or, if this Agreement is not in full force and effect, that such
is the case);
(b) to the knowledge of the Party providing the certificate, that there are no
defaults by it or the other Parties (or specifying each such default as to which it may have
knowledge);
(c) confirmation of the commencement and expected expiration dates of the
Term;
(d) to its knowledge, whether there are any counterclaims against the
enforcement of any Party's obligations; and
(e) any other matters reasonably requested.
Section 14.8 Collateral Assi mom. Without limiting its rights under Section 14.2, the
Operator may grant a Collateral Assignment to any Secured Party, upon the condition that (a) all
rights acquired under each Collateral Assignment shall be subject to the terms of this Agreement,
and (b) the Operator shall provide the Government Parties with the name and address of the
Secured Party under the Collateral Assignment. Notwithstanding anything to the contrary in this
Agreement or any other Stadium Agreement, to the extent the Operator or the Secured Party has
not notified a Government Party as provided in the preceding sentence, such Government Party
shall have no obligation to give the Secured Party any notices pursuant to this Agreement or any
other Stadium Agreement. With respect to each Collateral Assignment and Secured Party, the
Government Parties agree that following written receipt of such notice, and as long as such
Collateral Assignment remains unsatisfied or until written notice of satisfaction is given by the
Operator or the Secured Party to the County Representative, the following provisions shall apply:
(a) The Secured Party shall have the right, but not the obligation, to perform
any covenant or agreement under this Agreement to be performed by the Operator (and the
County agrees the Secured Party may enter the Stadium Premises (or any part thereof) for
purposes of effecting such performance), and the County and City shall accept such performance
by any Secured Party as if such performance was made by the Operator.
(b) The Government Parties shall, upon providing the Operator any notice of
(i) default under this Agreement, (ii) termination of this Agreement, or (iii) a matter on which the
Government Party may predicate or claim a default, at the same time provide a copy of such
notice to the Secured Party previously identified in writing to the Government Representatives
pursuant to this Section 14.8. From and after the date such notice has been given to the Secured
Party, the Secured Party shall have the right (but not the obligation) to cure the Operator's
defaults within thirty (30) days (the "Secured Party's Grace Period") following the later of (x) its
receipt of the Government Party's notice with respect to such default and (y) the expiration of the
grace period, if any, provided to the Operator to cure such default, subject to extension of such
Secured Party's Grace Period for the additional periods of time specified in subsections (c) and
(d) of this Section 14.8. The effectiveness of any Operator Default shall be suspended for all
purposes under this Agreement during the Secured Party's Grace Period. The County and City
shall accept such performance by or at the direction of the Secured Party as if the same had been
done by the Operator. The Operator authorizes the Secured Party to take any such action at the
Secured Party's option and does hereby authorize entry (and the County agrees to permit such
entry) upon the Stadium Premises by the Secured Party for such purposes. If more than one
Secured Party shall seek to exercise the rights provided for in this Section 14.8, the Secured
Party with the most senior lien priority (or with the senior priority right established under an
intercreditor agreement) shall be entitled, as against the others, to priority in the exercise of such
rights.
(c) Notwithstanding anything contained in this Agreement to the contrary, the
Government Parties shall have no right to terminate this Agreement in any circumstance where
50
termination otherwise would be allowed under this Agreement unless, following the expiration
of the Secured Party's Grace Period, the Government Parties shall notify the Secured Party of the
Government Parties' intent to so terminate at least thirty (30) days in advance of the proposed
effective date of such termination (if such default is capable of being cured by the payment of
money), and at least sixty (60) days in advance of the proposed effective date of such termination
(if such default is not capable of being cured by the payment of money). The provisions of
subsection (e) below shall apply only if, during such 30 -day or 60 -day termination notice period,
the Secured Party shall:
(i) notify the Government Parties of the Secured Party's desire to
effect a cure of all defaults reasonably susceptible of cure by such Secured Party;
(ii) pay or cause to be paid all monetary obligations of the Operator
under this Agreement and the City Parking Agreement (A) then due and in arrears as
specified in the termination notice to the Secured Party and (B) any of the same that
become due during such 30 -day or 60 -day period, as the case may be, as andwhen they
become due; and
(iii) comply, or with reasonable diligence commence in good faith to
comply, with all non -monetary requirements of this Agreement then in default by the
Operator and reasonably susceptible of being complied with by Secured Party; provided,
however, that the Secured Party shall not be required during such 30 -day or 60 -day
period to cure or commence to cure any default consisting of the Operator's failure to
satisfy and discharge any lien, charge or encumbrance against the Operator's interest in
this Agreement or the Stadium Premises.
(d) (i) If the Government Parties shall elect to terminate this Agreement
in any circumstance where termination otherwise would be allowed under this
Agreement, and the Secured Party shall have proceeded in the manner provided for by
Section 14.8(c), this Agreement shall be deemed not terminated as long as the Secured
Party shall:
(A) pay or cause to be paid the monetary obligations of the
Operator under this Agreement as the same become due, and continue its
good faith efforts to perform all of the Operator's other obligations under
this Agreement, except (1) obligations of the Operator to satisfy or
otherwise discharge any lien, charge or other encumbrance against the
Operator's interest in this Agreement or the Stadium Premises, (2) past
obligations then in default, and (3) defaults not reasonably susceptible of
being cured by the Secured Party; and
(B) if not enjoined or stayed, take commercially reasonable
steps (subject to the effects of any Force Majeure, which for this purpose
shall include causes beyond the reasonable control of the Secured Party
instead of causes beyond the control of the Operator) to acquire or sell the
Operator's interest in this Agreement by foreclosure of the Collateral
Assignment or other appropriate and lawful means.
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Nothing contained in this Section 14.8(d)(i) shall be construed to extend this Agreement
beyond the original Term hereof, nor to require the Secured Party to continue such
foreclosure proceedings after all defaults have been cured. If all defaults are cured and
the Secured Party discontinues such foreclosure proceedings, this Agreement shall
continue in full force and effect as if the Operator had not defaulted under this
Agreement. If a Secured Party shall obtain possession of all or a portion of the
Operator's interest in or rights under this Agreement by the initiation of foreclosure,
power of sale or other enforcement proceeding under any Collateral Assignment, or by
obtaining an assignment thereof in lieu of foreclosure or through settlement of or arising
out of any pending or threatened foreclosure proceeding, and shall have assumed the
Operator's obligations under this Agreement pursuant to an instrument reasonably
satisfactory to the County, then any termination notice will be deemed to have been
withdrawn and all alleged defaults described therein waived or satisfied, and all rights of
the Operator under this Agreement which may have been terminated or suspended by
virtue of such notice or alleged defaults shall be reinstated in favor of such Secured Party.
(ii) The making or granting of a Collateral Assignment shall not be
deemed to constitute an assignment or Transfer of this Agreement or the Operator's
rights hereunder, nor shall the Secured Party, as such, be deemed to be an assignee or
transferee of this Agreement or the Operator's rights hereunder (other than as collateral
assignee), so as to require the Secured Party, as such, to assume the performance of any
of the terms, covenants or conditions on the part of the Operator to be performed
hereunder, unless the Secured Party shall acquire the rights under this Agreement in any
proceedings for the foreclosure of the Collateral Assignment, by deed in lieu of
foreclosure or any other lawful means.
(e) If this Agreement is terminated in whole or in part for any reason,
including the rejection or disaffirmance of this Agreement in connection with a bankruptcy,
insolvency or similar proceeding by or against the Operator, the Government Parties shall
promptly provide the Secured Party with written notice that this Agreement has been terminated
(the "New Agreement Notice"), together with a statement of all sums that would at that time be
due under this Agreement and the City Parking Agreement but for such termination, and of all
other defaults, if any, then known to the Government Parties. The Government Parties hereby
agree to enter into a new operating agreement (a "New Agreement") with respect to the Stadium
Premises with the Secured Party or its designee for the remainder of the Term of this Agreement,
effective as of the date of termination, upon the same terms, covenants and conditions of this
Agreement, provided that:
(i) The Secured Party shall make a written request upon the
Government Parties for such New Agreement within thirty (30) days after the date that
the Secured Party receives the New Agreement Notice given pursuant to this Section
14.8(e).
(ii) The Secured Party shall pay or cause to be paid to the County and
the City, at the time of the execution and delivery of such New Agreement, any and all
sums that would at the time of execution and delivery thereof be due pursuant to this
Agreement and the City Parking Agreement (as applicable) but for such termination and,
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in addition thereto, all reasonable out-of-pocket expenses, including reasonable attorneys'
fees, which the County and the City shall have incurred by reason of such termination
and the execution and delivery of the New Agreement and that have not otherwise been
received by the County and the City (as applicable) from the Operator or other party in
interest. In the event of a controversy as to the amount to be paid to the County and/or
the City pursuant to this Section 14.8(e)(ii), the payment obligation shall be satisfied if
the County and/or the City (as applicable) is paid the amount not in controversy, and the
Secured Party agrees to pay any additional sum ultimately determined to be due. The
Parties shall cooperate to determine any disputed amount promptly in accordance with
the terms of this Agreement.
(iii) Upon execution and delivery of the New Agreement, the Secured
Party shall agree to remedy any Operator Default described in the New Agreement
Notice that is reasonably capable of being cured by the Secured Party. If, commencing
on the effective date of the New Agreement, the Secured Party fails to cure all such
defaults within the time periods required, such failure shall constitute an event of default
under the New Agreement and the Government Parties shall have all rights and remedies
with respect thereto provided in the New Agreement.
(iv) Any New Agreement made pursuant to this Section 14.8(e) shall
have the same priority with respect to any lien, charge or encumbrance on the Stadium
Premises, or any part thereof, as this Agreement, and the operator under such New
Agreement shall have the same right, title and interest in and to the Stadium Premises as
the Operator has under this Agreement as of the date of the New Agreement.
(v) Concurrently with the execution and delivery of such New
Agreement, the Government Parties shall assign and, to the extent held by a Government
Party, pay over to the operator named therein all of its right, title and interest in and to (i)
moneys then held by or payable to the Government Parties which the Operator would
have been entitled to receive but for termination of this Agreement or the Government
Party's exercise of its rights upon the occurrence of an Operator Default, and (ii) any
permits, licenses or other agreements that are necessary to operate the applicable portion
of the Stadium Premises and are not otherwise assigned to the operator named in such
New Agreement pursuant to the terms of the New Agreement. From the date the County
receives written notification from a Secured Party of its intention to cure defaults
pursuant to this Section 14.8(e), to the date of execution and delivery of the New
Agreement (provided such execution and delivery shall be timely as provided in Section
14.8(e)(i)), if a Secured Party shall have requested such New Agreement as provided in
this Section 14.8(e), the County shall not enter into any new Use Agreements or Service
Agreements with respect to the Stadium Premises, cancel or modify any then existing
Use Agreements or Service Agreements with respect to the Stadium Premises, or accept
any cancellation, termination or surrender thereof (unless such termination shall be
effected as a matter of law on the termination of this Agreement or such agreements shall
have expired in accordance with their respective terms) that would adversely affect the
interest of the operator under the New Agreement without the written consent of the
Secured Party.
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(f) Nothing contained in this Agreement shall require the Secured Party to (x)
discharge any liens, charges or encumbrances against the Stadium Premises or the Operator's
interests in or rights under this Agreement, (y) cure the bankruptcy, insolvency or any related or
similar condition of the Operator, or (z) cure any default of the Operator which by its terms is not
reasonably susceptible of being cured by the Secured Party, in order to comply with the
provisions of Section 14.8(b) or (c), or as a condition to its exercise of rights hereunder or of
entering into the New Agreement. No default, and no obligation of the Operator, the cure or
performance of which requires possession of the Stadium Premises shall be deemed reasonably
susceptible of cure or performance by the Secured Party or a successor to the Operator's interest
under this Agreement or a New Agreement if the Secured Party or such successor is not in
possession of the Stadium Premises.
(g) A standard clause naming the Secured Party as an additional insured may
be added to the Property Insurance Policy and any and all other insurance polices required to be
carried by the Operator under Article X, in each case, on the condition that, to the extent
applicable, the Property Insurance Proceeds payable under any of such policies are to be applied
in the manner specified in this Agreement.
(h) Notices from the Government Parties to the Secured Party shall be mailed
to the address or addresses furnished to the Government Parties pursuant to the first paragraph of
this Section 14.8, and notices from the Secured Party to the Government Parties shall be mailed
to the address or addresses designated pursuant to the provisions of Section 19.1. Such notices,
demands and requests shall be given in the manner described in Section 19.1 and shall in all
respects be covered by the provisions of that Section.
(i) If this Agreement is rejected in connection with a bankruptcy proceeding
by the Operator or a trustee in bankruptcy for the Operator, such rejection shall be deemed an
assignment by the Operator to the Secured Party of all of the Operator's interest under this
Agreement, and this Agreement shall not terminate and the Secured Party shall have all rights
and obligations of the Secured Party under this Section 14.8, as if such bankruptcy proceeding
had not occurred, unless the Secured Party shall reject such deemed assignment by notice in
writing to the Government Parties within thirty (30) days following rejection of this Agreement
by the Operator or the Operator's trustee in bankruptcy. If any court of competent jurisdiction
shall determine that this Agreement shall have been terminated notwithstanding the terms of the
preceding sentence as a result of rejection by the Operator or the trustee in connection with any
such proceeding, the rights of the Secured Party to a New Agreement from the Government
Parties pursuant to Section 14.8(e) shall not be affected thereby.
0) Notwithstanding any provision in this Agreement to the contrary (but
subject to any contrary agreements between the Operator and the Secured Party) in the event of
any Casualty to, or Condemnation Action affecting, the Stadium Premises or any portion thereof
during such time as any Collateral Assignment(s) are in effect, the Secured Party which is the
holder of the most senior Collateral Assignment (either under Applicable Law or pursuant to an
intercreditor agreement) which includes a pledge and/or additional assignment of any Property
Insurance Proceeds and/or Condemnation Awards otherwise payable to the Operator hereunder
shall have the right to direct the use of all such Property Insurance Proceeds, Condemnation
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Awards and similarly derived funds to which the Operator may have rights in accordance with
this Agreement on behalf of the Operator.
(k) Notwithstanding anything to the contrary set forth in this Section 14.8, no
Secured Party shall be liable under this Agreement unless and until such time as it becomes the
owner of the applicable portion of the Operator's interests under this Agreement securing its
Collateral Assignment, and then only for such obligations of the Operator which accrue during
the period while it remains the owner of such interests; if a New Agreement in favor of the
Secured Party is in place, the terms thereof shall prevail.
(1) The Government Parties agree to enter into such additional and further
agreements as any Secured Party reasonably shall request to confirm and give effect to the rights
of the Secured Party as provided in this Section 14.8, as long as such agreements do not increase
the Government Parties' obligations or reduce the Operator's obligations under this Agreement
in any material respect.
ARTICLE XV
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 15.1 County Representations, Warranties and Covenants. The County
represents, warrants and covenants to the Operator 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 Stadium Premises). The County Mayor or his designee executing this
Agreement is the individual 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) The execution, delivery and performance of this Agreement by the County
are not prohibited by and do not conflict in any material respect 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 Stadium Premises and
the transactions contemplated in and by this Agreement; and the County is not in default with
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respect to any judgment, order, injunction or decree of any Governmental Authority which is in
any respect material to the transactions contemplated in and by this Agreement.
(d) Except as otherwise disclosed to the Team and/or the Operator 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 use and operation of the Stadium
Premises as contemplated in and by this Agreement.
(e) If any lien, encumbrance, easement, license, right-of-way, covenant,
condition, restriction, or other title defect (a "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 Operator, the Team or their respective agents, contractors, employees and tenants, which
will materially diminish, impair or disturb the rights of the Operator under this Agreement with
respect to the Stadium Premises, the County shall take all reasonable actions, at its sole cost and
expense, to promptly eliminate such Title Defect. The Operator acknowledges that utility
easements and other matters expressly permitted in this Agreement shall not constitute a Title
Defect. Except as expressly permitted under this Agreement, the County shall not create any
lien, encumbrance, easement, license, right-of-way, covenant, condition or restriction which
would encumber the Stadium Premises and materially diminish, impair or disturb the rights of
the Operator under this Agreement.
Section 15.2 City Rgpresentations, Warranties and Covenants. The City represents,
warrants and covenants to the Operator 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 Stadium Premises). The City Manager or his designee executing this Agreement 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) The execution, delivery and performance of this Agreement by the City
are not prohibited by and do not conflict in any material respect with any other agreements,
instruments, judgments or decrees or other restriction of any Governmental Authority, to which
the City is a party or is otherwise subject.
(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 Stadium Premises 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.
(d) Except as otherwise disclosed to the Operator 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 use and operation of the Stadium Premises as contemplated in
and by this Agreement.
(e) If a Title Defect arises subsequent to the execution of this Agreement
which is created by, through or under the City or one of its Government Entities and not by the
acts of the Operator, the Team or their respective agents, contractors, employees and tenants,
which will materially diminish, impair or disturb the rights of the Operator under this Agreement
with respect to the Stadium Premises, 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,
encumbrance, easement, license, right-of-way, covenant, condition or restriction which would
encumber the Stadium Premises and materially diminish, impair or disturb the rights of the
Operator under this Agreement.
Section 15.3 Operator Representations, Warranties and Covenants. The Operator
represents, warrants and covenants to the County and the City that:
(a) The Operator is a limited liability company duly organized 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 constitutes the valid and
legally binding obligation of the Operator, enforceable against the Operator in accordance with
its terms.
(b) The execution, delivery and performance by the Operator of this
Agreement have been duly authorized by all necessary limited liability company action by the
Operator and do not violate the Operator's certificate of formation or limited liability company
agreement, or the MLB Constitution or, any provision of MLB Rules and Regulations, or result
in the breach in any material respect of or constitute a default in any material respect under any
loan or credit agreement, or other agreement or instrument to which the Operator is a party or by
which the Operator or its assets may be bound or affected. All consents and approvals of any
Person (including members of the Operator, if necessary) required in connection with the
Operator's execution of this Agreement have been obtained.
(c) Except as otherwise disclosed to the County and City in writing, to its
knowledge, no suit is pending against or affects the Operator which has been served upon or of
which the Operator has knowledge which could have a material adverse affect upon the
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Operator's performance under this Agreement or the financial condition or business of the
Operator. There are no outstanding judgments against the Operator.
(d) The Operator has not paid or given, and will not pay or give, any third
person any money or other consideration for obtaining this Agreement, 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 are not
prohibited by and do not conflict in any material respect with any other agreements, instruments,
judgments or decrees or other restriction of any Governmental Authority, or any provision of
MLB Rules and Regulations, to which the Operator is a party or is otherwise subject.
(f) The Operator has received no notice as of the date of execution of this
Agreement asserting any noncompliance in any material respect by the Operator with any
Applicable Laws with respect to the transactions contemplated in and by this Agreement; and the
Operator 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.
(g) If any lien, covenant, condition, encumbrance or other restriction arises
subsequent to the execution of this Agreement which is created by, through or under the
Operator, the Team, any Team Affiliate or their agents and not by the acts of the Government
Parties or their respective agents, which will materially diminish, impair or disturb the rights of
the Government Parties under this Agreement with respect to the Stadium Premises, the Operator
shall take all reasonable actions, at its sole cost and expense, to promptly eliminate such lien,
covenant, condition, encumbrance or restriction. Except as expressly permitted under this
Agreement, the Operator shall not create any lien, covenant, condition, encumbrance or other
restriction which would encumber the Stadium Premises and materially diminish, impair or
disturb the rights of the Government Parties under this Agreement.
(h) After the Substantial Completion Date, (i) the Operator shall maintain,
keep current and comply in full with any and all permits, consents and approvals required by
Environmental Laws with respect to, and its use and operation of, the Stadium Premises and the
performance of its obligations under this Agreement, and (ii) the Operator shall comply and shall
cause the Stadium Premises to be in compliance with all Environmental Laws and shall not
conduct or allow any use of or activity on or under the Stadium Premises over which the
Operator exercises control that will violate or threaten to violate any Environmental Law;
provided, however, that the Operator's obligations pursuant to this Section 15.3(g) shall not
release the County or City from obligations otherwise required by this Agreement or the other
Stadium Agreements. The Operator shall promptly notify the County if the Operator has actual
knowledge of any noncompliance or any potential noncompliance with any Environmental Law
or receives any written or oral notification from any Governmental Authority or any third party
regarding any noncompliance or threatened or potential noncompliance with, or any request for
any information pursuant to, any Environmental Law.
(i) The Operator covenants and agrees to retain sufficient stadium revenues
and stadium revenue streams, whether arising from the Revenue Rights or otherwise from the
operation or use of the Baseball Stadium, adequate to meet all of its obligations under this
Agreement. Further, the Operator covenants that in the event that there are any unpaid
obligations under this Agreement for which the Operator shall not have adequate reserves or
reasonably anticipated revenues from the aforementioned sources, and which are not being
contested by the Operator in good faith, then the Operator shall not make any further payments
to the Team under its license agreement with the Team or any distributions of stadium revenues
to the Team Affiliates and/or its partners until all such obligations have been fully satisfied.
0) Simultaneously with the execution and delivery of this Agreement, the
Team has executed and delivered to the Government Parties the Non -Relocation Agreement.
(k) To Operator's knowledge, no MLB Rule and Regulation, in any material
manner or respect, prohibits or limits the right or power of the Operator to enter into or accept
each of the terms, commitments and provisions of this Agreement or adversely affects the ability
or right of the Team to play its MLB Home Games at the Baseball Stadium.
Section 15.4 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 except to the extent such actions by the
County require approval by the Board.
(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 the other Stadium Agreements. Subject to
the preceding sentence, no such challenge may be asserted by any Party except by the institution
of a declaratory action in which the Parties and the Team are parties.
(d) Each Party shall vigorously contest any challenge to the validity,
authorization or enforceability of this Agreement or the City Parking Agreement (a
"Challenge"), whether asserted by a taxpayer or any other Person, except where to do so would
be deemed by such Party as presenting a conflict of interest or would be contrary to Applicable
Law. The applicable Party shall pay all of the legal fees, costs and other expenses incurred by it
in contesting the Challenge. The applicable Party shall consult with the Parties in contesting any
Challenge. The Parties shall take all ministerial actions and proceedings reasonably necessary or
appropriate to remedy any apparent invalidity, lack or defect in authorization, or illegality, or to
cure any other defect, which has been asserted or threatened except with respect to the County or
City, any such action which requires approval of the Board or Commission, as the case may be,
59
or is not deemed by the County or City to present a conflict of interest or is not deemed by the
County or City, as the case may be, to be contrary to Applicable 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 XV 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 15.1(d), 15'.2(d) and 15.3(c) and any Challenge referred to in Section 15.4(d).
(f) During the Term, the County shall comply with all Applicable Laws
relating to its ownership of the Stadium Premises, and each Government Party shall comply with
all Applicable Laws relating to the exercise of its rights and performance of its obligations under
this Agreement and the other Stadium Agreements, but not with respect to the use, operation and
management of the Baseball Stadium by the Operator (which shall be the responsibility of the
Operator, except as specifically provided below). The County in its capacity as owner of the
Stadium Premises shall execute such documents and file such documents and reports, with any
filing fees or other costs to be paid by the Operator, as may be reasonably necessary to enable the
Operator and its Affiliates to obtain and maintain all necessary permits and licenses that are
required of an owner of the Stadium Premises. With regard to any entry by the County or the
City into the Stadium Premises for any permitted purpose, the County or the City, as applicable,
shall comply with all Applicable Laws relating to such entry. The Government Parties shall
obtain or cause to be obtained all necessary permits and licenses required for the conduct of
Community Events and shall comply with all Applicable Laws (and all rules and regulations of
the Operator applicable to the conduct of Stadium Events) relating to the conduct of Community
Events.
(g) During the Term, the Operator, in connection with its use and the exercise
of its rights with respect to the Stadium Premises, shall comply with all Applicable Laws relating
to such use and exercise, including environmental laws, and the Operator shall be responsible for
causing the Stadium Premises to be in compliance with all Applicable Laws, all at the Operator's
sole cost and expense. The applicable Government Party shall, in connection with its use and the
exercise of its rights with respect to the Stadium Premises for Community Events, shall comply
with all Applicable Laws relating to such use and exercise, including environmental laws. The
Operator shall obtain and maintain all necessary permits and licenses that are required in
connection with the operation and use of the Stadium Premises.
(h) 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.
(i) In exercising its rights and fulfilling its obligations under this Agreement
and each of the other Stadium Agreements, each Party 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, to use good faith efforts
or to use diligent reasonable efforts or other similar efforts, such Party shall not be required to
expend any funds, or grant any other consideration of any kind, in the performance of such
undertaking, and each Party further acknowledges that the obligation of any Party to act in good
faith, undertake good faith efforts, or to use diligent reasonable efforts or other similar efforts
does not constitute a warranty, representation or other guaranty that the result which the Parties
are attempting to achieve will be successfully achieved and no Party shall be liable for any
failure to achieve the result or results intended so long as the Party has complied with its
obligation to act in accordance with the applicable standard.
ARTICLE XVI
TAXES
Section 16.1 Intangible and Ad Valorem Taxes. The Team's use of the Stadium
Premises is subject, under existing law, to the annual intangible tax imposed by Chapter 199 of
the Florida Statutes. If any ad valorem real property taxes shall be levied in respect of the
interest of the Operator or any Team Affiliate in the Stadium Premises during the Term of this
Agreement, the Team Affiliates shall, to the extent permitted by then Applicable Law, (a) be
permitted to reduce the amount of their payment obligations otherwise due to the County under
the Stadium Agreements up to the amount of the ad valorem tax due to the County and (b) be
permitted to reduce the amount of their payment obligations otherwise due to the City under the
Stadium Agreements up to the amount of the ad valorem tax due to the City.
Section 16.2 Targeted Taxes. Neither the County nor the City shall impose any
Targeted Taxes during the Term of this Agreement. If at any time during the Term of this
Agreement, any Team Affiliate believes that a tax imposed or enabled by the County or the City
constitutes a Targeted Tax, then the Team Affiliate shall have the right to institute court
proceedings to challenge the permissibility of the tax under this Agreement. Each party shall be
responsible for its own legal and court -related expenses incurred in connection with the court
proceedings. The County and City further covenant not to support any State legislation or other
efforts that would reasonably lead to or result in a Targeted Tax from which the County or the
City (including any County or City agency) shall derive revenues. Without limiting the
foregoing obligations, if a Targeted Tax is imposed by the County or the City, or by the State
from which the County or the City (including any County or City agency) would derive
revenues, the Team Affiliates, to the extent permitted under then Applicable Law, shall have the
right to reduce amounts due to the County and the City, respectively, under this Agreement and
the other Stadium Agreements (including any amounts payable with respect to Capital
Improvements).
ARTICLE XVII
DEFAULTS AND REMEDIES, TERMINATION
Section 17.1 Operator Default. Each of the following shall constitute a default by the
Operator hereunder (an "Operator Default"):
(a) If any representation or warranty made by the Operator in this Agreement
shall at any time prove to have been incorrect in any material respect as of the time made, and
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the Operator fails to cause such representation or warranty to become correct within 40 days
after written notice thereof is given to the Operator by a Government Party that such
representation or warranty is incorrect; provided, however, that if it is not reasonably possible to
cause such representation or warranty to become correct within such 40 -day period, such cure
period shall be extended for up to 180 days following the date of the original notice if within 40
days after such written notice the Operator commences diligently and thereafter continues to
cause such representation or warranty to become correct.
(b) If the Operator shall fail to pay any amount due to a Government Party
when due and payable under this Agreement, and such failure is not cured within 20 days after
written notice thereof is given to the Operator by the applicable Government Representative.
(c) If the Operator shall materially breach any of the other covenants or
provisions in this Agreement and such failure is not cured within 40 days after written notice
thereof is given to the Operator by the applicable Government Representative; provided,
however, that if it is not reasonably possible to cure such breach within such 40 -day period, such
cure period shall be extended for up to 180 days following the giving of the original notice if
within 40 days after such written notice the Operator commences and thereafter diligently
pursues the cure.
Section 17.2 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 40 days after written notice thereof is given to the Government Party by the Operator that
such representation or warranty is incorrect; provided, however, that if it is not reasonably
possible to cause such representation or warranty to become correct within such 40 -day period,
such cure period shall be extended for up to 180 days following the date of the original notice if
within 40 days after such written notice the Government Party commences diligently and
thereafter continues to cause such representation or warranty to become correct.
(b) If a Government Party shall fail to pay any amount due to the Operator
when due and payable under this Agreement, and such failure is not cured within 20 days after
written notice thereof is given to the Government Party by the Operator.
(c) If a Government Party shall materially breach any of the other covenants
or provisions in this Agreement and such failure is not cured within 40 days after written notice
thereof is given to the Government Party by the Operator; provided, however, that if it is not
reasonably possible to cure such breach within such 40 -day period, such cure period shall be
extended for up to 180 days following the giving of the original notice if within 40 days after
such written notice the Government Party commences and thereafter diligently pursues the cure.
Section 17.3 Remedies.
(a) Subject to complying with Article XVIII with respect to matters that must
be resolved by arbitration, the Government Parties may institute litigation to recover damages or
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to obtain any other remedy at law or in equity (including specific performance, permanent,
preliminary or temporary injunctive relief, and any other kind of equitable remedy) for any
Operator Default.
(b) Subject to complying with Article XVIII with respect to matters that must
be resolved by arbitration, the Operator may institute litigation to recover damages or to obtain
any other remedy at law or in equity (including specific performance, permanent, preliminary or
temporary injunctive relief, and any other kind of equitable remedy) for any Government Party
Default.
(c) Except with respect to rights and remedies expressly declared to be
exclusive in this Agreement or the other Stadium Agreements, the rights and remedies of the
Parties provided for in this Agreement 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 such 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) Notwithstanding anything to the contrary in this Agreement, the City may
only provide a notice of default and exercise remedies with respect to a breach of a City
Provision.
(f) In the event of any litigation, arbitration or other dispute resolution
proceeding between the Operator and a Government Party in connection with this Agreement
("Proceeding"), the prevailing party in such Proceeding shall be entitled to be reimbursed by the
other party for all costs and expenses incurred in such Proceedings, including reasonable
attorneys' fees and costs as may be fixed by the Eleventh Judicial Circuit Court of Florida for
Dade County, the Federal District Court or the arbitrator, as applicable, and any award granted to
a party in such a proceeding shall be treated as the sole property of such party.
Section 17.4 [INTENTIONALLY OMITTED]
Section 17.5 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 as
specifically provided in Sections 17.5.1, 17.5.2, 17.5.3, 11.2, 11.4 and Article XII of this
Agreement.
Section 17.5.1 Termination of Construction Administration Agreement. This
Agreement shall automatically terminate upon any termination of the Construction
Administration Agreement in accordance with its terms by the Government Parties or the
Stadium Developer prior to the Substantial Completion Date.
Section 17.5.2 Termination by Government Parties. In addition to any other
remedies the Government Parties may have under this Agreement or at law or in equity, the
Government Parties collectively (but not independently) shall have the right to terminate this
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Agreement, by giving written notice (which must be joint written notice) of termination to the
Operator, upon the occurrence of any of the following:
(a) The MLB franchise held by the Team is terminated.
(b) A court of competent jurisdiction has issued a final and
unappealable order holding that the Team has breached Section 2(c) of the Non -Relocation
Agreement (after giving effect to the notice and cure period thereunder) but has refused to issue
an injunction or specific performance with respect to such breach (other than as a result of a cure
of such breach).
(c) If the Operator shall file a voluntary petition in bankruptcy under
the United States Bankruptcy Code or an involuntary petition shall be filed with respect to the
Operator under the United States Bankruptcy Code and such petition remains undismissed and
unstayed for a period of 90 days following the filing (each a "Bankruptcy Event") unless within
45 days following the occurrence of such Bankruptcy Event, at the request of a Government
Party, either (a) the Team, (b) a Team Affiliate, or (c) other Person jointly acceptable to the
Government Parties assumes all of the Operator's obligations and liabilities under this
Agreement and the City Parking Agreement from and after the date of the assumption and cures
all pre-existing Operator Defaults under this Agreement.
Section 17.5.3 Termination by O ep rator. In addition to any other remedies the
Operator may have under this Agreement or at law or in equity, the Operator shall have the right
to terminate this Agreement, by giving written notice of termination to the Government Parties,
upon the entry by any court or arbitrator of competent jurisdiction of a determination that is not
stayed or vacated within thirty (30) days and has become final and non -appealable that prohibits
or materially impairs or restricts the right of the Team to use the Baseball Stadium for MLB
Home Games throughout the scheduled Term; provided that the Operator shall not have such
termination right if the Team's right to use the Baseball Stadium is materially impaired or
restricted due to a breach by the Operator of this Agreement or the negligence of the Operator or
the Team; provided, further, that each Party shall use 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 at least one hundred eighty (180) days before the
Operator may exercise its termination right. In the event that the Operator terminates this
Agreement under this Section 17.5.3, the Team's annual payment obligation under Section 7 of
the Non -Relocation Agreement shall remain in full force and effect.
Section 17.5.4 Effect of Termination. If a Party elects to terminate this
Agreement in accordance with its terms (or this Agreement terminates pursuant to Section
17.5.1), this Agreement and 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 and each
of the other Stadium Agreements 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).
Section 17.5.5 Post -Termination Agreements. In the event of an early termination
of this Agreement, all Use Agreements and Service Agreements shall terminate upon such
termination.
Section 17.6 Exclusive Remedies. The rights and remedies conferred upon or reserved
to the Parties in this Article XVII 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 XVIII
ARBITRATION
Section 18.1 Arbitration. Any dispute, controversy or claim between the Operator (or
one of its officers, directors, managers, owners or other Affiliates) and one more or more
Government Parties that arises under or in connection with or is related in any way to Articles IV
(with the exception of Section 4.8 and 4.9), Article V, Article VI, Article VII, Article IX (with
the exception of Section 9.3), Article X or Article XI of this Agreement (a "Dispute"), including
a Dispute relating to the effectiveness, validity, interpretation or implementation of any of those
provisions, shall be submitted to, and resolved exclusively and finally through, the following
arbitration process ("Arbitration"):
(a) Within two (2) Business Days after a request for Arbitration by a
Government Party or the Operator, the parties shall hold an initial meeting to attempt in good
faith to negotiate a settlement of the Dispute. No request concerning a Dispute may be made
after the time allowed by any statute of limitations applicable to such Dispute. If within four (4)
Business Days after the request for Arbitration the parties have not negotiated a settlement of the
Dispute (as evidenced by a written, executed settlement agreement), a party may request
Arbitration.
(b) Except as set forth below, the Arbitration shall be administered by the
American Arbitration Association ("AAA") under its Commercial Arbitration Rules and
conducted pursuant to such rules, as such rules are in effect as of the time the Dispute is
submitted to the AAA for Arbitration.
(c) The Arbitration shall be conducted before and determined by a panel (the
"Arbitration Panel") consisting of three persons (each an "Arbitrator"), who shall be selected in
accordance with the AAA's Commercial Arbitration Rules. None of the Arbitrators shall be a
current or former employee, officer, director, trustee, owner, Affiliate, attorney or agent of any
Party or any Government Party, and none of the Arbitrators shall have performed, directly or
indirectly, a material amount of work for a Government Party, the Operator, the Team, or any
Team Affiliates within the five-year period immediately preceding the date of their selection or
intend or desire to perform work for a Government Party, the Operator, the Team, or any Team
Affiliates within one year following the date of their selection.
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(d) Barring extraordinary circumstances, an initial conference with the
Arbitration Panel shall be scheduled to take place in Miami, Florida within thirty (30) days after
the appointment of the Arbitration Panel. In setting a schedule and conducting the Arbitration,
the Arbitration Panel shall take into account the Parties' desire to resolve Disputes in a prompt
and cost effective manner.
(e) Barring extraordinary circumstances, the award will be rendered not later
than thirty (30) days from the date of the conclusion of the hearing.
(f) The Arbitration shall take place in Miami, Florida. Each Party irrevocably
consents to the delivery of service of process with respect to any Arbitration in any manner
permitted for the giving of notices under Section 19.1, for itself and each of its Affiliates.
(g) Notwithstanding anything contained in the AAA rules to the contrary,
unless the Arbitration Panel finds that one or more claims or defenses were frivolous or
knowingly false when made, except as expressly provided elsewhere in this Agreement, each
Party shall bear the cost of its own legal representation and expert witness fees in any Arbitration
under this Agreement. If the Arbitration Panel finds that one or more claims or defenses were
frivolous or knowingly false when made, the Arbitration Panel shall be entitled to require the
Party that made such frivolous or knowingly false claims or defenses to bear all or a portion of
the other Parties' respective legal fees and expert witness fees. Except as expressly provided in
the foregoing sentence or elsewhere in this Agreement, all other costs and expenses of the
Arbitration shall be shared equally by the Parties.
(h) All provisions of this Agreement applicable to Disputes generally,
including the limitations on damages in Section 18.3, shall apply to the Arbitration.
(i) The Arbitration Panel shall render a written, reasoned award. Any award
rendered in any Arbitration pursuant to this Section 18.1 shall be final and binding upon the
Parties and non -appealable, and a judgment of any court having jurisdiction may be entered on
any such award.
(j) In no event shall the Arbitrators have the authority to amend or insert any
provisions into this Agreement.
Section 18.2 Emergency Relief. Notwithstanding any provision of this Agreement to
the contrary, each Party may seek interim relief, whether affirmative or prohibitive, in the form
of a temporary restraining order or preliminary injunctive relief or other interim equitable relief
concerning a Dispute, including, without limitation, declaratory relief, provisional remedies,
special action relief, stay proceedings in connection with special action relief, and any similar
relief of an interim nature at any time from any court of competent jurisdiction, including with
respect to any Dispute. If a Dispute requires temporary or preliminary injunctive relief before
the matter may be resolved by Arbitration, the procedures set forth in Section 18.1 will still
govern the ultimate resolution of the Dispute notwithstanding the fact that a court of competent
jurisdiction may have entered an order providing for interim relief, injunctive or another form of
temporary or preliminary relief.
Section 18.3 No Indirect Damages. In no event shall any party be liable under any
provision of this agreement for any special, indirect, incidental, consequential, exemplary, treble
or punitive damages, in contract, tort or otherwise, whether or not provided by 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, and subject to the limitations in, Article XIII. The preceding limitation shall
not be a basis for any claim or argument that a dispute should not be arbitrated.
ARTICLE XIX
MISCELLANEOUS
Section 19.1 Notices. Any notice, demand, request, consent or other communication
under this Agreement shall be in writing and shall be considered given when delivered in person,
one Business Day after being sent by reputable overnight carrier, or three Business Days after
being mailed by certified mail, return receipt requested, to the Parties at the addresses set forth
below (or at such other address as a Party may specify by notice given pursuant to this Section to
the other Parties):
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 1St Street, Suite 2810
Miami, Florida 33128
Attn: Robert A. Cuevas, Jr.
and Geri Keenan
If to the City:
To the attention of. City Manager
444 SW 2nd Avenue, 10th Floor
Miami, Florida 33130
Attn: Pedro G. Hernandez
With a copy to: City Attorney
444 SW 2nd Avenue, 9th Floor
Miami, Florida 33130
Attn: Julie O. Bru
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and Olga Ramirez-Seijas
If to the O ep rator:
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 Operator and the County Representative or City Representative, as
applicable, may be given (and shall be considered given when provided) by any of the means set
forth above, and to the address provided by the Government Representatives to the Operator
from time to time.
Section 19.2 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. 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.
Section 19.3 Amendment. This Agreement may not be amended or modified except in
a writing signed by the Parties affected by the amendment or modification, and approved by the
Board and the Commission, if applicable.
Section 19.4 Binding Effect. This Agreement shall be binding upon the Parties and
their respective successors and assigns, subject to the limitations on Transfer in Article XIV.
Section 19.5 Waiver. No waiver of any terms of this Agreement shall be binding on the
Party granting the waiver until the waiver is reduced to writing, and executed by the Party
granting the waiver. Waiver by any Party of any breach of any provision of this Agreement shall
riot 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.
Section 19.6 Non -Recourse Liability of County Personnel. Notwithstanding and
prevailing over any contrary provision or implication in this Agreement, no member, elected or
appointed official, officer, employee or agent of the County shall be liable to the Operator, or
any successor in interest to the Operator, in the event of any default or breach by the County for
any amount which may become due to the Operator or any successor in interest to the Operator,
or on any other obligation under the terms of 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).
Section 19.7 Non -Recourse Liability of City Personnel. Notwithstanding and
prevailing over any contrary provision or implication in this Agreement, no member, elected or
appointed official, officer, employee or agent of the City shall be liable to the Operator, or any
successor in interest to the Operator, in the event of any default or breach by the City for any
amount which may become due to the Operator or any successor in interest to the Operator, or on
any other obligation under the terms of 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).
Section 19.8 Non -Recourse Liability of Operator Personnel. Notwithstanding and
prevailing over any contrary provision or implication in this Agreement and except for their
criminal acts with respect to this Agreement (i.e., acts which would constitute crimes were they
prosecuted for and convicted of such acts), the officers, directors, partners, shareholders,
members, employees and agents of the Operator, the Team and their Affiliates (the "Operator
Personnel") shall not in any way be liable under or with respect to this Agreement; no deficiency
or other monetary or personal judgment of any kind shall be sought or entered against any of the
Operator Personnel with respect to liability under or with respect to this Agreement; no judgment
with respect to liability under or with respect to this Agreement shall give rise to any right of
execution or levy against the assets of any of the Operator Personnel; and the liability of the
Operator under this Agreement shall be limited to the assets of the Operator (although nothing
contained in this Section shall be deemed to limit the rights of the Government Parties against
the Team or the liability of the Team under the Non -Relocation Agreement and the Assurance
Agreement).
Section 19.9 Government Cooperation. Within five Business Days after receipt of
written notice from the Operator and, subject to any limitations of its authority under Applicable
Law and subject to the provisions of this Agreement, each Government Party shall consent to,
execute and deliver to the Operator any suitable applications or evidence of the Operator's
authority required by any governmental or other body claiming jurisdiction in connection with
any activities the Operator may conduct in accordance with this Agreement.
Section 19.10 Government Representatives. The County Mayor or his designee (the
"County Representative") shall act as liaison and contact person between the Operator 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 Operator and
the City in administering and implementing the terms of this Agreement. The County Mayor and
City Manager shall notify the other Parties in writing if they designate (or re -designate) another
individual to serve as County Representative or City Representative, respectively. Each of the
County Representative and the City Representative shall have the power, authority and right, on
behalf of the County and City, respectively, and without any further resolution or action of the
Board or Commission to:
(a) review, approve and consent, in writing, to documents and requests
required or allowed by the Operator to be submitted to the County Representative and the City
Representative, as the case may be, pursuant to this Agreement;
(b) consent to and approve, in writing, actions, events and undertakings by the
Operator or other Persons for which consent and/or approval is required from the County
Representative and/or the City Representative, as the case may be;
(c) make appointments, in writing, of individuals or entities required to be
appointed or designated by the County Representative and/or the City Representative, 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;
and
(e) grant written time extensions that extend deadlines or time periods by 180
days and do not otherwise materially affect the rights or obligations of the Stadium Operator, the
County or the City, as the case may be, under this Agreement.
However, nothing contained herein shall preclude the County Representative and the City
Representative from seeking Board and/or Commission approval for the delegated authority'
contained in 19.10(a) -(e). In addition, and notwithstanding any of the foregoing, the
Government Representatives shall be required to seek Board and/or Commission approval, as
applicable, for any approvals, consents, actions, events or undertakings by any Party or any other
third parties that would violate, alter, or ignore the substantive provisions of this Agreement, or
that would create a financial obligation, cost, or expense to the County and/or the City that is
greater than the delegated procurement authority of the County Mayor or City Manager, as set
forth in the applicable County and City Charters, County and City Codes, and any related
administrative or implementing orders. Any consent, approval, decision, determination or
extension under this Agreement by the County Representative or the City Representative shall be
binding on the County and the City, respectively. Notwithstanding and prevailing over anything
to the contrary in this Section and this Agreement, the parties agree that the Board may at any
time rescind any or all delegations of authority to the County Representative. In such instances,
the approval, consent or action sought shall be subject to approval by the Board and, if a time
frame for the County Representative's approval, consent or action is set forth in this Agreement,
the Board shall consider the matter no later than the 2nd regularly scheduled meeting of the Board
after committee consideration. All such time frames for County Representative approvals set
forth in this Agreement shall be deemed amended accordingly. The Operator may rely upon the
authority of the Government Representative to act for and bind the County and City, as the case
may be, solely for the matters specifically detailed above. The County and City shall cause its
Government Representative to comply with all of the provisions of this Agreement.
Section 19.11 Consent of Parties. Whenever in this Agreement the consent or approval
of a Party is required, such consent or approval:
70
(a) shall be granted or denied 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 granted or denied 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) 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;
(e) shall apply only to the specific act or transaction so approved or consented
to and shall not relive the other Parties of the obligation of obtaining the consenting Party's prior
written consent or approval to any future similar act or transaction; and
(f) if withheld, the withholding Party shall notify the other relevant Parties in
writing of the reasons for withholding its consent or approval.
Section 19.12 Headings. The headings in this Agreement are included for convenience
and identification only and are in no way intended to describe, interpret, define or limit the
scope, extent or intent of this Agreement or of its provisions.
Section 19.13 General Interpretive Provisions. Whenever the context may require, terms
used in this Agreement shall include the singular and plural forms, and any pronoun shall include
the corresponding masculine and feminine forms. The term "including", whenever used in any
provision of this Agreement, means including but without limiting the generality of any
description preceding or succeeding such term. Each reference to a Person shall include a
reference to such Person's successors and assigns. All references to "Articles", "Sections",
"Schedules" or "Exhibits" shall be references to the Articles, Sections, Schedules and Exhibits to
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.
Section 19.14 Severability. Whenever possible, each provision of this Agreement shall
be interpreted in such a manner as to be effective and valid under Applicable Law, but if any
provision of this Agreement is held to be prohibited by or invalid under Applicable Law, the
Parties shall, to the extent possible, negotiate a revised provision which (a) complies with
Applicable Law, (b) does not alter any of the substantive rights, obligations or liabilities of any
party under this Agreement or any other Stadium Agreement, and (c) confers upon the Parties the
benefits intended to be conferred by the invalid provision; and the remaining provisions of this
Agreement, if capable of substantial performance, shall be enforced as if this Agreement was
entered into without the invalid provision.
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Section 19.15 Absence of Third -Party Beneficiaries. Except with respect to the Team
and the express covenants of the Government Parties given for the benefit of Secured Parties as
set forth in Section 14.8, 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.
Section 19.16 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.
Section 19.17 Time of Essence. Time is of the essence with respect to the performance
of each of the covenants and obligations contained in this Agreement.
Section 19.18 Relationship of Parties. No partnership or joint venture is established
among the Parties under this Agreement. Except as expressly provided in this Agreement or the
other Stadium Agreements, 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.
Section 19.19 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 laws
and shall in no way be estopped from withholding or refusing to issue any approvals of
applications for building, zoning, planning or development under present or future laws and
regulations whatever nature applicable to the planning, design, construction and development of
the Baseball Stadium, the Baseball Stadium Site, the Public Infrastructure, the Other
Development or the Parking Facilities, or the operation thereof, or be liable for the same; and
(b) The County and the City shall not by virtue of this Agreement or the other
Stadium Agreements be obligated to grant the other, or the Team, any Team Affiliate, or the
72
Operator 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 contained in this Agreement shall not bind the Board,
the County's Planning and Zoning Department, DERM, the Commission or any other County,
City, federal or state department or authority, committee or agency to grant or leave in effect any
zoning changes, variances, permits, waivers, contract amendments, or any other approvals that
may be granted, withheld or revoked in the discretion of the County or City or other applicable
governmental agencies in the exercise of its police power.
Section 19.20 Antidiscrimination Clause. In accordance with Applicable Law, the
Parties shall not discriminate against any person or group of persons on the basis of race, sex,
religion, national or ethnic origin, age or disability.
Section 19.21 Permitted Development Uses and Downzoning.
(a) The City has designated the Baseball Stadium Site as GI ("Government
Institutional") on the official zoning Atlas of the City, pursuant to the City's Land Development
Regulations. The City has determined that the Baseball Stadium development is consistent with
the City's Comprehensive Plan and that it is in accordance with the City's land development
regulations in effect as of the effective date of this Agreement.
(b) For the duration of this Agreement, the City shall not Downzone the
Baseball Stadium Site or otherwise limit the ability to develop, reconstruct or operate the
Baseball Stadium in accordance with the Development Requirements and nothing shall prohibit
the issuance of further development orders and approvals in conformity with same for the
Baseball Stadium Site. As used herein, "Downzone" shall refer to any change in regulations that
govern the use or development of land (including but not limited to comprehensive plans, land
development regulations, subdivision regulations, Existing Zoning and any other such
regulations), which change would have the effect of imposing more restrictive limitations on the
use of the Baseball Stadium Site than those which exist on the effective date of this Agreement.
Section 19.22 Force Majeure. If any Party shall be delayed in the performance of any
obligation hereunder as a result of a Force Majeure, then the performance of such obligation
shall be excused for the period of such delay and the period for 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.
Section 19.23 MLB Requirements. Notwithstanding any other provision of this
Agreement, except for the last sentence in this Section, the obligations of the Operator under this
Agreement shall in all respects be subordinate to the approval requirements and other MLB
73
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 MLB Rules and Regulations. In the event that any
act or omission taken by the Operator to comply with MLB 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, with the assistance,
if necessary, of non-binding mediation, to amend the terms of this Agreement to neutralize the
effect. The Operator agrees in any event that if compliance by it with MLB Rules and
Regulations results in a failure of the Operator to fulfill its obligations under this Agreement or
the other Stadium Agreements, the County and the City may enforce remedies for the Operator'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.
Section 19.24 Valid Agreement. Each Government Party agrees for the benefit of the
Operator that the Operator shall have the right to collect damages and otherwise enforce this
Agreement against such Government Party with respect to any breach of this Agreement by such
Government Party, including damages from any third party claims arising from a breach of this
Agreement by a Government Party.
Section 19.25 County Inspector General. The attention of the Operator is hereby
directed to Section 2-1076 of the County Code establishing the Miami -Dade County Office of
the Inspector General (the "OIG"), which has the authority and power to investigate County
affairs and review past, present and proposed County programs, accounts, records, contracts and
transactions. The OIG contract fee shall not apply to this Agreement or any other Stadium
Agreement, and the Team Affiliates shall not be responsible for any expense reimbursements or
other amounts payable to the OIG or its contractors.
Section 19.26 Books and Records; Audit. The Operator shall keep and maintain all
books, records and documents of all kinds in any way related to the Operator's rights and
obligations under this Agreement for a period of three years following the Operator's fiscal year,
separate and identifiable from its other books, records, and documents. The County, including
the Commission Auditor (as provided in Section 2-481 of the County Code) shall have the right
to audit the books and records of the Stadium Operator reasonably necessary to determine
compliance with the provisions of this Agreement.
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Section 19.27 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.
CITY OF MIAMI, FLORIDA
By:
Pedro G. Hernandez
City Manager
City of Miami
ATTEST:
By:
City Clerk
APPROVED AS TO FORM
AND CORRECTNESS:
City Attorney
APPROVED AS TO INSURANCE
REQUIREMENTS
Risk Management Director
MIAMI-DADE COUNTY, FLORIDA
OCR
George M. Burgess
County Manager
Miami -Dade County
ATTEST:
Clerk of the Board
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY:
MARLINS STADIUM OPERATOR, LLC
By:_
Name:
Title:
75
County Attorney
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EXHIBIT A
Major Necessary Improvements
Capital Repairs and Replacement Schedule
Schedule of Maintenance
Component
Schedule
Roofing Membrane k,3placement
every 20 years
Exterior Caulking / Coatings
every 5 years
Exterior Painting / Other Coating
every 10 years
Interior Finishes
every 7 years
Scoreboards / Videoboards
every 5 years
Replace FF&E
eve 7 years
Concession Equipment
every 7 to 15 years
Field Lighting
every 8 to 15 years
Seat Replacement
eve 20 ears
Mechanical, Ventilation, & HVAC
every 8 to 12 years
Electrical, Power Supply, & Lighting
every 8 to 12 years
Plumbing & Sprinklers
every 7 to 15 years
Playing Field & Sub Fystems
every 5 years
Phone System
every 15 years
Wa findin , Graphics, & Signage
every 20 years
Sound System
every 10 years
Vertical Transportation
every 8 to 12 years
Renovate Ticket Areas / FF&E
every 10 years
Plaza Landscape / Hardsca a
every 10 years
Retractable Roof Moving Parts
12 to 20 years
-every
Operable Wall Moving Parts
every 12 to 20 years
Note: Costs may not be evenly distributed among the years shown above.
Exhibit A
Provisions arising under Section 3(e)
With respect to the exercise of the Government Parties' rights under the Subordinate Lien and
for the benefit of MLB, (and, for the avoidance of doubt, not for the benefit of any third party),
the Government Parties acknowledge and agree that: (A) the Government Parties are aware of
the provisions contained in Article V, Section 2(b)(2) of the Major League Constitution among
the Major League Clubs (such document, as may be amended from time to time, the "MLB
Constitution"), and recognize that the Commissioner of MLB has issued "Control Interest
Transfers — Guidelines & Procedures", dated November 9, 2005 (such document and any
successor guidelines, as may be amended from time to time, the "Guidelines"); (B) Article V,
Section 2(b)(2) of the MLB, Constitution and the Guidelines require that the transfer of a Control
Interest in either the Franchise or the Team be subject to the approving vote of the Major League
Clubs in their absolute discretion; (C) the Commissioner of MLB holds the "best interests of
Baseball" powers under the MLB Constitution; (D) such approvals of the Major League Clubs
would be required for any sale or transfer of the Franchise, the Team, or a Control Interest in
either the Franchise or the Team, or any sale, transfer, assignment, license, sublease, or any other
conveyance of other elem:.nts of collateral covered by the Subordinate Lien arising directly from
the Team's interest in the Franchise, any MLB Entity or the MLB Rules and Regulations, to a
third party as well as to either Government Party , and that each such transaction shall be subject
to and made in accordance with the MLB Constitution and the Guidelines; (E) any temporary or
permanent management of the Franchise or the Team pursuant to the exercise of foreclosure
rights under the Subordinate Lien shall be subject to the prior approval of the Commissioner and
the Major League Clubs; (F) in the event that, pursuant to a foreclosure under the Subordinate
Lien, a Government Party desires to operate the Franchise or the Team for its own account on a
temporary or permanent basis, such Government Party shall seek the prior approval of the
Commissioner and the Major League Clubs, in accordance with the MLB Constitution and the
Guidelines. Solely as between the Government Parties and Major League Baseball (and, for the
avoidance of doubt, not for the benefit of the Team or any other third party), the Government
Parties acknowledge that the rights and powers granted to the Government Parties under the
Subordinate Lien shall in all respects be subordinate to MLB Rules and Regulations.
CAA - Baseball Stadium Site
M
I A M I B A L L P A R
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11IN
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NORTH
21 JANUARY 2009
BASEBALL STADIUM SITE, PARKING FACILITIES
V1.0AIDAMARUMCIIYO
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MIAMI COUNTV
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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 finishes. 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/chefs table, serving stations,
room for snack items, a smal' 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 open 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 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 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 cir:led 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 -tasking 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 U rd 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 - 23ma Display
• Outfield Board - 23mm Display
Open Caption - 23mm Display
• Control System: Venus, Vink & Rack System
• HD Video Replay System
4 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 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 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 load 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 path. An exit sign shall be provided at every egress door and stairway. 50% of
all metal halide fixtures shall have 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 infrastructure 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.
A-cessible from service level.
1 st and 3rd Dugout Club Seats
Premium seating at Field Lee , 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).
c.
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.
c;. Outfield Reserved
Located in outfield of lower bowl,
!'lastic seat and back, operable 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, operabib 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 A 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 men's 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 Rowis 2 420SF
Provide men's and women's toilet rooms @ the Dugout Club lounges at both 1st 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 public 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 inclw;,-. 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 barstools 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, full-size refrigerator, large concealed trash
container.
Provide coat closet In each suite.
Provide TV monitors at outside 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, Meats, 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 includ � hack 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.
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.
9.00 Club Lounges 39,635SF
a. 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 Box seating area and separate from dining area.
Kitchen, to service the dining/buffet service and the in -seat service (see 63, below),
Wait station, in proximity to the Batter's Box seats.
Women's toilet room (see 4.00 above).
Men's toilet room (see 4,00 above).
Janitor's closet.
b. 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 se -+holders 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).
C. 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).
d. 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.
10.00 Guest Relations 660SF
a. Guest Relations Room @ Main 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.
b. Guest Relations Room @ Upper Concourse
Centrally located in the concourse, in proximity to first aid room.
Includes office/reception area for staff, w/transaction counter and coiling shutter.
Provide one advance ticket win,ow off the concourse, with ticket seller's access from within the guest relations room.
- Include storage closet within the room.
11.00 First Aid 1 200SF
a. 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 wl2 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 6100SF
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 sales area, in association with the outfield party room.
B. Food Service & Retail
1.00 Concession Stands 29 480SF
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 stand; t^ill include grease exhaust equipment.
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 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: 1 @ 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 Fadi_;`"ies 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, sewing/embroidery 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 3lavatories
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 within 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 maxin ;zed 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 Sox Facilities (A Press Level) 7,800SF
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/cubby 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, as 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 cubby 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
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 (ft 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. Scoreboard/ 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 corridor 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) 1,920SF
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 c.;.) Jerence 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 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 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. ENG/ Satellite Trucks Parkin, (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 Camera/ 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 mounted 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 payer 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 and 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 R;^m, 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.
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Includes a treatment table, chi,bpractic exam table, equipment cabinet and work counter w/ 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 loading/unloading of equipment.
High ceiling clearance.
Includes long rows of shelves down 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 slao, 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 tubby 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.
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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 wloutlets.
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 wloutlets.
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 cluul ruse 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.
L 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 loadinglunloading of equipment (as much
as possible).
k. Luggage Room
Located off equipment room and adjacent to loading/ unloading area.
1. Laundry Room
Includes washers and dryers, a reside ntlal-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.
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Includes a field toilet with water closet and lavatory.
C. Batting Tunnels
Includes 1 cage @ 18'x 85'.
7.00 Auxiliary Locker Rooms 1,600SF
a. Auxiliary Clubhouse
Locate near Visiting Clubhouse.
Will be used by In Game Entertainment during events (i,e, 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 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, sho,v r, 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. Umpires' 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
Sack 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 Distribut;. i
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.
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Toilet room should be conne *1d 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 Director 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 Shot
This will be a common shop a ea 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/ 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, which should be located near the loading
dock.
Include shelving units.
C. Stadium Maintenance Rooms
Storage space for cleaning e, ipment (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,
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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 ter 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 810SF
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 dumpsterlcompactor.
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d. 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.
e. Toilet Room
- Provide unisex toilet room near the dock office.
7.00 Storage Areas 13,5005F
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 sty* 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 conditioning 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 tubby -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.
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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,
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).
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 Concouuses 25 750SF
This is the corridor connecting all the suites.
4.00 Upper Concourse 45,000SF
- 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 Circulation 63.000SF
a. Stairs
- Exit stairs through the building.
b. 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 Facilities
1.00 Team Administrative Offices 32.000SF
-
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.
C.
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.
I.
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 Inading 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. _
3.0008F
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 Parkinq 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 703SF
19
EXHIBIT J
COUNTY PURCHASES
PART 1GENERAL
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 materials 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! .)e "DV/CM".
B. Miami -Dade County will execute a Purchase Order to the vendor(s) designated by
the DV/CM 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. Miami -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 i'xhibit 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 Miaml-Dade County will purchase directly under this process. All material
terms negotiated by the DV/CM with the vendor (I.e., pricing, delivery date, payment
terms, warranties, 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 tl i 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. Miaml-Dade County
shall have no responsibility or obligation to obtain any additional confirmation on terms,
specifications or pricing with the vendor(s) 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 the transfer of Owner Purchased Materials by Miami -Dade County to
DV/CM'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 +c: ss 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 Manager, 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 act or
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. DV/CM 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 non -conforming Owner Purchased Materials, then
DV/CM 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.
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 to perform 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
compiled 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 for 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 DV/CM 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 manufacturer(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 ", 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 (1%).
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 arrange 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 acts ,al 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.
P. 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 Mfamf-Dade County,
Q. Miami -Dade County is responsible to make payments to vendors for the Owner
Purchased Materials. If Miami -Dade County fails to make payments In accordance with
this Exhibit J for any 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 whet, 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 accounts 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 Manager 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 rer�er the invoices not payable and shall be considered the fault of others
and not the fault or Miami -Dade County,
T. The provisions of the Community Small Business Enterprise ("CSBE") Program Goals
(as included in the Construction Documents) shall be applicable to all of the Owner
Purchased Materials. The CSBE participation measures apply to the complete contract
award amount, which includes the purchases by Miami -Dade 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 thc.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 Miami -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
REQUISITION FOR
PURCHASE ORDER
Page 1
DV/CM
Name
Address
The DV/CM have reviewed the Contract specifications and the requested materials/product description within this
proposed direct materials purchase, ; p 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: Date:
Name/Title:
Company Name:
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:
FEIN:
Name:
Name:
Address:
Address:
Ph No.:
Ph No.:
Contact:
Contact:
Fax No.:
Fax No.:
P.O. Release No.:
Authorized by:
Date:
Item
Line No. e Description/Specification
-P
Delivery
Date Total
" The above referenced submittal No.(s) does not relieve the Construction Manager,
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
goods/materials 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/Ch1.
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
;t i
State Sales Tax Amount @
6%
County Sur -tax @ 10/6 up to
$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 them jy.
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 119, all records, transactions, related documentation 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.
Senior Procurement Agent Date
DO NOT WRITE BELOW THISLINE, DWCM OFFICE USE ONLY
Senior Project Manager Date
Director of Administration Date Director Date
Senior Project Manager Date
1.
2,
3,
4.
5,
6.
7.
8.
9.
10.
11.
12,
13,
14,
15.
16.
17.
18.
19,
20,
21.
22,
23,
24,
25,
26,
27,
28,
29.
30,
31.
32.
33.
34.
35,
36.
37.
38,
39.
40,
41.
42,
43.
44.
45,
46.
47.
48,
49.
50,
51.
52,
53.
ATTACHMENT 2
%" Gravel Sub Base Material
Access Doors
Access Flooring
Acoustical Ceilings
Acoustical Wall Panels
Air Handling Equipment
Air Handling Units
Appliances
Asphalt/Concrete Paving
Audio Equipment
Pile Grout
Pile Reinforcing Steel
Boilers
Building Controls System Equipment
Carpet
Cast -In -Place Concrete
Caulking & Sealants
Cold Formed Metal Framing
Concrete Material
Concrete Pavers
Concrete Reinforcing Steel
Concrete Unit Masonry
Cooling Towers
Curtainwall Aluminum Extrusions
Curtainwall GI, : ss
Domestic Water Piping
Domestic Water Pumps
Door Hardware
Electrical Conduit
Electrical Disconnects
Electrical Switchgear & Transformers
Electrical Wiring
Elevators (As applicable to State Tax Laws)
Emergency Generators
Epoxy
Escalators (As applicable to State Tax Laws)
Exhaust Fans
Exhaust Hoods
Expansion Joint Cover Assemblies
Expansion Joint Covers
FFE Equipment
Field Wall Pads
Finish Hardware
Fire Alarm Equipment & Wiring
Fire Extinguisher Cabinets/Extinguishers
Fire Protection Sprinkler Heads
Fire Protection Sprinkler Pipe
Fire Protection Valves and Tamper Switches
Fire Pumps & Controllers
Fire Stopping Material
fireproofing'M aerial
Flag Poles
Flush Wood Doors
54. Food Service Equipment (Concessions Kiosks)
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 Seath ig (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.
111,
112,
113,
114.
115.
116.
117,
118,
119.
120.
121,
122,
123.
124.
125.
126.
Storm Drainage Wells
Storm Water Piping
Structural Steel
Switchgear & Transformers
Thermoplastic Membrane Roofing
Ticket Windows
Tile & Grout
Toilet Accessories
Toilet Partitions
Trees
Tube Railing / Misc. Metals
Variable Frequency Drives
VAV Boxes
Walk -In Freezers & Coolers
Waterproofing Material
Wheel Chair Lifts (As applicable
Windows
to State Tax Laws)
Exhibit G; Public Infrastructure Scope and Budget
No.
Public Infrastructure Scope:
1
Water Main - new 12" line on 4 St between 14 and 16 Ayes; tapping sleeves; valves; stub up water & fire to BBS
2
Water Main - new ductile 16" line on 6 al.)etween 14 and 17 Ayes; 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
lWater - 3 fire hydrants on 4 St, 3 on 6 St, & 2 extras, with valves & 48 LF of 8" ductile iron pipe
5
Sewer - replace 12" san sewer line on 6th St between 16 Av & Pump Station 55, including manholes
6
Sewer - new 12" san sewer line on new 4 St between 14 and 16 Avs
7
Sewer - 8 sanitary laterals; 2 for 7 St; 2 for 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
20
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 lRoad
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
29
Sidewalk, curb, and gutter replacement :both sides of 4 St between 16 & 17 Aves
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 Ave$
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 ISidewalk,
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 -15 Ave between 3 & 4 Sts; & 6 & 7 St, alternating street sides; pole bases & conduit only
45 1
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 c6nsti'uction
$46,591,1125
50
Construction contingency 10% on Total Construction
$1,659,113
51
Construction Manager Fees and General Conditions
$2,657,429
52
Electricit - power lines - relocate power lines on 14 and 16 Aves s Allowance
$1,000,000
53
Road lighting - FPL furnish and install enhanced lighting oles, fixtures * Allowance
$200,000
54
Removal/dewatering of contaminated soils
$315,753
55
Owner's contingency
$1,450,000
56
Total Public- lnfYastructure 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 portion of the Public Infrastructure Work to the extent the City requests the
design and construction of the enhancement
** Additional items added to the Scope of Work will be funded by the requesting party.
&k6bd- -B
TABLE OF CONTENTS
Page
ARTICLE I DEFINED TERMS....................................................................................................1
ARTICLE II ENGAGEMENT OF OPERATOR ..................... ..15
ARTICLEIII TERM....................................................................................................................15
Section3,1 Term..........................................................................................................15
Section 3.2 Options to Extend....................................................................................15
ARTICLE IV OPERATOR'S RIGHTS AND OBLIGATIONS................................................16
Section 4,1
Section 4.2
Section 4.3
Section 4.4
Section 4.5
Section 4.6
Section 4.7
Section 4.8
Section 4.9
Section 4.10
Section 4.11
Section 4.12
Section 4.13
Section 4.14
Section 4.15
Section 4.16
Section 4.17
Operation..................................................................................................16
Use and Service Agreements...................................................................17
RevenueRights........................................................................................17
Concessions..............................................................................................18
LaborPeace..............................................................................................18
Si__gnage......................................................................................................18
NamingRights .............................................. . ............................................19
.Scheduling ................................................................................................19
AnnualPayment.......................................................................................19
OperatingExpenses . ............................................................................19
AccessRights......................:...................................................................20
Administration, .................... ..................................................................20
TransactBusiness. ..............I.......................,......................................20
County and City Acknowledgm. ....................
UtilityRates................................................................... ...21
Public Safet Personnel. ...... I ...... ..........................................21
Plaza.........i,...............................
ARTICLE V SOCCER STADIUM............................................................................................22
Section5.1
Construction ........................................
........................... .22
Section5.2
Scheduling.............................................`;.................................................24
Section5.3
Advertising...............................................:
................................................26
Section 5.4
Soccer Agreement.
...................................:...............................................26
ARTICLE VI GOVERNMENT PARTY USE................................+,.........................................26
Section 6.1 Government Party Use of Baseball Stadium... :....................
Section 6.2 Government Party Access......................................................................31
Section 6.3 Stadium Event Proceeds....................................:....................................31
ARTICLE VIZ COMMUNITY BENEFIT OBLIGATIONS.......................t................................31
Section7.1 Community Benefits . .............................................. ............................31
Section 7.2 Local Business Initiatives......................................................................32
Section 7.3 Community Suite . ...................................................... .........................32
ARTICLE VIII O*NERSHIP OF STADIUM, ASSETS...........................................................33
Section 8.1 "County Ownership Interest......................................................................33
Section $.2 ownership Of Team Depreciable Assets For Income Tax Pumoses......... 33
Section 8.3 Oymership of Promotional Rights...........................................................33
ARTICLE IX MAINTENANCE, REPAIRS AND CAPITAL IMPROVEMENTS................... 34
Section 9.1 Maintenance and Repairs.........................................................................34
Section 9.2 Capital Improvements................................................................................34
Section 9.3 Cgital`,Reserve Fund.................................................................................35
Section9.4 Title to Additions.....................................................................................36
Section9.5 Annual Reports..........................................................................................36
,t
ARTICLEX INSURANCE........................................................................................................38
Section 10.1 Insurance Re��uirements...........................................................................38
Section 10.2 Master Policy; `MLB Policies....................................................................39
Section 10.3 General Insuranbe Provisions....................................................................39
Section 10.4 Proceeds of Insur'hnce..............................................................................40
ARTICLE XI CASUALTY DAMAGE...\...................................................................................40
Section 11.1 Damage or Destructidn.............................................................................40
Section 11.2 Insurance Proceeds. IN ......40
Section 11.3 Government Relief Grahts........................................................................42
Section 11.4 Option to Terminate...............................................................................42
Section11.5 Survival .....................................................................................................42
ARTICLE XII EMINENT DOMAIN..................................................................................43
Section12.1 Total Taking..........................................................................................42
Section 12.2 Partial or Temporary Taking ...................................................................43
Section 12.3 Condemnation Proceedings and wards...................................................44
ARTICLE XIII INDEMNIFICATION ...................................................................................44
Section 13.1 Indemnification by Operator.....................................................................44
Section 13.2 Indemnification b Government Part'es....................................................45
Section 13.3 Indemnification Procedures......................................................................46
Section13.4 Insurance Recoveries.........................�..................................................
........... . .......•...........'....,,.47
Section 13.5 Survival.............. .......................... ....... ... ... .., ............ .48
ARTICLE XIV ASSIGNMENTS AND TRANSFERS..............................................................48
Section 14,1 Operator Assignments. .........................................................................48
Section14.2 Permitted Transfers.............................................................................48
Section 14.3 Release of Operator..............................................................................48
Section 14.4 Transactions that are not Transfers.
Section 14.5 Transfers by Government Parties............................................................49
Section 14.6 Transfers Void....................................................................................49
Section 14.7 Compliance Certificate.......................................................................49
Section 14.8 Collateral Assignment..............................................`.............................50
ii �.
ARTICLE XV•REPRESENTATIONS, WARRANTIES AND COVENANTS .........................55
Section 15,,1 County Representations, Warranties and Covenants...............................55
Section 15.1, City Representations, Warranties and Covenants....................................56
Section 15.3\\Operator Representations, Warranties and Covenants . ............................57
Section 15.4 'Mutual Covenants......................................................................................59
ARTICLE XVI T/
Section 16.1
Section 16.2
ARTICLE XVII DEFAULTS`\AND
Section 17.1 Operator Pefai
Section 17.2 Governmedt P.
Section 17.3 Remedies....'t..
Section 17.4 [INTENTIOM
Section 17.5 Termination. .
Section 17.6 Exclusive Rerr.
..... ..... "................................................................................61
Ad Valorem Taxes...........................................................61
3. ........................................................................................61
REMEDIES; TERMINATION.........................................62
zlt......................................................................................62
ity Default.......................................................................62
............................................................................................63
ALLY OMITTED]..............................................................63
4es.................................................................................65
ARTICLE XVIII ARBITRATION........ ��......... ............................................................. I ............ 65
Section18.1 Arbitration . ............ 1,.................................................................................. 65
Section 18.2 Emergency Relief. -A ................................................................................67
Section 18.3 No Indirect Damages. �.............................................................................67
ARTICLE XIX MISCELLANEOUS...............1..........................................................................67
Section19.1 Notices . ..........................\ ....................................................................67
Section19.2 Merger Clause . ................. \..................................................................... 68
Section19.3 Amendment . ........................ ..................................................................68
Section 19.4 BindingEffect .........................................................................................69
Section19.5 Waiver.....................................................................................................69
Section 19.6 Non -Recourse Liability of County, Personnel..........................................69
Section 19.7 Non -Recourse Liability of City PeNonnel...............................................69
Section 19.8 Non -Recourse Liability of Operator- ersonnel.......................................69
Section 19.9 Government Cooperation........................................................................69
Section 19.10 Government Representatives . .............................................................70
Section19.11 Consent of Parties...................................................................................71
Section19.12 Headings.................................................................................................71
Section 19.13 General Interpretive Provisions, .............................................................71
Section19.14 Severability.........................................................................................71
Section 19.15 Absence of Third -Party Beneficiaries . ....................................................72
Section 19.16 Governing Law.......................................................................................72
Section 19.17 Time of Essence..................................................................................72
Section 19.18 Relationship of Parties . ................................................. .. 72
Section 19,19 Sovereign Rights.....................................................................................72
Section 19.20 Antidiscrimination Clause......................................................................73
Section 19.21 Permitted Development Uses and Downzonin.......................................73
Section 19.22 Force Majeure................................................................... ...............73
iii �.
Section 19.23,',MLB Rguirements..................................................................................74
Section19.24 Wid Agreement. .....................................................................................74
Section 19.25C� nty Inspector General........................................................................74
Section 19.26 Books and Records; Audit.......................................................................74
Section19.27 Coun* arts.............................................................................................75
iv
1 OPERATING AGREEMENT
This Operating Agreement (this "Agreement") is made and entered into as of this
day of , 2009, by and among Miami -Dade County, a political subdivision of the State
of Florida (the "County"), Marlins Stadium Operator, LLC, a Delaware limited Iiability company
(the "Operator"), and solely for purposes of the City Provisions (as defined in Article I), the City
of Miami, a municipal corporation of the State of Florida (the "City").
RECITALS
A. Contemporaneously with the execution of this Agreement, the County, the City
and the Stadium Developer, an Affiliate of the Operator, are entering into a Construction
Administration Agreement that provides for the design, development and construction of the
Baseball Stadium. (Capitalized terms used herein are defined in Article I.) The Baseball
Stadium and the Baseball Stadium Site will be owned by the County.
B, This Agreement is being executed in conjunction with the Construction
Administration Agreement to provide for the operation and management of the Baseball Stadium
by the Operator once the Baseball Stadium has been substantially completed as provided in the
Construction Administration Agreement.
C. Contemporaneously with the execution of this Agreement, (i) the Team is
entering into the Non -Relocation Agreement with the County and the City pursuant to which the
Team is agreeing to play its home baseball games\in the Baseball Stadium, and (ii) the Operator,
the City and the County are entering into the Cl,�y Parking Agreement that provides for the
construction, operation and use of Parking Facilities "for Stadium Events.
NOW, THEREFORE, the Parties agree as fol
ARTICLE I
DEFINED TERMS
Capitalized terms used in this Agreement and not of erwise defined shall have the
meanings set forth below. Certain other capitalized terms whh are not defined herein shall
have the meanings provided in the Construction Administration Agreement,
"AAA" is defined in Section 18.1.
"Access Rights" is defined in Section 4.10.
"Admission Tickets" means the per event ticket or other indicia sb`d by (i) the Operator
or the Team or, with the consent of the Operator, any User, or (ii)ith respect to any
Community Event, the County or the City, in each case, which authorize admission to any
seating at the Stadium Premises for a Stadium Event, 1
1
"Admission Tickets Rihts" means the right to sell or otherwise distribute Admission
Tickets,
"Advent 'na" means, collectively, all advertising, sponsorship and promotional activity,
Signage, designati,ns (including "pouring rights" or similar designations), rights of exclusivity
and priority, and messages and displays of every kind and nature, whether now existing or
developed in the futu're-and whether or not in the current contemplation of the Parties, including
permanent, non-permarte'nt and transitory Signage or advertising displayed on permanent or non-
permanent advertising panels or on structures, fixtures or equipment (such as scoreboard
advertising and canopy advertising) whether within or on the exterior of the Baseball Stadium or
elsewhere in or around tl `� Stadium Premises and all other Signage; audio or video public
address advertising and and$,sage board advertising; programs; electronic insertion and other
forms of virtual advertising; sponsor -identified projected images; advertising on or in schedules,
Admission Tickets and yearbdoks; all other print and display advertising; promotional events
sponsored by advertisers; advdrtising display items worn or carried by concessionaires or
personnel engaged in the operatidp of any Stadium Event; and logos, slogans, uses of Marks or
other forms of advertising affixed`,to or included with cups, hats, t -shirts or other items; Field -
related advertising; advertising thrbugh Media Rights; and other concession, promotional or
premium items.
"Advertising Rights" means the right to display, control, conduct, license, permit, sell
and enter into agreements regarding the �lsplay of Advertising.
"Affiliate" means, with respect to a`- y Person, another Person that directly or indirectly
owns or controls, is owned or controlled by,\Qqr is under common control with such Person. For
purposes of this definition, one Person owns azl�ther when it owns more than fifty percent (50%)
of the equity interests in the other Person and on Person "controls" another when it has the right
to exercise more than fifty percent (50%) of the v ting power of the other Person.
"Affordable Seats" means at least 81,000 �dividuaI tickets for regular season MLB
Home Games each season, priced at no more than $1'5 per ticket in the first MLB season in the
Baseball Stadium. The price of those tickets may be i creased in subsequent seasons, provided
that the price in any season shall not reflect a greater th 3.5% cumulative annual growth rate
from the initial $15 price (e.g., the price in the third season hall not exceed $16.07),
"Applicable Law" means any applicable law, statute, code, ordinance, administrative
order, charter, resolution, order, rule, regulation, judgment, decree, writ, injunction, franchise,
permit, or license of any Governmental Authority, now existiz or hereafter enacted, adopted,
promulgated, entered, or issued. \
"Arbitration" is defined in Section 18.1.
"Arbitration Panel" is defined in Section 18.1.
"Arbitrator" is defined in Section 18.1.
2
"13, seball Stadium" means the stadium being constructed on the Baseball Stadium Site
pursuantto he Construction Administration Agreement.
"Basebb'all Stadium Site" is defined in the Construction Administration Agreement.
"Business t)ay" 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 eriod shall be extended to and through the next succeeding Business Day.
"Ca ital Im rove` ents" means improvements to the Stadium Premises of a character
required to be capitalized nder generally accepted accounting principles and which include
Emergency Capital Repairs a{d Necessary Improvements but exclude Maintenance and Repairs.
"Capital Improvement Threshold Amount" means (a) with respect to the first Operating
Year, $400,000, and (b) with rA,ect to each Operating Year thereafter, the prior Operating
Year's Capital Improvement ThreshQld Amount increased by 5%.
"Capital Reserve Fund" means segregated account owned by the County and held by a
Qualified Trustee from which Capital Im�roveinents will be paid as described in Section 9.3.
"Casual " is defined in Section 11.1.
"Casualty Expenses" is defined in Sect n 11.2.
"Casualty Repair Work" is defined in Sec 'on 11.1.
"C., itx" is defined in the Preamble to this Agre • meni
"City Parking Agreement" means the City Packing Agreement between the City, the
County and the Operator dated as of the date of this Ag%ent, as it may be amended and/or
restated. \
"Cijy Provisions" means Article 11I; Sections 4.5, 4. (b), 4.14 and 4.16; Article V;
Article VI; Article VII; Article VIII; Sections 9.3-9.5; the relevaht provisions of Section 10,1(b),
Article XI, Article XII; XIII; Article XIV; Article XV; Article XV sArticle XVII; Article XVIII;
the relevant provisions of Article XIX; and the related defined terms`i.Ii this Article I.
"City Representative" is defined in Section 19.10.
"Collateral Assignnment" means any pledge, collateral assignmeXt or other security
interest or agreement by which all or any portion of the Operator's interests rights under this
Agreement, including any of the Operating Rights, is pledged, encumbered, collaterally assigned
or transferred to secure a debt or other obligation.
"Community Event" means an amateur athletic, public service or other non- tofit event
that is conducted or sponsored by a Government Party ,at the Stadium Premises pu`r uant to
Article VI and which is not undertaken for commercial purposes (Le., there is no admission
charge, use fee or other consideration payable in connection with such event, other than amounts
payable to designated charities).
"Community Event Date" is defined in Section 6.1.1.
is defined in Section 6,1.4.
" is defined in Section 6.1.3.
11 is defined in Section 6.1.2,
'is defined in Section 7.3.
"Concessions" mans, collectively, food, beverages (both alcoholic and non-alcoholic)
(`Beverage"), souvenirs, *arel, novelties, publications and merchandise and other items,
goods, equipment (includinkmechanical, electrical or computerized amusement devices), and
wares. \
"Concessions Rights" m4ns the right to sell, display, distribute and store Concessions
within the Stadium Premises, *ether from shops, kiosks, individual vendors circulating
throughout the Stadium Premises, � staurants, bars, clubs, Suites, party rooms, dining rooms or
other permanent or temporary facilit%YSlar-round
and to conduct catering and banquet sales and services,
both during Stadium Events and on a basis.
"Condemnation Action" means a 1 king by any Governmental Authority (or other Person
with power of eminent domain) by exerci of any right of eminent domain or by appropriation
or condemnation, or an acquisition by any Governmental Authority (or other Person with power
of eminent domain) by threat of condemnatio�or through a private purchase in lieu thereof.
"Condemnation Award" means all sums, amounts or other compensation payable to the
Parties as a result of or in connection with any Co demnation Action.
"Construction Administration Agreement" eement" mans the Agreement among the County, the
City and the Stadium Developer dated as of the date f this Agreement, as it may be amended
and/or restated.
"County" is defined in the Preamble to this Agreemnt.
"County Representative" is defined in Section 19,10,
"Default" means a Government Party Default or Operat
"Dispute" is defined in Section 18. 1.
"Emergency Capital Repairs" means a Capital Improvement that must be completed
immediately and without prior consent of the County Representative o City Representative in
order to: (i) comply with a notice of violation or similar order issued by a Governmental
Authority that requires that a Necessary Improvement be completed prior\to the annual review
4
process set forth in Section 9.5(3) herein, (ii) to protect public safety and welfare, (iii) to prevent
unnecessary expenseat would otherwise occur if the repair was not conducted immediately, or
(iv) to ensure all syst ms required to operate the Baseball Stadium for its intended use are
functioning.
"Entire Site" is defined in the Construction Administration Agreement.
"Event Specific Concessions" is defined in Section 6.1.6.
"Exclusive Areas" means all, or portions of, areas of the Stadium Premises that are not
intended for use by the general public, including the following; (i) areas used by the Operator,
the Team and concessionaires`=.as office space and for event personnel; (ii) storage areas and
offices for managers, coaches, gainers, equipment managers and related personnel of the Team;
(iii) Team and auxiliary clubhouses, locker rooms and practice, training and medical facilities
(including all weight training and exercise rooms, x-ray rooms, equipment rooms, video rooms,
batting cages, auditorium, cafeteria;"Players' lounge, family lounge and related facilities); (iv) the
production, scoreboard and broadcast operations room and related facilities and equipment;
(v) separate umpire, baseball operations and in -game entertainer offices and dressing rooms; (vi)
ticket offices; (vii) Suites and privatelclub rooms and lounges; and (viii) areas that have been
exclusively licensed or otherwise comm4itted for use by Users or Service Providers.
"Exculpatory and Non -Discrimination Language" means the language set forth in the
following paragraph with the name of the' culpating party inserted into the blanks;
acknowledges thdt this Agreement imposes no contractual obligations
upon Miami -Dade County or the Cit of Miami, and that shall not look to
or proceed against such County or City (or any of their respective officials, employees,
agents or consultants) with respect to a�y default under this Agreement. In performing
any services at the Stadium Premises'I
this Agreement, shall not
discriminate against any worker, employ8e or applicant, or any member of the public
because of race, sex, marital status, colo% creed, religion, national or ethnic origin,
ancestry or disability. \
"Field" means the playing surface (including fie` d lighting, foul poles, backstop, warning
track, bullpens, dugouts, foul territories and perimeter walls) located inside of the Baseball
Stadium.
"Force Majeure" means a war, insurrection, strike or lockout, riot, hurricane, flood,
earthquake, fire, casualty, act of God, act of the public enem epidemic, quarantine restriction,
freight embargoes, lack of transportation, governmental restrictz n, court order, unusually severe
weather, act or the failure to act of any public governmental age cy or entity, terrorism, or any
other cause in each case (including the events specified above) yond the reasonable control
and without the fault of the Party claiming an excuse from perform ce; provided, however, that
any Force Majeure involving or relating to County or City governor ntal restrictions or acts or
failures to act of any County or City agency or entity shall not relieve e County or City, as the
case may be, of their obligations under this Agreement unless the fail 9 to act is as a result of
another Force Majeurevent beyond the reasonable control and without the fault of the Party
claiming an excuse fro performance.
"'Funding Ratios"\rneans (a) with respect to the County, a fraction having a numerator
equal to the County's fin cial contribution to the Baseball Stadium Project pursuant to Sections
3.8 (Public Infrastructure),k.2(x) (County Funding) and 6.5.1 and 6.5.2 (Cost Overruns) of the
Construction Administration�Agreement and a denominator equal to the Total Project Costs; (b)
with respect to the City, a fra�tion having a numerator equal to the City's financial contribution
to the Baseball Stadium Prollzict pursuant to Sections 3.8 (Public Infrastructure), 6.3 (City
Funding) and 6.5.1 and 6.5.2 (Cbst Overruns) of the Construction Administration Agreement and
a denominator equal to the Total`Project Costs; and (c) with respect to the Operator, a fraction
having a numerator equal to the Team Affiliates' financial contribution to the Baseball Stadium
Project pursuant to Sections 6.4 (Stadium Developer Funding) and 6.5.1 and 6.5.2 (Cost
Overruns) of the Construction Administration Agreement and a denominator equal to the Total
Project Costs. In addition, the Operator's Funding Ratio contribution also shall include a product
equal to: $35,000,000 times a number dqual to (i) the number of years lapsed under the term of
this Agreement, divided by (ii) the teat' of this Agreement; and the County's Funding Ratio
contribution shall include a product equal io: $35,000,000 times a number equal to (i) the term of
this Agreement minus the number of years`'lapsed in the term of this Agreement, divided by (ii)
the term of this Agreement. For purposes 6� the foregoing, the County's and City's financial
contributions pursuant to Section 3.8 of the gonstruction Administration Agreement shall not
include amounts they would have otherwise ext nded if there was no Baseball Stadium Project.
As used herein, "Total Project Costs" means the um of the numerators set forth in (a), (b) and
(c) above, plus the amounts referenced in the secon sentence of this paragraph.
"Government Entities" means, collectively, the City, the County, each County and City
agency, commission, division, subdivision, department+, instrumentality or other body or entity,
and their respective Affiliates.
"Government Indemnitees" is defined in Section 13 �k.
"Government Party" means each of the County and
"Government Party Default" is defined in Section 17.2.
"Government Relief Grant" means a financial grant or other non-refundable relief or
assistance from the Federal Emergency Management Agency, the \ epartment of Homeland
Security, or any other federal, state or local Governmental Authority.
"Government Representative" is defined in Section 19.10.
"Governmental Authority" means any federal, State, County, unicipal or other
governmental department, entity, authority, commission, board, bureau, co agency, or any
instrumentality of any of them.
"Insurance Escrow Agent" is defined in Section 11.2(a).
Agreement" is defined in Section 11.2(a).
" is defined in Section 10.1.
"Losses" is de`tined in Section 13.1.
"Maintenance arld Repairs" means work, labor and materials required in the ordinary
course of business to be %erformed and used to: (i) maintain in good, clean working order, and,
repair as a result of ordiAgy wear and tear, the entire Stadium Premises, including, but not
limited to, the Baseball Stadium, plaza, retractable roof, field and lighting features, safety
features, and all structures) components, systems, fixtures, landscaping, and furnishings
contained therein, (ii) replace,`�at the end of their economic life cycle, those components of the
Baseball Stadium whose reasonably expected economic life at the time of original installation
was two years or less, or (iii) conduct routine and preventative maintenance consistent with
manufacturer -provided warranty, ``,maintenance, cleaning and best engineering and facility
management practices. All MaintBnance and Repairs must be conducted consistent with the
maintenance and repair standards of X4ajor League Baseball facilities. Maintenance and Repairs
do not include Necessary Improvemen14 or Emergency Capital Repairs,
"Maior League Baseball" mea s, individually and collectively, the Office of the
Commissioner of Baseball, the Commis ioner of Baseball, the Major League clubs, Major
League Baseball Enterprises, Inc., Majo , League Baseball Properties, Inc., Major League
Baseball Properties Canada, Inc., Major Le� e Baseball Productions, MLB Advanced Media,
Inc., MLB Advanced Media, L.P., MLB M8ia Holdings, L.P., MLB Media Holdings, Inc.,
MLB Online Services, Inc., each of their resp1 ctive present and future affiliates, assigns and
successors, and any other entity owned equally bXthe Major League Baseball clubs.
"Major Necessary Improvements" means ecessary Improvements for major systems
and components of the Stadium Premises with thei correspondent expected economic and/or
physical life cycle, reflected on Exhibit "A" attached,' such may be revised and updated by the
Parties before Substantial Completion, and that serve as a general guideline and an approximate
timeline in the approval process set forth in Section 9.5(3)
"Major Sponsor" means a Person that spends at l' ast the following amounts in any
applicable Operating Year with the Team Affiliates (collecti� ly) for Advertising or other rights
or benefits relating to the Team Affiliates and/or the Basebal%Stadium: (i) $500,000 in any of
Operating Years 1-15, (ii) $525,000 in any of Operating Years 1\\(-25, or (iii) $600,000 in any of
Operating Years 26-35. \
"Marks" means any and all trademarks, service marks, copyrights, names, symbols,
words, logos, colors, designs, slogans, emblems, mottos, brands, \designations, trade dress,
domain names and other intellectual property (and any combination Nt ereof) in any tangible
medium.
"Media Rights" means the right to control, conduct, sell, license, p blish, authorize and
grant concessions and enter into agreements with respect to all media, tans, technology,
distribution channels or processes, whether now existing or hereafter develop d and whether or
not in the preset contemplation of the Parties, for preserving, transmitting, disseminating or
reproducing for 4earing or viewing, Stadium Events and descriptions or accounts of or
information with �Xespect to Stadium Events, including by Internet, radio and television
broadcasting, print, film, photographs, video, tape reproductions, satellite, closed circuit, cable,
digital, broadband, DSD, satellite, pay television, and all comparable media.
"MLB Home Games" means each of the Team's scheduled or rescheduled baseball
games at the Baseball Stadium, including exhibition, spring training, regular season, playoff and
World Series games.
"MLB Jewel Events",.. means the MLB All-Star Game (and related events), World
Baseball Classic and other hv1 jor League Baseball -controlled events expected to have an
attendance of more than 5,000 p6 le scheduled or rescheduled at the Baseball Stadium.
"MLB Reserved Dates" means all dates (i) on which MLB Home Games or MLB Jewel
Events have been scheduled (or rescheduled) or (ii) that the Team is required to reserve for the
scheduling of MLB Home Games (including potential post -season games) or MLB Jewel Events
under MLB Rules and Regulations
"MLB Rules and Re ulations" mens 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 ,asic 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 generally and Major League
Baseball; and (ii) any present and future mandates, �i�des, regulations, policies, interpretations,
bulletins or directives issued or adopted by Major Lea e Baseball applicable to Major League
Baseball Clubs generally.
"MLS Home Games" is defined in Section 5.2(c).
"MLS Reserved Dates" is defined in Section 5.2(c).
"Naming Rights" means the right to (i) name and re -name $4e Stadium Premises and any
portion thereof, including the right to grant the Stadium Name, an(ii) contract from time to
time with any Person or Persons on such terms as the Operator dete Tines with respect to the
naming of or attribution of the Stadium Premises or any portion then of (a "Naming Rights
Agreement"),
"Necessary Improvements" means Emergency Capital Repairs nd those Capital
Improvements that are required (i) by Applicable Law; (ii) to obtain requ'ed insurance at
commercially reasonable rates; (iii) by the manufacturer, supplier or installer of y component,
system or equipment to preserve warranty rights or for compliance with safety req rements; (iv)
to repair or restore components of the Stadium Premises that are damaged or stroyed by
Casualty, to the extent not covered by insurance (including the payment of deductible from the
Capital Reserve Fund as provided for in this Agreement); or (v) to replace kicluding
replacements via equipment leases paid from the Capital Reserve Fund, as approved by all
Parties) components o6he Stadium Premises at the end of their economic life cycle.
is defined in Section 14.8(e).
is defined in Section 14.8(e).
"Non -Relocation A rd:ement" means the Non -Relocation Agreement among the Team,
the County and the City date `,,as of the date of this Agreement, as it may be amended and/or
restated.
"Operating Rights" is defined in Section 4.1.
"Operating Year" means (i) tae period commencing on the Substantial Completion Date
and ending on the next succeeding October 31 and (ii) each subsequent twelve (12) month period
during the Term commencing on the Ndvember 1 following the Substantial Completion Date and
ending on the next succeeding October � 1; provided that if this Agreement terminates on a date
other than October 31, there shall be a� ial last Operating Year ending on the date of such
termination,
"Operator" means Marlins Stad.
company, and its pennitted successors and
"Operator Indemnitees" is defined in
Operator, LLC, a Delaware limited liability
"Operator Default" is defined in Section 17.
13.2.
"Operator Reserved Dates" is defined in Sectio% 6.1.2.
"Parking Facilities" is defined in the City Parking,A\andd
reement.
"Partial Taking" is defined in Section 12.2.
"Parties" means, collectively, the City, the County eOperator.
"Person" means any natural person, firm, partnership, as ciation, corporation, limited
liability company, trust, public body, authority, governmental unit or , ther entity.
"Plaza" means an area on the western portion of the Baseb ll Stadium Site, more
particularly described in the Construction Administration Agreement, th t will be open to the
general public as provided in Section 4.17 of this Agreement.
"Premium Seating" means seating in the Baseball Stadium for whia premium is
charged above the generally applicable ticket price for rights that include access amenities not
available to purchasers of general admissions tickets, such as food delivery se ice, special
access to seats, and exclusive bars, restaurants and lounge areas; such seating shall in\lude Suites
0
and seats sod to the public as "club seats," "dugout seats" and "field boxes" (or any replacement
terms adopte in the future),
"Promo ional Rights" means and includes any and all of the following rights as applied
to, arising out o'\or connected in any way with Major League Baseball, the Team Affiliates, the
Proprietary Indic , the Team's Major League Baseball franchise, the Baseball Stadium, the
Baseball Stadium "Ate, and Stadium Events and other permitted uses of the Stadium Premises:
(a) rights 'pf exploitation, in any format now known or later developed, through
advertising, promotions, marketing, merchandising, licensing, food services, franchising,
sponsorship, publicatio'is, hospitality events or through any other type of commercial or
promotional means, including but not Iimited to advertising by interior, exterior or perimeter
signage, through printed matter such as programs, posters, letterhead, press releases, newsletters,
tickets, photographs, franchlsing, concessions, restaurants, party rooms, uniforms, schedules,
displays, sampling, premiums and selling rights of any nature, the right to organize and conduct
promotional competitions, to girye prizes, awards, giveaways, and to conscript official music,
video or other related data or information:
(b) media rights, in any `,format now known or later developed, including but not
limited to the right to broadcast, transit, display and record images and recordings, in any and
all media now known or hereafter deviled, including but not limited to radio, television, cable,
satellite and internet;
(c) Naming Rights; and
(d) rights to create, use, promos§ and commercialize any representation of the
Baseball Stadium, in whole or in part, or the name or contents thereof, for licensing,
promotional, publicity, general advertising and o er suitable purposes, including but not limited
to the creation, use, promotion and commerci ization of text, data, images, photographs,
illustrations, animation and graphics, video or au �{{o segments of any nature, in any media or
embodiment, now known or later developed; and al`. other rights of marketing and advertising,
exploitation, in any format, now known or later developed, and associated promotional
opportunities.
"Property Insurance Polie y" is defined in Section 118.1.
"Pro -petty Insurance Proceeds" means any proceed paid pursuant to the Property
Insurance Policy and designated for the repair, restoration, re lacement or rebuilding of all or
any part of the Stadium Premises.
"Proprietary Indicia" means all Marks, together withy other copyrighted or
copyrightable properties, in any format now known or later developed, that are or become owned
or controlled by a Team Afftliate or Major League Baseball, which are c�r become commercially
identified or associated with a Team Affiliate or Major League Baseball,qr are now or hereafter
licensed by or to a Team Affiliate or Major League Baseball.
10
"Odalified Trustee" means a financial institution qualified to act as a depository, jointly
appointed b the County, the City and the Operator for the purpose of administering the Capital
Reserve Fun . The fees charged by the Qualified Trustee shall be funded from the interest
earnings on de osit in the Capital Reserve Fund.
TSR" mans a fast food restaurant or food shop in which meals or food items are sold at
a counter or wind w, or for take-out purposes. "QSR" does not include casual dining restaurants
with waitered servi6e or Latin restaurants that may serve croquettes or pastries from a counter or
window (such as CA Versailles and La Carretta).
"Renewal Term'' is defined in Section 3.2.
"Retail Rights" mes the right to sell retail goods, merchandise and products (including
souvenirs, novelty items an`licensed products) to the general public at the Stadium Premises
and to operate areas at the St dium Premises, including at the Team Store(s) and outlets open to
the general public on a year-ro .nd basis from the Stadium Premises, for such purposes.
"Revenue Rights" is defin4d in Section 43.
"Seat Rights" means the righ% to sell or license Admission Tickets, Premium Seating and
other rights to view any or all Stad%um Events, including personal seat licenses and similar
rights. \�
"Secured Part v" means any holdA\ or beneficiary of any Collateral Assignment, which
may include the trustee under a security ag3�eement or indenture, the collateral or administrative
agent under a credit facility or note purchase greement, the holders of any notes, bonds or other
instruments secured thereby, or any insurer o uarantor of any of the foregoing (together with
any successor or transferee thereof).
"Service Agreement" is defined in Section
"Service Provider" means any Person with �hom the Operator enters into a Service
Agreement for the purpose of performing work or provi ing services, labor, materials or supplies
with respect to all or any part of the Stadium Premises.
"Si a e" means all signage (whether permanent atemporary) in or on the Stadium
Premises, including scoreboards, jumbotron or other repla� screens, banners, fascia boards,
displays, message centers, advertisements, signs and marquee sii Xfr,
"Soccer Stadium" is defined in Article V.
"Soccer Team" means an entity that has been grantede by Major League
Soccer whose home territory is the City of Miami and whosadium is the Soccer
Stadium. For purposes of the restrictions on the Soccer Team in"Soccer Team" shall
include any Person that operates, manages or otherwise uses the Ssum.
"Sports User" is defined in Section 6.1.2.
11
"Stadium Agreements" means, collectively, this Agreement, the Construction
Administration Agreement, the Non -Relocation Agreement, the City Parking Agreement and the
Assurance Agregment.
"Stadium developer" means Marlins Stadium Developer, LLC, a Delaware limited
liability company, and its permitted successors and assigns.
"Stadium Evenl;' means any event held at the Stadium Premises, including MLB Home
Games; MLB Jewel Ev6pts; Team practices, exhibitions, clinics, promotions and fan activities;
and other professional ar amateur sporting events or exhibitions, concerts, trade shows,
conventions, general audience, family or other targeted audience shows, performances or
exhibitions. Notwithstanding the foregoing, Stadium Events shall not include Community
Events. l
"Stadium Image Rights
means the right to (i) use or display any Symbolic
Representation or other visual depl Qtion of the Stadium Premises and all associated Marks in
connection with (A) the design, ma�,�Zfacture, production, sale, use, distribution, importation,
exportation, advertisement and display of goods or services bearing one or more Symbolic
Representations, including hats, t -shirts, sweatshirts, posters, models and other souvenirs and
apparel, and (B) the promotion of the Bas pall Stadium and the production, promotion, telecast
or other exploitation in any medium, whetper now known or hereafter created, of Stadium
Events, and (ii) contract from time to time with any Person or Persons on such terms as the
Operator determines with respect to the use aA�enjoyment of any Symbolic Representation and
any associated Mark.
"Stadium Information Systems" means, collectively, the public address system,
scoreboards, video boards, ribbon boards, matrix\b ds, message boards and similar systems
(and all related control and equipment rooms) located i the Stadium Premises.
"Stadium Name" means the principal name given o the Baseball Stadium in any Naming
Rights Agreement and any replacements Thereof from time o time.
"Stadium Premises" means the Baseball Stadium, thBaseball Stadium Site (including
the Plaza) and all other improvements from time to time const cted or otherwise located on the
Baseball Stadium Site in accordance with this Agreement, tog ther with all rights, privileges,
easements and appurtenances relating thereto.
"State" means the State of Florida.
"Substantial Completion Date" means the date upon whic Substantial Completion
occurs as provided in the Construction Administration Agreement.
"Suites" means the private viewing boxes to be designed, const \cted, furnished and
equipped as part of the Baseball Stadium.
12
"S mbolie Representation" means any two-dimensional or three-dimensional replica,
model, and , ic, graphic or photographic rendering or other visual representation of the Stadium
Premises or , y portion thereof.
"Tar ete, Tax" means any taxes or government charges on: (i) receipts from purchasers,
lessees or licenses of Suites, of amounts in excess of the face value of the admission tickets for
seats in the Suites l(excluding any generally applicable State sales tax on those amounts); (ii) the
activities conductedd by a Team Affiliate at the Stadium Premises or the income from such
activities unless the \tax or governmental charge applies to the same or similar activities
conducted by all or a 1'road range of businesses or persons within the County or the City or the
income from such activities; (iii) receipts from the sale of any tickets (including tickets in Suites)
or other rights to admission to the Stadium Premises unless the tax or governmental charge is one
of general application levidO against or imposed generally on receipts from the sale of tickets or
other rights to admission to`#orts, amusement and entertainment facilities within the County or
City; (iv) the gross receipts �r incomes of players, coaches, enterprises, businesses, teams, or
team owners who use the Stadium Premises unless the tax or governmental charge is one of
general application levied against or imposed on the gross receipts or incomes of people,
enterprises, businesses, or owne�s of enterprises or businesses, as the case may be, within the
jurisdiction of the County or City;\(v) any capital gain on or appreciation in the investment in a
Team Affiliate unless the tax or govt ental charge is one of general application to investments
in enterprises or businesses of any t* within the jurisdiction of the County or City; or (vi) the
sale of the Major League Baseball fral Oise or an ownership interest in a Team Affiliate unless
the tax or governmental charge is one ofyeneral application to the sale of ownership interests in
enterprises or businesses of any type wit hr the jurisdiction of the County or City,
"Tax" means (i) any general or s ecial, ordinary or extraordinary, tax, imposition,
assessment, levy, usage fee, excise, deduction, withholding or similar charge, however measured,
regardless of the manner of imposition or be eficiary, that is imposed by any Governmental
Authority and any and all liabilities (including i Merest, fines, penalties or additions with respect
to any of the foregoing) with respect to the foregol, g, and (ii) any transferee, successor, joint and
several, contractual or other liability (including1`i bility pursuant to Treasury Regulations §
1.1502-6 (or any similar provision of state, local r non-U.S. law)) in respect of any item
described in clause (i).
"Team" means Florida Marlins, L.P., a Delaware mited partnership which owns a Major
League Baseball club, and its permitted successors and asst` ns.
"Team Affiliate" means the Operator, the Team they tadiu
p m Developer and any other
entity that is an Affiliate of the Team, the Operator or the Stadi m Developer.
"Team Depreciable Assets" means any tangible personal p operty included in or relating
to Stadium Premises, whether located within public spaces in the tadium Premises or in the
Exclusive Areas, to the extent paid for or provided by the Operator, the Team, or any of their
licensees, Users, Service Providers or Affiliates, regardless of thegaI ownership for non-
income tax purposes.
"Team Foundation" is defined in Section 7.1.
13
"Team Store" means one or more retail stores open during Stadium Events and to the
general public on,a year-round basis to which access may be obtained without an Admission
Ticket to a Stadi* Event, and which sell, among other items, sports related apparel and
merchandise associat with the Team and other sports teams.
"=ection
"s defined in Section 12.2.
" 3.1.
"Ticket Operations" mea
existing or hereafter developed\
Tickets to Stadium Events) rela
(such as computerized ticket eq
the printing, selling and distribi
printing and distributing of press
all ticket facilities of every kind and description, whether now
I all rights (including Advertising with respect to Admission
.g thereto, including ticket windows and ticket sale facilities
3,nent systems), and all ticket operation functions, including
age of all Admission Tickets to all Stadium Events, and the
"Ticket Operations Riyhts" means the right to the full use and enjoyment of, and right to
control, provide, conduct, license, grant' oncessions with respect to and contract for, Ticket
Operations with respect to the Stadium Pre ises or any Stadium Event, including the right to sell
or license the right to provide Ticket Operati ps on an exclusive or nonexclusive basis.
"Total Taking" is defined in Section 12.
"Transfer" is defined in Section 14.1.
"Unusable Condition" means the existence
any Condemnation Action or any Casualty;
(a) Major League Baseball determines
is such that the MLB Rules and Regulations, or a spec
prohibit the playing of MLB Home Games at the Baseball
one of the following conditions due to
condition of the Stadium Premises
Major League Baseball directive,
Jium: or
(b) a Governmental Authority determines e use or occupancy of any
material portion of the Stadium Premises (excluding the Plaza) i\(i) not permitted under any
Applicable Law or (ii) is unsafe for customary usage.
"Use Agreement" is defined in Section 4.2.
"Use Rights" means the right to license, sublicense or otherwise brant Users the right to
use the Stadium Premises (or any portion thereof), and to enter into Use Ai�gements.
"User" means the Team and any other Person that is granted by the O1for the right to
use or occupy any part of the Stadium Premises. 7
14
ARTICLE II
ENGAGEMENT OF OPERATOR
The Ope tar shall be the sole and exclusive manager and operator of the Stadium
Premises during t e Term of this Agreement with sole responsibility and authority and full
control and discreti n in the operation, direction, management and supervision of the Stadium
Premises, subject to and as more fully described in this Agreement. The Operator is an
independent contractor nd shall have no authority to bind the County. Except as provided in
Article VI with respect pp Community Events, the Government Parties shall not, and shall not
authorize or grant any PeAon other than the Operator any right to, operate, manage, coordinate,
control, use or supervise thy\ Stadium Premises (or any portion thereof) at any time during the
Term. \
ARTICLE III
TERM
Section 3.1 Term. The terrh of this Agreement shall commence on the date hereof and
shall expire on October 31 in the year`\Yhich is the later of (a) the year in which the thirty-fifth
(35th) annual anniversary of the Substantial Completion Date occurs or (b) the latest year (but in
no event later than 2052) in which any ohe County Bonds are scheduled to mature upon their
initial issuance (or such earlier date on whi' h all of the County Bonds have been repaid except
pursuant to a refinancing, in which case tNk Agreement shall terminate on the earlier of the
original maturity date of all the originally issue' County Bonds or the maturity date of any bonds
that refund or refinance the County Bonds), unl s sooner terminated pursuant to any applicable
provision of this Agreement (such term as itm� be so terminated, or as it may be extended
pursuant to Section 3.2, being referred to herein ast e "Term"). Notwithstanding anything to the
contrary in this Agreement, the Operator's obligation, with respect to the management, operation
and maintenance of the Stadium Premises shall co ence upon the Substantial Completion
Date,
Section 3.2 Options to Extend. The Operato shall have the right (but not the
obligation) to extend the Term on the same terms and con rtions set forth in this Agreement
(except as expressly provided in this Agreement) for two addiitionalterms of five (5) years each
(each, a "Renewal Term"); provided that the Operator shall not ave the right to extend the Term
if the Operator has received from the County a written notice of Operator Default prior to the
time of exercise and such Operator Default continues to exist at the time of exercise. The
Operator shall exercise its right to extend the Term by delivering wn en notice of such exercise
to the County and the City no later than two (2) years prior to the expir bion of the initial Term or
the first Renewal Term. \
15
ARTICLE IV
OPERATOR'S RIGHTS AND OBLIGATIONS
Section 4.1 aeration, The Operator shall have the exclusive right, authority,
responsi ility and obligation to operate, manage, coordinate, control, use and supervise the
conduct aN operation of the business and affairs pertaining to or necessary for the proper
operation, m intenance and management of the Stadium Premises on a year-round basis, all in
accordance wi the terms and provisions of this Agreement (the "Operating Rrghts"). The
Operator shall b responsible for operating and managing the Stadium Premises for all Stadium
Events (includingCommunity Events), in accordance with the standards of service and quality
generally accepted ithin the Major League Baseball professional ballpark industry, and with
due regard for the he , th and safety of Persons lawfully on the Stadium Premises. The Operating
Rights and obligations all include the following:
(a) schN uling and contracting for all Stadium Events and establishing all
rules and regulations respecting the Stadium Premises and Stadium Events;
(b) employment (as agents, employees or independent contractors),
termination, supervision and coh, trot of all personnel (whether full-time, part-time or temporary)
that the Operator determines to b�. necessary for the operation of the Stadium Premises, including
ticket sellers, ticket takers, maint�ance crews and security personnel (other than public safety
personnel as described in Section15); and determination of all compensation, benefits and
other matters with regard to such per 9imel;
(c) selling and establishing the prices, rates, fees or other charges for goods,
services or rights (including Concessionnd Seat Rights for all Stadium Events) available at or
with respect to the Stadium Premises;
(d) marketing and promotl�g Stadium Events, and identifying and contracting
with all contractors and vendors in conheetion with, and managing, coordinating and
supervising, all Ticket Operations, Concessions end Advertising;
(e) procuring, negotiating and h tering into contracts for the furnishing of all
utilities, labor, equipment, services and supplies ecessary for the operation of the Stadium
Premises;
(f) commencing, defending and settl.'ng such legal actions or proceedings
concerning the operation of the Stadium Premises as are ecessary or required in the opinion of
the Operator, and retaining counsel in connection therewith\provided that the Operator shall not
defend or settle actions or proceedings against the County or\City except as provided in Article
XIII;
(g) controlling the issuance of and issuing all credentials for Stadium Events;
(h) preparing the Stadium Premises for Stadium Events and converting the
Stadium Premises from one type of Stadium Event to another;
16
W performing, or causing to be performed, all Maintenance and Repairs,
Emergency C\mai
epairs and Necessary Improvements in accordance with Article IX; and
operating the Stadium Premises in compliance with Applicable Law,
including byining or causing to be maintained all necessary licenses, permits and
authorizationoperation of the Stadium Premises,
Section 4.2 Use and Service Agreements. The Operator shall have the exclusive right
to negotiate, execute a%d perform use agreements, licenses and other agreements ("Use
Agreements"): (a) with fl, e Team, provided that such Use Agreement is consistent with the
terms of the Non-Relocatio . Agreement; or (b) with other Persons who desire to schedule
events, performances, telecas , broadcasts or other transmissions in, from or to the Stadium
Premises, or any part thereof, desire otherwise to license the use of or to occupy the
Stadium Premises or any part th�reof. The Operator shall further have the exclusive right to
negotiate, execute and perform ag�i ements with Service Providers that pertain to the service,
maintenance and/or operation of he Stadium Premises or any part thereof ("Service
Agreements"). Each Use Agreement and Service Agreement shall be in writing. No Use
Agreement or Service Agreement shall e tend beyond the Term, including any early termination
of the Term pursuant to this Agreement. ch Service Agreement providing for payments to the
Service Provider of more than $250,000 (such amount to be increased each year by the
percentage increase in the Consumer Price I dex for All Urban Consumers in the Miami area),
including the agreement with the principal c �cessionaire for the Baseball Stadium, and each
Use Agreement granting the User the right to coNduct a Stadium Event open to the general public
shall contain Exculpatory and Non-Discrimina ion Language. Additionally, each Service
Agreement that will be funded with amounts iA the Capital Reserve Fund shall include a
representation from the Service Provider that it is n, t on the County debarment list pursuant to
Section 10-38 of the County Code. The Operator sha `l, provide the County Representative copies
of such Service Agreements upon request of the Coun Representative,
Section 4.3 Revenue Rights. The Operator shakl have the sole and exclusive right to
exercise, control, license, sell, authorize, establish the pri'6 %revenu
ther terms for, and contract
with respect to all rights, revenues and rights to revenuesfrom or related to the use,
occupancy, operation, exploitation or existence of the SPremises from all sources,
whether now existing or developed in the future and whethein the current contemplation
of the Parties (collectively, "Revenue Rights"), in each case terms and conditions as the
Operator shall determine in its sole discretion. Subject to 6.3, the Operator shall have
the sole and exclusive right to collect, receive and retain all� and other consideration of
every kind and description arising from or relating to the Revenue Ri, hts. The Revenue Rights
shall include the following rights, and the revenues and rights to r venues arising from the
exercise, control, license, sale, authorization or operation of such right • (i) Admission Tickets
Rights; (ii) Advertising Rights; (iii) Stadium Image Rights; (iv) Media R' hts; (v) Concessions
Rights; (vi) Naming Rights; (vii) Retail Rights; (viii) Seat Rights; (ix) TickOperations Rights;
u
(x) Use Rights; (xi) rights to operate the Stadium Information Systems, (x) rights to revenues
from the exploitation of all other intellectual property owned by or licensed to the Operator and
associated with the Stadium Premises; and (xiii) whether or not included in any of the forgoing,
Promotional Rights. Notwithstanding the foregoing, the Revenue Rights shall yt include any
17
a
rights that are owned or held by the Team (e.g., Media Rights to Team games) or another Team
Affiliate.
Section 4,4 'Concessions. The Operator's rights with respect to Concessions Rights
shall extend to all areas of the Stadium Premises (including areas that are open to the general
public from the Stadium remises), and shall include the rights to (a) from time to time select
and contract with one or mre concessionaires (or to itself act as concessionaire) to operate and
be responsible for all Conce� ions operations in the Stadium Premises; (b) administer any such
Concessions agreements; (c) �"etermine the types, brands and marketing of all Concessions sold
in the Stadium Premises, and tlie, prices to be charged for such Concessions; and (d) determine
the location of Concessions facilities within the Stadium Premises,
Section 4.5 Labor Peace, `'To protect the County's interest in ensuring that the Baseball
Stadium Project produces the funds,. necessary for repayment of the costs of indebtedness
incurred in the development and construction of the Baseball Stadium Project, the Operator shall
supply to the County prior to the openiri� of the Baseball Stadium a fully -executed labor peace
agreement between the entity which wr(I operate the Stadium Premises food and Beverage
concessions and any labor organization in t`k}e Miami area that is actively engaged in representing
and attempting to represent Stadium Premise\\ food and Beverage concession workers, The labor
peace agreement must be a valid agreenilt which prohibits the labor organization and its
members from engaging in any picketing, w q rk stoppages, boycotts, or any other economic
interference with the Stadium Premises food an Beverage concessions for at least the first five
years of the operation of the Stadium Premise and must cover Stadium Premises food and
Beverage operations which are conducted by Jesse or tenants or under management agreements
and Service and Use Agreements,
Section 4.6 Signage.
(a) The Operator's rights with respect`t`o Advertising Rights shall include the
exclusive right to construct, operate and display Signa on the interior, exterior or other
portions of the Stadium Premises as the Operator deems 5essary or desirable, in compliance
with Applicable Law, including laws pertaining to public deccy.
(b) Prior to the Substantial Completion Date,, the County and City shall
design, manufacture and install off --site traffic directional signage r the Baseball Stadium with
the number, location, design and content comparable to signage each as installed for other large
entertainment venues in the City. This obligation of the County and ity shall not apply to any
directional signage controlled by the State or the federal government, p' ovided that the County
and City shall assist the Team in its efforts to urge the State and federal � overnment to provide
such signage, The County or City, as applicable, shall maintain, update , d pay all costs for
such County and City controlled signage, except that such Parties shall have n, obligation to pay
any costs associated with a change of the Stadium Name following the Substa tial Completion
Date,
(c) The Stadium Premises shall include mutually agreed upon )Si,nage that
identifies the County both inside and outside the Baseball Stadium, By appr9ying this
18
Agreement, the Board hereby waives the signage requirements set forth in the in the Building
Better Communities General Obligation Bond Program Administrative Rules.
n 4.7 Naming Rights.
\ (a) The Operator shall have, subject to compliance with Applicable Law, the
exclusive rigft to sell, license or otherwise grant Naming Rights for the Term on such terms and
conditions as the Operator shall determine. The Operator must obtain the written approval of the
Stadium Name\from the County Representative, which approval shall not be unreasonably
withheld, condition ed or delayed; provided that approval shall not be required for the name
(including the combonly known name and the parent company name, but excluding any name
associated with tobaco, adult entertainment or guns) of any (i) Fortune 1000 company or any of
its subsidiaries or their,espective products, (ii) bank, (iii) cruise line, (iv) airline or (v) nationally
recognized Beverage cgmpany. When approval is required, the County Representative shall
approve or disapprove d� a proposed Stadium Name within ten (10) Business Days after
receiving a request for ap�roval from the Operator. If the County Representative does not
respond within such ten (10 Business Days, the proposed Stadium Name shall be deemed
approved. The County Repres ntative may disapprove any Stadium Name that is in conflict with
standards of public decency, ine ding association with tobacco or adult entertainment.
(b) Following re eipt by the Government Parties of written notice from the
Operator of the determination of thetadium Name, in accordance with this Section 4.7, or the
name of any portions of the Stadium Pemises, the Government Parties shall use exclusively the
Stadium Name and, as appropriate, thee given to any portion of the Stadium Premises in all
correspondence, communications, advert sing and promotion the Government Parties may
undertake with respect to the Stadium Pre" ses, including in all press releases and in connection
with the promotion of the sale of Admission Tickets to any Community Event. In addition, the
Government Parties shall include the Stadiu Name on all directional or other signage that is
installed by the County or City that refers to o identifies the Stadium Premises. The Operator
shall provide the Government Entities a non-ex,lusive license to use the Stadium Name and
Symbolic Representations for the purposes describ:and
ection 4.7(b), and to promote travel
and tourism and to publicize to its respective co the successful completion of the
construction of the Baseball Stadium Project.
Section 4.8 ScheduIin . Subject to the heduling priority for MLB Home
Games and MLB Jewel Events and Article VI witho Community Events, the Operator
shall have the exclusive right and authority to schedok all Stadium Events.
Section 4.9 Annual Pa ment. In consideration for I e Team's use of the Baseball
Stadium and the rights granted to the Operator under this Agreemn t, the Team shall remit to the
County an annual amount per Operating Year as provided in Secdl n 7 of the Non -Relocation
Agreement. If the Operator elects to extend the Term pursuant to Section 3.2, prior to the start of
each Renewal Term the Operator and the County shall negotiate an . ual amount payable by
the Operator or the Team to the County during such Renewal Term.
Section 4.10 Operating Expenses. Except for Community Eve ,Expenses and as
otherwise expressly provided in this Agreement, the Operator shall be r Sponsible for the
19
payment of all costs and expenses incurred by the Operator in managing and operating the
Stadium Premises, including game -day operations, security on the Baseball Stadium Site (as
provided in Setion 4.16 with respect to Public Safety Personnel), utilities, custodial services,
premiums and ductibles (to the extent required by Articles X and XI) for the Insurance
Policies, and supe 'es and other consumable goods.
Section 4.11 Access Rights, The County hereby grants to, and covenants and agrees to
maintain for, the Opetor, subject only to the access and entry rights expressly reserved for the
County under Article or,
the exclusive right to use and to authorize others to use, and
uninterrupted access for e Team Affiliates and their invitees to and from, the Stadium Premises
on a twenty-four (24) hou er day, year-round basis throughout the Term (the "Access Rights").
The County and City, shall of take any actions that would disturb the Team Affiliates' quiet
enjoyment of the Stadium Pr anises or impede their ability to exercise the Operating Rights, The
County shall not grant, permit or suffer to exist any right, claim or other Lien that materially
interferes (or could reasonably e expected to materially interfere) with the Access Rights, and
shall promptly discharge or termi , ate any such right, claim or lien.
Section 4.12 Administration. The Operator shall have the exclusive right to plan,
coordinate and administer the operatipe of the Stadium Premises, including the coordination of
the efforts of all parties involved in Stadium Premises operations, establishing and maintaining
procedures for payment of operatin� expenses, receipt of revenues, development and
implementation of accounting policies for
he Stadium Premises, and coordination of the work of
any party performing services at the Stadiu , Premises.
Section 4.13 Transact Business. t'
Agreement, the Operator shall have the right t
other Persons, including concessionaires, Affilial
for the performance of the Operator's oblig
Agreement; provided, however, that such co
obligations, duties and responsibilities under this
Withstanding anything to the contrary in this
enter into contracts and transact business with
,s of the Operator, Users and Service Providers,
ons, duties and responsibilities under this
tr cts shall not relieve the Operator of its
6"a eement.
Section 4.14 County and City Acknowledg ent. Notwithstanding anything to the
contrary contained in this Agreement, neither the Operator nor any of its Affiliates,
subcontractors, licensees or delegates shall be required to a) seek or obtain competitive bids or
proposals for, or competitively award, any agreements it en rs into, purchases it makes or other
actions it takes with respect to the management, operation o use of the Stadium Premises, (b)
comply with or follow any County or City selection process , procurement requirements or
similar procedures or requirements contained in the County de, City Code or otherwise,
except that with respect to construction, the Operator and other Te Affiliates, subcontractors,
licensees or delegates shall comply with Applicable Law, including C a ter 255, Florida Statutes
and all of their respective obligations set forth in this Agreement, (c) co ,ly with County or City
employment practices (other than those applicable to employers generally) or any County Code,
City Code or ordinance provisions uniquely governing the management o operation of public
projects, buildings, structures or works, or (d) except in connection wi the Operator's
compliance with Applicable Law, obtain County or City approval of any of its a ,,ions, other than
where specifically provided for in this Agreement.
20
Section 4.15 Utility Rates. The County shall use reasonable best efforts to assist the
Operator to secure utilities for the Stadium Premises at rates comparable to the County's reduced
bulk rates, if any,
Section 4.l6Public Safet�Personnel. The Parties agree to the following terms, which
are hereby incorporat d into this Agreement:
(dl) Police Staffing. To the extent off-duty police staffing is available,
(i) the County PoliceDepartment will provide off-duty police staffing within the Baseball
Stadium Site for all MLB Some Games, MLB Jewel Events and all other Stadium Events having
an expected attendance of r}ore than 5,000 people, and (ii) the City Police Department will
provide off-duty police staf g of all other areas of the Entire Site for MLB Home Games,
MLB Jewel Events and other S dium Events having an expected attendance of more than 5,000
people, all at the Stadium. Opera or's sole expense. The City will also provide off-duty police
staffing to provide police presenc� in the surrounding jurisdictional neighborhoods, streets, etc,
due to increased activity expecQXd ue to MLB Home Games, MLB Jewel Events and other
Stadium Events having an expected afttendance of more than 5,000 people, at Stadium Operator's
sole expense. In the event either th. County or the City Police Department does not have
sufficient off-duty police personnel totaff an event, as described above, then the department
that has additional off-duty police persoel shall fill the positions of the department that does
not have sufficient personnel. If neither lice Department has sufficient personnel to staff an
event, then the City, or the County, as the c se may be, shall have the right to staff the event by
using third party agencies. In the event there are no police off-duty personnel available to staff
an event, the Stadium Operator shall be resp sible for providing security for the event. For
each of the above described events staffed by City and County Policed Departments, a joint
command structure will be established betwee the City and the County to ensure cross-
coordination between the respective Police Depart ents. The Stadium Operator shall pay City
and County police personnel the hourly rates payab e by City or County for such work. When
off-duty police officers are used in the staffing of an event, the Stadium Operator shall pay the
highest of the City or the County hourly rate pay le to such police officers. Stadium
Operator's expense obligation shall be limited to the hou! y rates paid by the City and the County
to the police personnel. For Community Events, the Ci and the County may provide off-duty
police services using their own forces inside and outside t Baseball Stadium Site. Nothing in
this section shall limit the City's Police Department's ju 'sdictional authority to respond to
emergencies or investigate crimes committed anywhere on the Stadium Premises.
(b) Fire Rescue Off -Duty Staffing, The City and the County will
jointly provide at Stadium Operator's sole expense, Fire Re
sc e off-duty staffing within the
Baseball Stadium Site. For each MLB Home Game, MLB Je 1 Event and Stadium Event
having expected attendance of more than 5,000 people, staffing wit in the Baseball Stadium Site
will consist of at least one City and one County Fire Watch unit. ire Rescue units shall be
provided equally from the City and County (one each, two each, etc., epending on the demand
for off-duty fire rescue service). This may consist of first aid stations, r &g firefighters, etc., as
necessary for the event. A joint command structure, with a designee fom each Fire Rescue
Department to act as the lead for each such Stadium Event, will be establ hed. The lead from
each Fire Department will be in charge of cross -coordination of issues betty �n the entities. City
21
protocols and�io systems will be used, with specific details to be formalized in a stadium -
specific protocol jointly written by the City and the County prior to Substantial Completion.
City and County Me rescue personnel will be paid at the hourly rates for off-duty work payable
by City or County, \,whichever is higher, and Stadium Operator's expense obligation shall be
limited to those ho4ly rates. Both the City and the County may elect to use their own Fire
Department within the�Paseball Stadium Site for Community Events.
(c) Police and Fire Rescue staffing levels, hours and locations shall be
determined by the Countyor City Police and Fire Departments, as applicable, in accordance with
Applicable Law after consultation with the Operator.
Section 4.17 Plaza, The Operator shall be responsible for the operation and
maintenance of, and shall have'the right to all revenues from, the Plaza to the same extent as the
other portions of the Stadium `Premises. The Operator shall not construct any permanent
structures in the Plaza that are nd% needed to support its roof or utility systems, except for (a)
structures that are part of restaurant, or retail stores that are included in and ancillary to the uses
of the Baseball Stadium, and extends io more than an aggregate of 10,000 square feet into the
Plaza, and (b) lighting, benches, pav� s, seating, tables, fountains, awnings, bollards, railings,
waste receptacles, statues, bicycle racks, flagpoles, scoreboards and signage. The Plaza shall be
open to the general public during day ' ht hours on a year-round basis; provided that the
Operator may restrict access to certainortions of the Plaza from two (2) hours preceding
through two (2) hours following Stadium Elents, and otherwise as may be reasonably necessary
to maintain the Plaza in a safe, clean and ordely condition.
ARTICLE V
The City may develop a soccer stadium for a Major League Soccer team. If such soccer
stadium will be located within the Entire Site (the "So cer Stadium"), the following provisions
of this Article V shall apply.
Section 5.1 Construction.
(a) The City shall keep the County and the Team Affiliates informed of any
plans it develops or modifies for a Soccer Stadium. The City ay, subject to the provisions of
this Article V, (i) pursue the Soccer Stadium on such terms and editions as it may determine,
(ii) transfer the right to pursue a Soccer Stadium to a third part for such consideration as it
determines, or (iii) joint venture with the Team, or cause a third pa to joint venture with the
Team, to pursue a Soccer Stadium.
(b) The City acknowledges that the success of the `baseball Stadium will
depend on, among other things, the proper coordination of all of the prop ed construction and
uses of the Baseball Stadium and the Soccer Stadium. As such, the Operator and the City have
agreed to coordinate certain scheduling and sponsorship matters with respe t to the Baseball
Stadium and the Soccer Stadium in Section 5.2 below. The City further agrees, d shall require
22
and cause all users ',a d contractors of the Soccer Stadium, to comply with the following
restrictions:
(i) \1 The Soccer Stadium shall be architecturally harmonious with the
Baseball Stadium and the f4rade features of the Soccer Stadium shall have no highly reflective
materials facing the Baseball, Stadium.
(ii) During the construction period for the Baseball Stadium, Parking
Facilities and Public Infrastructure, the Baseball Stadium, Parking Facilities and Public
Infrastructure contractors shall have job site priority over construction of the Soccer Stadium.
The City shall require that any work to be performed in respect of the Soccer Stadium be done
without causing a delay in the coinpletion of the Baseball Stadium by the Targeted Completion
Date and the Public Infrastructure i,y the deadlines specified in the Construction Administration
Agreement. In addition, the City shall not, following the Substantial Completion Date, allow any
substantial or noisy construction adtivity in respect of the Soccer Stadium that materially
interferes with the use of the Baseball '$tadium during the period from two (2) hours before and
one (1) hour after MLB Home Games 6,r MLB Jewel Events, or other Stadium Events with an
expected attendance of 5,000 or more peo��e.
(iii) The following uses shall not be permitted within the Soccer
Stadium: (A) ticket brokerage businesses (ot,er than brokerage services provided by a Team
Affiliate for Major League Baseball games an by the Soccer Team for Major League Soccer
games), (B) retail businesses whose primary busi,ess directly competes with the naming rights
sponsors of the Baseball Stadium at the time the re ail business is established, (C) QSRs, except
for QSRs in the Soccer Stadium operating durin soccer stadium events, (D) portable or
temporary food, or the give-away of food or beveraN(E),
uring the period from three (3) hours
before and one (1) hour after MLB Home Games or MJewel Events, or other Stadium Events
expected to have attendance of at least 5,000 people, e sale of beer in an outdoor bar (beer
garden) within one hour before MLB Home Games or 'B Jewel Events, or other Stadium
Events expected to have attendance of at least 5,000 peo e, (F) the promotion and sale of
baseball branded or themed memorabilia and merchandise by persons other than a Team
Affiliate, and (G) the promotion and sale of soccer brande or themed memorabilia and
merchandise by persons other than the Soccer Team.
(iv) The City shall not permit the constructi of the Soccer Stadium to
commence until after the second anniversary of the Substantial Complet'on Date.
v The Cit shall not permit the use of SocS Stadium that in
() y p � at any
material respect interferes with the operation of the Baseball Stadium or the Tarking Facilities for
MLB Home Games or MLB Jewel Events, or other Stadium Events expected\ o have attendance
of at least 5,000 people.
(vi) The Team or any Team Affiliate and the County sl\all have the
right to review (but not approve) the plans and specifications as well as leases in re ect of any
Soccer Stadium for a reasonable period prior to the construction of such Soccer Stadiu or prior
to the execution of such leases.
23
The City, the County and the Operator agree that the foregoing restrictions shall run with the
Soccer Stadium a id through the Term, or through construction in the case of the first two
sentences of Sectio 5.l (b)(ii). The City, the County and the Operator (if appropriate) shall
record an appropriate legal instrument in the Public Records of Miami -Dade County evidencing
the continuing applica2ity of these restrictions.
Section 5.2
(a) As provided below, MLB Home Games and MLS Home Games will not
be scheduled to take place at t e Baseball Stadium and Soccer Stadium during the same time,
whether or not the games do not commence at the same time. They may, however, be scheduled
on the same day so long as the gar ae time does not interfere with the restrictions for exclusive
use of the Parking Facilities provid4n the City Parking Agreement (i.e., the second game may
not be scheduled to start within four (4),hours after the scheduled end time of the first game).
(b) The scheduling of MkB Home Games and MLB Jewel Events shall have
absolute priority over the scheduling of al\ soccer games and Other Events at the Soccer
Stadium; provided that (i) the Operator shall provide the Soccer Team up to thirteen (13)
Saturday nights during each MLS soccer season\for its MLS Home Games at the Soccer Stadium
and (ii) the Operator shall make reasonable efforNto accommodate any post -season MLS Home
Games that would otherwise conflict with regular �ason MLB Home Games. The priority for
MLB Home Games and MLS Jewel Events shall be on all dates (x) on which MLB Home
Games or MLB Jewel Events have been scheduled �lor rescheduled) or (y) that the Team is
required to reserve for the scheduling of MLB Home qaures (including potential post -season
games) or MLB Jewel Events under MLB Rules and Regi, ations (collectively, "MLB Reserved
Dates"), The Operator or the Team shall notify the Socce \Team and the City in writing of the
MLB Reserved Dates (and the scheduled start times of the MLB Home Games and MLB Jewel
Events) for each Operating Year no later than ten (10) Busines� Days after the Team's schedule
is finalized for that Operating Year. The Soccer Team shall n t schedule any game or other
event or activity at the Soccer Stadium (A) on an MLB Reserved ateNDtes, except at a different time
in compliance with Section 5.1(a) above, or (B) between Marchand November 15 in any
Operating Year for which it has not yet received the MLB Reserved
(c) The scheduling of the Soccer Team's regular se son and playoff MLS
home games at the Soccer Stadium ("MLS Home Games") shall have abklute priority over the
scheduling of Stadium Events other than MLB Home Games and MLB �,ewel Events. Such
priority shall be on all dates (i) on which MLS Home Games have been scheduled (or
rescheduled) or (ii) that the Soccer Team is required to reserve for the schedule. g of MLS Home
Games (including potential playoff games) under MLS rules and regulations, 'n each case in
accordance with the priority for MLB Reserved Dates set forth above (colle tively, "MLS
Reserved Dates"). The Soccer Team shall notify the Operator and the City in iting of the
MLS Reserved Dates (and the scheduled start times of the MLS Home Game for each
Operating Year within 5 Business Days after it receives the MLS Reserved Dates frtln Major
League Soccer. \
24
(d) nce the Team or the Soccer Team is mathematically eliminated from
participation in the pla offs in any Operating Year, its MLB Reserved Date or MLS Reserved
Dates shall no longer inc lade reserved playoff dates for that Operating Year.
(e) If Moor League Baseball shall establish or change the date for an MLB
Home Game or MLB Jewel,. -..Event to an MLS Reserved Date, or to a time that would conflict
with an MLS Home Game, then such date (or time) shall no longer be reserved for the Soccer
Team, and the Operator shall promptly notify the Soccer Team of such change and the Soccer
Team shall reschedule the MLS`,Home Game to a date (or time) that does not conflict with the
MLB Home Game or MLB Jewel Event, The Operator shall cooperate with the MLS Team and
use diligent efforts to minimize the idisruption from such rescheduling.
(f) As between (i) Stadium Events that are not MLB Home Games or MLB
Jewel Events and (ii) events at the Soccer Stadium that are not MLS Home Games ((i) and (ii),
"Other Events"), priority in the use of the Parking Facilities will be determined on the basis of
which Other Event is booked first in accokdance with the following procedures:
(i) The Soccer Team may not reserve the Parking Facilities between
March 15 and November 15 in any` Operating Year until it has received the MLB
Reserved Dates in accordance with Season 5.1(b); and the Operator may not reserve the
Parking Facilities for Other Events be*en April 15 and October 15 in any Operating
Year until it has received the MLS Reserve' Dates in accordance with Section 5.1(c).
(ii) Each of the Operator anq the Soccer Team may reserve the Parking
Facilities for a bona fide Other Event (A) at an time during periods that are not restricted
under paragraph (i) above and (B) at any time ring such restricted periods after it has
received from the other the MLS Reserve Dates a d MLB Reserved Dates, respectively,
provided that such time does not conflict with an MB Home Game, MLB Jewel Event
or MLS Home Game. In order to make such reser�'ion, the Operator or Soccer Team
shall deliver to the other and the City a written notice etting forth (w) a description of
the proposed Other Event, (x) the expected attendance, (y) the proposed start and end
times of the Other Event, as well as the proposed use time of the Parking Facilities, and
(z) any approvals or other conditions that may be required t� hold such Other Event, and
the status of such approvals and conditions. The City shall\only reserve the Parking
Facilities for bona fide Other Events, and at times that do not Mitt with MLB Home
Games, MLB Jewel Events, MLS Home Games or previously reserved Other Events.
(iii) The provisions of this Section 5.2(f) shall d ly apply to Other
Events that are reasonably expected to have an attendance of more an 5,000 people.
Each of the Operator and the Soccer Team may at any time reserve the arking Facilities
in accordance with the City Parking Agreement for Other Events that are reasonably
expected to have attendance of fewer than 5,000 people. N
(iv) Additional provisions with respect to the reservation andsse of the
Parking Facilities are set forth in the City Parking Agreement. Any dispute Nder this
Section 5.2 shall be resolved by Arbitration pursuant to Article XVIII.
25
Section 5.3 Advertising.
(a) Subject to the remaining terms of this Section 5.3, Ambush Advertising
shall be prohibitcd (i) at the Stadium Premises during (and within two hours before and after)
soccer games and ot�er events at the Soccer Stadium expecting to have attendance of at least
5,000 people, and (ii) at the Soccer Stadium premises during (and within two hours before and
after) MLB Home G�mes, MLB Jewel Events or other Stadium Events expecting to have
attendance of at least 5000 people. "Ambush Advertising" means any promotions, contests or
other sponsorship activ4tion activities directed at undercutting the value or impact of a
competitor's advertising gignage or sponsorship at the Soccer Stadium (in the case of Ambush
Advertising from the Stadium Premises) or at the Stadium Premises (in the case of Ambush
Advertising from the Soccer'\5tadium premises).
(b) Exterior Advertising on a Soccer Stadium may not conflict with any
product or service category righ,s granted to any Major Sponsor. Exterior Advertising consists
of Advertising on the Soccer Sta4ium or inside the Soccer Stadium that is visible outside of the
Soccer Stadium. The Operator or''the Team shall notify the Soccer Team of its Major Sponsors
from time to time, and at least onc6 each Operating Year. No advertiser on the exterior of the
Soccer Stadium that competes with a ew Major Sponsor (i.e., a Major Sponsor that enters into
an agreement with a Team Affiliate of Baseball Stadium following the Team's first year in the
Baseball Stadium and following the ekecution of an agreement by such advertiser with the
Soccer Team) shall be required to terminate its agreement early or to remove its competing
advertising until the expiration of the term of its agreement; provided that no such agreement
shall be renewable if it conflicts with a MajQQr sponsor at the time of such renewal. The Major
Sponsor restrictions in this paragraph relating'to exterior signage on the Soccer Stadium shall not
apply to the naming rights sponsor of the Soccer Stadium, except that the Soccer Stadium shall
not be permitted to enter into or renew any naming rights agreement that would conflict with the
Naming Rights of the Baseball Stadium. In ord r to implement the preceding sentence, the
Soccer Stadium may not grant its naming rights �ntil after the Operator has entered into a
Naming Rights Agreement. The Operator represents to the City that it has not entered into a
Naming Rights Agreement. The City represents to the Operator that it has not entered into any
agreement with respect to a Soccer Stadium.
Section 5.4 Soccer Agreement. The City shall ca�se the provisions of this Article V to
be included in any agreement under which it authorizes a �'gccer Team to use or operate the
Soccer Stadium, and shall cause the Soccer Team to comply with,,such provisions.
ARTICLE VI
GOVERNMENT PARTY USE
Section 6.1 Government Party Use of Baseball Stadium.
6.1,1 Community Event Dates. During each Operating Year, the County and
the City shall each have the right to use the public areas of the Stadium Premises (excluding the
Exclusive Areas, other than "party" Suites licensed on an event -by -event basis'and \\retail stores)
as described below ("CommunityEvent Dates"). Each of the County and the C1�ty shall be
Q�
permitted to condubtup to four (4) Community Events during the period from March I through
the last potential We d Series game in each Operating Year. The County and the City shall not
be restricted in the nu of days that each may use the Baseball Stadium for Community
Events during the perio\\ from such last potential World Series game through the following
February 28, except as pr yided below.
6.1.2
(a) The Operator and the Team shall have absolute priority to use, or
permit third parties holding Stadium Events to use, the Stadium Premises on the following dates:
(i) all MLB Reserved Dates; (ii) inqhe case of any other amateur, college or professional sports
team that has committed to play gari�es at the Baseball Stadium (a "Sports User"), all dates that
have been scheduled (or rescheduled)`\�Ibr, or that such Sports User is required to reserve for the
scheduling of, its home games, under ;the applicable rules of its Ieague, conference or other
governing body; (iii) all other dates rAerved for Stadium Events that have previously been
scheduled and are committed to take plac6\at the Stadium Premises; (iv) all dates that have been
included in birds for prospective Stadium Events; (v) a reasonable number of dates that have been
reserved for the attraction of other prospec)jve Stadium Events; and (vi) any dates reasonably
reserved to accommodate set-up and break Gown time for any of the foregoing or reasonably
expected repair of the Stadium Premises (collectively, "Operator Reserved Dates"),
(b) If a Government Patty wishes to reserve a date for a Community
Event (a "Community Reserved Date"), it shall deliver to the Operator a written notice
requesting such date at least thirty (30) days before t e proposed date of the event, but not more
than one hundred eighty (180) days before the propos6 date of the event. Such notice shall set
forth the requested Community Reserved Date(s) andhall identify in reasonable detail the
nature of the event, the areas of the Stadium Premises th overnment Party expects to use, the
terms of admission (including ticket prices payable to a designated charity), the expected
attendance, any special security or other arrangements tha are anticipated, and any other
information reasonably necessary for the Operator to perform R, duties under this Agreement.
Notwithstanding the notice provisions in this paragraph and the perator's rights in paragraph
(c) below, the Operator agrees to work cooperatively with the Count or City, when possible, to
accommodate scheduling of Community Event dates,
(c) The Operator shall have the right to refite to schedule any
proposed Community Event if: (i) the date requested is an Operator Res ed Date; (ii) the
proposed Community Event would violate Section 6.1.1, or 6.1.2(a); (iii) the pr posed usage (w)
involves a sporting or athletic event above the high school level, (x) involves ani, als or motor
vehicles, (y) includes use of the infield unless the use is for a baseball or softball ame, or (z)
would violate MLB Rules and Regulations relating to the public image of a Major\League
Baseball team or the Baseball Stadium; (iv) the Operator reasonably believes the usage pr%ite
ts
an unacceptable risk of damage to the Field or the Stadium Premises, or would interfere we
use, operation or preparation of the Stadium Premises for any MLB Home Game, MLB�l
Event or any other Operator Reserved Date; or (v) the promotional sponsorship connected with
the usage, in the opinion of the Operator, is incompatible with any arrangements with any Major
Sponsor or other exclusive Advertising or promotional arrangements connected with a Team
27
Affiliate or the Baseball Stadium. If the Operator rejects a proposed usage, it shall provide the
requestin \Government Party with a reasonably detailed written explanation within five Business
Days after the Operator's receipt of that Government Party's request for a Community Reserved
Date. If the b,lZerator fails to reject the request with a reasonably detailed written explanation
within such time period, it shall be deemed to have waived its right to reject such proposed
usage. \�
If Major League Baseball shall establish or change the date for an
MLB Home Game orNt B Jewel Event to a Community Reserved Date, or any other league,
conference or governing b A dy shall establish or change the date for a home game of any other
Sports User to a Communit Reserved Date, then such date shall no longer be reserved for the
applicable Government Party, Xnd the Operator shall promptly notify the applicable Government
Party of such change and restJule the Community Event to a date that is not an Operator
Reserved Date, The Operator s 11 cooperate with the applicable Government Party and use
diligent efforts to minimize the dis i \ndate
n from such rescheduling and to assist the Government
Party in rescheduling the cancellemmunity Event. If a Community Event is cancelled
pursuant to this Section 6.1.2(d), ancan reasonably accommodate a re -scheduling of the
Community Event within 60 days, tegovernment Party shall not be liable for Community
Event Expenses incurred by the Operato l\ees
dip to the original date of the Community
Event. Any payments for Community Evmade by the Government Party to the
Operator prior to a scheduled Communitich is cancelled pursuant to this Section
6.1.2(d) shall be credited by the Operator trnment Party and such credit may be used
by the Government Party towards any Coent Expenses incurred with respect to the
re -scheduled Community Event; howeveate can reasonably accommodate a re-
scheduling of the Community Event withihien such payments shall be reimbursed to
the Government Party. \
6.1.3 Community Event Proceeds. The harity that is the beneficiary of a
Community Event shall be entitled to (a) the ticket proceeds et of applicable Taxes, credit card
fees, ticketing agent fees and other related expenses), if any, m such Community Event, and
(b) all proceeds (net of Taxes, credit card fees, enforcement cos , any expenses of or amounts
allocated to the Operator's concessionaires and other related exp e ses) from the sale of Event
Specific Concessions ((a) and (b), collectively, "Communi1y Event Pr ceeds"), in each case after
payment of the Community Event Expenses for such CommunityE ent pursuant to Section
6.1.4.
6.1A Community Event Expenses, The Governmentrequesting a
Community Event shall reimburse the Operator, or cause the Operator to be r\ei bursed, for all
costs and expenses incurred in connection with or attributable to the use of the Sta ium Premises
for a Community Event, including: (a) all costs relating to the set-up and breakwn for the
Community Event; (b) all costs for ticket takers, ushers, security personnel, facility d system
operators, janitorial personnel and other personnel working at the Community Event; Nutility
expenses, additional insurance and post -event clean-up expenses of the Stadium Premis s; (d)
the costs for repairing damage to the Stadium Premises caused on the Community Event Da,or
otherwise arising from the Community Event (except for ordinary wear and tear); and (e) I
yven
costs associated with ticketing for the Community Event (collectively, "Communit
28
Expenses"). Urn request by a Government Party prior to a Community Event, the Operator
will provide the vernment Parry with personnel rates for such Community Event. The
County or the City, �s applicable, will provide and pay for proper Public Safety Personnel with
respect to its Community Events. The Operator shall apply any Community Event Proceeds
received by the OperatQr to the payment of Community Event Expenses for the applicable
Community Event. If `tire Community Event Proceeds received by the Operator from a
Community Event exceed` the Community Event Expenses for that Community Event, the
Operator shall remit the iXcess to the applicable charity as directed by the applicable
Government Party within thirtyX(30) after the Community Event Expenses are determined. If the
Community Event Expenses for\\�a Community Event exceed the Community Event Proceeds
received by the Operator for thai,, Community Event, the applicable Government Party shall
reimburse the Operator for such ex6o Community Event Expenses within thirty (30) days after
notice thereof from the Operator.
6.1.5 Stadium SignaaeX The Government Parties shall not sell, license or
authorize, or permit any of their invitees 1p sell, license or authorize, any Advertising Rights at
any time in or on the Stadium Premises. T4otwithstanding the foregoing, the Government Party
conducting a Community Event shall have t e right, without charge (other than reimbursement
of expenses as set forth in Section 6.1.4), to display within the Baseball Stadium during
Community Events temporary banners, signs a, d similar event-specific materials; provided that
such materials may not contain any sponsor iden % fications that conflict with or otherwise violate
the terms of any then-existing agreement of the 0 rator, any of its Affiliates or any other Sports
User regarding Advertising Rights of a Major Soppnsor, Naming Rights or similar exclusive
sponsorship rights. The Government Parties shall no't nor shall they permit any other Person to,
obscure, mask, alter, cover or obstruct (electronicaA or otherwise) any fixed or permanent
Signage displayed in the Stadium Premises, whether d ring a Community Event or otherwise.
On request by a Government Party from time to time dura � g the Term, the Operator will provide
the Government Party a list of all Major Sponsors and all a vertisers that have similar exclusive
sponsorship rights for the Baseball Stadium,
6.1.6 Community Event Use Agreement. Prior to each Community Event, the
applicable Government Party shall enter into a Use Agreement ith the Operator addressing
matters not covered by this Section 6.1 that are customarily addresse between stadium users and
stadium operators (a "Community Event Use Agreement'). Suc , Community Event Use
Agreement shall be on reasonable terms and conditions, no more res ctive or onerous in any
material respect than those imposed on other Users of the Baseball Stad for similar purposes
and similar expected attendance. Such Community Event Use Agreements\Part
at a minimum,
contain the following provisions:
(a) . an agreement by the applicable Governmentto indemnify,
defend, protect, and hold harmless the Operator Indemnitees from and against any\(7)Bu
osses
of any nature resulting from, arising out of or in connection with the Communir the
use of the Stadium Premises on a Community Event Date;
(b) a requirement that the applicable Government Parbtain
(or cause to be obtained) and provide the Operator with evidence at least sevedress
29
Days prior to any s edu
insurance with respec to
Operator of Users mak'n,
retention amounts), whi
respective Affiliates as an
-d Community Event that it has obtained (or caused to be obtained)
the Community Event comparable to the insurance required by the
comparable use of the Stadium Premises (including deductible and
insurance shall name each of the Operator, the Team and their
.Ldditional insured and loss payee, as appropriate;
(c)
cause its invitees to comply,
the Stadium Premises, incl
operations and broadcasting;
a requirement that the applicable Government Party comply, and
With generally applicable policies established by the Operator for
II ng those regarding crowd control, security, access, building
(d) an a eei
permit any Person to operate any CO&C
time, except that the Government P
perishable hard and soft Concession
particular Community Event and that
do not contain any Advertising or
provided that the Government Party
Operator's concessionaires for all such
-nt by the applicable Government Party not to operate or
3sions operations in or upon the Stadium Premises at any
shall have the right to sell, duplicate and distribute non-
-ms that are specifically and exclusively related to the
e supplied by or on behalf of the Government Party and
hnsor identification ("Event Specific Concessions");
ally use or cause to be. used, on an exclusive basis, the
(e) an agreement
Stadium Premises to the same condition than
(f) deposit or other
Operator of the Community Event Expenses for
the applicable Government Party to return the
,sted prior to the Community Event; and
conditions to ensure payment to the
anity Event.
Any independent promoter or sponsor of a Con%munity Event shall join the applicable
Government Party in executing a Community Event UsAgreement, and shall be bound thereby
to the same extent as the Government Party.
6.1.7 Operator Agreements. Unless otherwise determined by the Operator or
the applicable agreement, all agreements of the Operato and its Affiliates with vendors,
suppliers, sponsors, suiteholders, concessionaires, advertisers, 'cketing agents and other relevant
parties shall remain in effect with respect to all of the Communi , Events and Community Event
Dates, and all revenues from such agreements and otherwise gen aced at the Stadium Premises
in connection with a Community Event (except for Community Eve, t Proceeds) shall be payable
to the Operator. The Operator shall permit charities that sponsor C mmunity Events to utilize
their own Concessions vendors and ticketing agents for those ev nts, provided that such
arrangements do not conflict with any agreements of the Operator or its affiliates, or raise other
reasonable concerns of the Operator.
30
Section 6.' Government Party Access. Nothing contained in this Agreement is
intended to limine right of the Government Parties from exercising a nonproprietary function
(e.g,, building and ire safety inspections, as applicable) to access the Stadium Premises in the
ordinary exercise o their police powers, provided that any such entry shall not unreasonably
interfere with the buiness or operations of the Stadium Premises except in the case of an
emergency.
Section 6.3 Stadium Event Proceeds. As it relates to the use of the Baseball Stadium
each Operating Year for Stadium Events with an attendance of 5,000 or more people and with
respect to which the Operator is paid revenues, other than MLB Home Gaines, MLB Jewel
Events, other baseball or Team -related events, and Community Events, the Parties agree that: (a)
the Operator shall retain the revenues from each of the first ten (10) such Stadium Events in such
Operating Year, and (b) the Operator shall split 50% - 50% with the County the Operator's net
income from such Stadium Events.. eleven (11) and beyond in such Operating Year; and (i) 100%
of the County's half of such net incprne shall be deposited into the Capital Reserve Fund and (ii)
50% of the Operator's half of such rl�t income shall be deposited into the Capital Reserve Fund,
with the Operator retaining the rem ping 50%. Such deposits shall be in addition to the
amounts otherwise payable to the Capi�al Reserve Fund under Article IX. For purposes of this
Section 6.3, a multi -day event or group a f related events (e.g., a multi -day convention or concert
tour) shall be considered a single event. The Operator shall provide the County Representative
an accounting of any and all net income d4osited into the Capital Reserve Fund pursuant to this
Section 6.3 following each Operating Year.
VTI
Section 7.1 Community Benefits. The 0 erator and the Team acknowledge a civic
responsibility to promote and contribute to charitable, educational and community organizations
and other public works in South Florida. The Opera , r shall cause the Team to develop and
deliver a strong and substantial community benefits pack • e that shall include the following:
(a) The Team shall maintain, fund, and `vigorously promote its not-for-profit
Florida Marlins Community Foundation (the "Team Foundation") as well as the Team's own
internal community relations efforts, which collectively are f cused on promoting educational,
athletic, health, social and community service programs with a articular focus on Miami -Dade
County and the City of Miami in addition to other activities for So . th Florida's youth.
(b) The Team shall endeavor to maximize bene`f'ts for (i) youth and other
residents of South Florida, with a particular focus on Miami -Dad County and the City of
Miami, and (ii) rebuilding youth baseball infrastructure through local b' seball-related charitable
organizations and Major League Baseball's various affiliated charital\le organizations and
programs, such as: Major League Baseball Charities, Reviving Baseball in er Cities, Baseball
Tomorrow Fund, Join the Major Leagues @ Your Library, Breaking Barriers, Baseball
Assistance Team, Jackie Robinson Foundation, and Commissioner's Initiative for Kids. In
addition to the Team's efforts to reach the youth and other residents of Miam1- ,ade County and
the City of Miami through its Team Foundation, the Team shall develop along with the City and
31
County aggressive, youth programs that are oriented towards infrastructure, maintenance and
assisting sports-bJe programs and such programs shall establish goals and benchmarks,
(c) The Team shall request and encourage its advertisers and sponsors to
contribute to and support the Team Foundation.
(d) The Team shall request and encourage its players and other Team
personnel to support and,, participate in community activities through personal appearances and
other means, such as financial or other contributions to the Team Foundation or to other
organizations that benefit'.youth and other residents of Miami -Dade County and the City of
Miami as well as other organizations and youth in South Florida. The Team will work with its
players, coaches and senior management to make at least twenty-five (25) personal public
appearances (counting no more than three appearances per event) per year in South Florida in
support of education, youth sports, or other public service activities.
(e) The Team_ shall provide attractive and meaningful programs designed to
keep Major League Baseball gimes affordable for youth and the elderly in South Florida.
During each Operating Year, the 'Team shall (i) provide Affordable Seats, and (ii) distribute at
least ten thousand (10,000) reguldr season individual tickets on a complimentary basis each
Operating Year to appropriate Mian'l-Dade County charities that will make such tickets available
to underprivileged youth accompanied by adult mentors. The amount of such Affordable Seats
and complimentary tickets shall be pri?-rated on a per -game basis to the extent there are fewer
than eighty-one (8 1) regular season MLB Home Games in any Operating Year.
Section 7.2 Local Business Initiatives, In addition to the Team participating in Major
League Baseball's Diverse Business Partners Program, the Operator shall develop along with the
City and the County prior to Substantial �,ompletion an aggressive small business outreach
program that will increase participation durin� the operation of the Baseball Stadium; and such
program shall establish goals and benchmarks. The Operator will take affirmative steps to. (i)
promote the employment of residents of Mi Dade County and the City of Miami in the
Operator's operations, and (ii) afford local, sm2li- nd disadvantaged businesses in Miami -Dade
County and the City of Miami an equal opportunil to compete for business for the supply of
goods and services to the Operator,
Section 7.3 CommuniV Suite. Each MLB sbason, the Operator shall make available
at no charge (other than food, beverage and other variable costs typically paid separately by Suite
licensees, except that the Operator shall provide food a d beverages at no charge to youth
charities) one standard Suite (the "Community Suite") to ea
n'{� regular season MLB Home Game
for public and/or charity use. Each MLB seaso, the County and the City each shall have the
right to designate the public or charity use for the CommunitySS
te for forty (40) regular season
MLB Home Games, and the home opener shall be shared by �ity and County, In the case
of any playoff or World Series MLB Home Game or other ML Jewel Event, the City and
County will have the right to purchase tickets for the Community uite on the same basis as
other Suite licensees are permitted to purchase Suite tickets, Use of ffie Community Suite shall
be subject to the same rules, regulations and restrictions as are applicable to the other Suites, and
the County and City shall execute the Operator's standard form of suite license (but without a
license fee),
32
ARTICLE VIII
OWNERSHIP OF STADIUM, ASSETS
Section 8.1 �` County. Ownership Interest. Legal ownership of and legal title to the
Baseball Stadium Site, after conveyance from the City under the Construction Administration
Agreement, and the Baseball Stadium shall at all times be vested in the County.
Section 8.2 Ownership Of Team Depreciable Assets For Income Tax Purposes, 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 stall 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. Such items shall be al`kocated in accordance with the methodology set forth in Section
5.11 of the Construction Administration Agreement or another methodology selected by the
Operator or Team Affiliate. In the event that the depreciation of the Team Depreciable Assets by
the Operator, the Team or theirAf Bates causes ad valorem taxes to become due, the Operator
(or such other Person) shall pay an resulting ad valorem tax. In the event that the Florida
Department of Revenue does not iss�a favorable opinion regarding the sales tax exemption
program described in Section 5.8 of the construction Administration Agreement, and the failure
to issue a favorable opinion is based solel on the Team Affiliate's right to claim ownership of
Team Depreciable Assets as set forth in th.s Agreement or the other Stadium Agreements, the
County shall not be required to fund the incr se to the Stadium Project Budget solely attributed
to sales taxes paid for construction materials d equipment for the Baseball Stadium that were
expected to be exempt from tax under the maters is procurement program as more fully set forth
in Section 5.8 of the Construction Administratio Agreement. Notwithstanding the foregoing,
any equipment, fixtures, furniture or other personal . roperty added to the Exclusive Areas of the
Stadium Premises by the Operator or the Team at it expense shall remain the property of the
Operator or the Team, as applicable, and the Operator or the Team at its expense may remove
such items of equipment, fixtures, furniture and othe personal property from the Stadium
Premises on or prior to the end of the Team. In no event s, all items funded by the County using
bond proceeds be allocated or reallocated pursuant to Propos d Treasury Regulations § 1.141-6 to
the Stadium Developer, other Team Affiliate or any Person of gr than the County.
Section 8.3 Ownership of Promotional Rights. As be ween the County and the City
on the one hand and the Operator and other Team Affiliates on th other hand, the Operator or
Team Affiliates own all Promotional Rights and all Operating lits exclusively and on a
worldwide basis, including but not limited to the right to exercise a d exploit the Promotional
Rights in any and all media, now known or hereafter invented, andr any and all purposes,
products and services throughout and for all countries and territories of e world. Neither the
County nor the City shall use, sell, assign, commercialize or otherwise e \Base,
e Promotional
Rights without the written permission of the Operator or the Team, why be given or
withheld in the Operator's or Team's absolute discretion. As between the and the City
on the one hand and the Operator, other Team Affiliates or Major League l on the other
hand, all Propriety Indicia are solely and exclusively the property of the r, other Team
33
Affiliates, Major 4ague Baseball or their respective assigns. As between the County and the
City on the one han, and the Operator, other Team Affiliates or Major League Baseball on the
other hand, the cry�t\the
on, use, compilation, collection, arrangement, assembly, display,
promotion, licensing other promotion or exploitation of Proprietary Indicia are rights
exclusively belonging Operator, other Team Affiliates, Major League Baseball or their
respective assigns, as the�Rase may be. Use of the Proprietary Indicia by the County or City is
strictly prohibited without t`ke prior written permission of the Operator or the Team, which may
be given or withheld in theOperator's or Team's absolute discretion. The Operator and/or other
Team Affiliate shall provide vitten notice to the City and/or the County of any violations by the
City or the County of use of PrVrietary Indicia at any time during the Term and shall provide
the City or the County a period otthirty (30) days to cure the violation.
ARTICLE IX
Section 9.1 Maintenance anc
cause to be undertaken and paid for, all
Section 9.2 Capital Improvements.
The Operator shall undertake and pay for, or
ce and Repairs.
(a) The Operator shall promptly make all Emergency Capital Repairs and
Necessary Improvements subject to Section 9.3(d)aand Article XI. The cost of such Emergency
Capital Repairs and Necessary Improvements shall e paid or reimbursed to the Operator from
funds in the Capital Reserve Fund subject to Section "YY
n (d).
(b) The Operator shall be permitted to ake Capital Improvements (other than
Emergency Capital Repairs and Necessary Improvements) as it deems necessary or appropriate;
provided that:
(i) the Capital Improvement ', below the Capital Improvement
Threshold Amount; or
(ii) the Capital Improvement is ab�ve the Capital Improvement
Threshold Amount and has received prior written approval of the County
Representative, which shall not be unreasonably withhe' , conditioned or delayed
(and shall be deemed granted if the County Representati , fails to respond to the
Operator's request for consent within thirty days after the re uest is made).
The cost of such Capital Improvements in (i) and (ii) above shall be borne b, the he Operator and
shall not be deemed an expense eligible for reimbursement from the Capital Reserve Fund,
unless otherwise agreed by the County Representative in writing. The Operator c venants that it
will not divide a Capital Improvement project into more than one project if such div',ion directly
or indirectly results in the circumvention of the requirements of this subsection. \
9M
9.3 Capital Reserve Fund,
\(a) Prior to the Substantial Completion Date, the Parties shall establish an
interest bearink Capital Reserve Fund with a Qualified Trustee and shall agree to the terms of a
trust, escrow 3similar agreement, which agreement shall include, among other things,
men
disburset ' Ledures. All earnings and profits from the investment of the Capital Reserve
Fund shall be fA, the account of the Capital Reserve Fund. The Parties intend the Capital
Reserve Fund to l e an asset of the County designed to protect its ownership interest in the
Baseball Stadium, a�d not an asset of the City, the Operator or any of its Affiliates.
(b) prior to the November 30 following the end of each Operating Year (but
not the last Operating Fear), (i) the City shall deposit $250,000 into the Capital Reserve Fund
and (ii) each of the Cminty and the Operator shall deposit $750,000 into the Capital Reserve
Fund. If the first Operatlg Year starts on a date other than November 1, the amounts to be
deposited after the first Operating Year shall be pro -rated to the extent such year is a partial year.
If State funding contemplated \ under Section 6.10 of the Construction Administration Agreement
is obtained that provides for deposits into the Capital Reserve Fund of at least $2,000,000 per
Operating Year, the City shall n_ t be required to contribute to the Capital Reserve Fund in any
such Operating Year. If such Sta�funding is obtained in an amount less than $2,000,000 in any
Operating Year, the City's Capital eserve Fund contribution in that Operating Year shall be
reduced pro rata. As an example, if $1,000,000 of State funding is received during any
Operating Year, the City's contribution will be reduced by $125,000 to $125,000. If the County
funds a portion of the deductible costs, d any amounts exceeding any applicable sub -limit
under the Property Insurance Policy pursu nt to Section 11.2(c)(ii) that is not reimbursed by a
Government Relief Grant, the Operator shall ontribute such amount, subject to the provisions of
Section 11,2(c), to the Capital Reserve Fund Rn behalf of the County within ninety (90) days
after payment of such amount by the County. Such contributions will relieve the County of its
obligations under this Section 9.3(b) up to the ar o\O nt contributed by the Operator on its behalf.
(c) The Operator may from time oto time withdraw funds from the Capital
Reserve Fund to pay for Necessary Improvements or BTnergency Capital Repairs in accordance
with Section 9.2(a), The Operator shall provide the GoyeTment Representatives a simultaneous
copy of each withdrawal request given to the Qualified Trust ee, together with a description of the
Necessary Improvements or Emergency Capital Repairs beim funded with the withdrawn funds.
Upon request of a Government Representative, the Operato shall provide the Government
Representative with documentation evidencing payment of sulNecessary Improvements or
Emergency Capital Repairs. \
(d) To the extent funds in the Capital Reserve P nd, including any State
funding contemplated under Section 6.10 of the Construction Admi rid,
Agreement (if
received), are not sufficient to fund Necessary Improvements and Emer , ney Capital Repairs,
the responsibility for funding such deficiency shall be as follows: (i) during perating Years 0 to
10, the Operator shall be obligated to fund all such funding requiremen ; and (ii) during
Operating Years 11 to 35 the Parties shall jointly determine funding responsibili 'es of each Party
for such deficiencies.
35
(e) I Upon the end of the Term, any funds remaining in the Capital Reserve
Fund shall be distrib ted to the County to be used by the County to fund Capital Improvements,
At the time of reversi n to the City, any funds remaining in the Capital Reserve Fund shall be
distributed to the City ip be used by the City to fund Capital Improvements,
(f) Notwithstanding the provisions of Sections 9.3(b) and (c), if the Operator
elects to extend the Term pursuant to Section 3.2, prior to the start of each Renewal Term the
Parties shall negotiate the amount of their annual contributions to the Capital Reserve Fund
during such Renewal Term
Section 9.4 Title td, Additions. All alterations, improvements, changes and additions
made to or with respect to the 'Stadium Premises in accordance with this Article IX shall remain
upon and be deemed to constitut�a part of the Stadium Premises, and the County shall have legal
ownership of and legal title to all, such alterations, improvements, charges and additions, Any
such alterations, improvements, hanges and additions, to the extent constituting Team
Depreciable Assets, shall be owned income Tax purposes by the Operator or such other Team
Affiliate. Notwithstanding the legal o , ership of any Team Depreciable Assets, the Operator or
another Team Affiliate, by virtue of its wnership, operation or license pursuant to the Stadium
Agreements of such items, shall retain thy` sole beneficial and depreciable interest for income
Tax purposes (to the extent of its investment) in all such items, and for all income Tax purposes
neither the County, the City nor any other\* ,rson shall have the right to take depreciation
deductions with respect to such items, or clai iany other right to income Tax benefits arising
from such items, such rights being exclusively `r,eserved to the Operator or such other Team
Affiliate (to the extent of its investment) unless as�'gned by the Operator or Team Affiliate, in
whole or in part, to one or more third parties. Notchstanding the foregoing, any equipment,
fixtures, furniture or other personal property added o the Exclusive Areas of the Stadium
Premises by the Operator or the Team at its expense sh `l,remain the property of the Operator or
the Team, as applicable, and the Operator or the Team at %rs
expense may remove such items of
equipment, fixtures, furniture and other personal property lrithe Stadium Premises on or prior
to the end of the Term,
Section 9.5 Annual Reports.
(1) Thirty (30) days prior to the end of each Operd ing Year, the Operator will
provide the County Representative and the City Representative an A ual Report regarding the
Capital Reserve Fund. This report will include, at a minimum, the follo ing information:
a. A budget showing the balance of the Capital Neserve Fund,
including details of capital projects conducted during the prior Oprating Year, costs
and descriptions of prior year improvements by category (Emei n Repairs or
Necessary Improvements);
b. A list of anticipated Necessary Improvements, inclu , ing estimated
costs, description, and reason for the projects to be conducted in the upcing
Operating Year; also to include whether an item is being considered to bNoased and
paid for from the Capital Reserve Fund; \
KL
c. A section detailing Maintenance and Repair work conducted and
planned to be onducted on HVAC, plumbing, mechanical, electrical and structural
systems of the adium Premises;
d. �A list, for informational purposes only, of anticipated Capital
Improvements that r e not Necessary Improvements or Emergency Capital Repairs
not funded from the apital Reserve Fund and that are below the Capital
Improvement Thresh id Amount;
e. A lit of anticipated Capital Improvements that are not Necessary
Improvements or Emergency Capital Repairs above the Capital Improvement
Threshold Amount.
(2) Within (3 0) `days of receipt of the Annual Report, the
Operator/County/City Representatives rill collaboratively review the aforementioned Annual
Report, taking into consideration the following;
a. Balance of t e Capital Reserve Fund relative to the estimated cost
of the planned Necessary Impro `ements for the upcoming year;
b. Balance of the�Capital Reserve Fund relative to estimated costs to
replace systems/components that ay be nearing their economic life and due for
replacement;
C. Projected uses ofVie Capital Reserve Fund.
(3) The Operator, in consultatNilat
with the County Representative and the City
Representative, shall prepare a budget for the CaReserve Bund for the upcoming Operating
Year (the "Annual Capital Reserve Fund Budget"). The Annual Capital Reserve Fund Budget
and Necessary Improvements planned by the Operat ; shall be subject to approval of the County
Representative and the City Representative, which shalnot be unreasonably withheld,
conditioned or delayed. The Major Necessary Improve encs are generally intended to be made
in accordance with this Agreement. The Parties recogniz that the Necessary Improvements
must be made in time and in a manner as to maintain the S dium Premises to the standards of
service and quality generally accepted within the Major Lea ue Baseball professional ballpark
industry. The County Representative's approval of the Annu I Capital Reserve Fund Budget
shall not be deemed approval of any Capital Improvements(ot er than Emergency Capital
Repairs and Necessary Improvements) the cost of which is abov the Capital Improvement
Threshold Amount. The approval or disapproval of such Capital provements shall be given as
set forth in Section 9.2, whether as part of the Annual Capital Rese e Fund Budget review
process (with any discretionary improvements above the Capital ImplVvement Threshold
Amount separately identified for approval) or at another time arising d frog the year.
(4) Notwithstanding the foregoing, the City Represent Live shall only receive
information, participate in the processes, and have approval rights under is Section 9.5 while
the City is contributing to the Capital Reserve Fund under Section 9.3(b).
37
Section 10.1 Insuanc
and thereafter at all times
maintain the following insu
Sections 10.2 and 10.3 and a
Florida insurance market:
ARTICLE X
INSURANCE
e Requirements. Beginning on the Substantial Completion Date,
uring the Term, the Operator shall, at its sole cost and expense,
pce policies (the "Insurance Policies"), in each case subject to
t 1pels that are commercially and reasonably available in the South
(a) Commercial General Liabilit . Commercial general liability insurance
against claims arising out of bodily njury, death or property damage arising out of the operations
of the Stadium Premises under this Agreement (including coverage for Certified Acts of
Terrorism as defined by and mauve available by the Terrorism Risk Insurance Program
Reauthorization Act (TRIPRA)) contajning standard form provisions, written on an occurrence
basis, with a combined single limi0`for each occurrence of not less than $1,000,000 per
occurrence and $2,000,000 in the annual,policy aggregate.
(b) Property Insurance. Property insurance (the "Property Insurance Policy")
on an all risk basis (including coverage fo Certified Acts of Terrorism as defined by and made
available by the Terrorism Risk Insuranc6. Program Reauthorization Act (TRIPRA)) for the
Baseball Stadium and all improvements at antime situated upon or forming part of the Baseball
Stadium with overall coverage limits on a rep acement cost basis and sub -limits in amounts that
are customary, as established using an appro iate industry standard probable maximum loss
analysis (as long as the sub -limits are comm cially and reasonably available in the South
Florida insurance market).
The property insurance shall name the County and tl�� Operator as named insured and the City as
additional insured to the extent of its interest. As Ion�g\\as the policy contemplated under this sub-
section (b) provides coverage under a single policy fo\(i) the Baseball Stadium and all related
improvements, (ii) the Operator and Team contents, an (iii) for business interruption and extra
expenses, it is understood and agreed that notwithstand\ng anything contained herein to the
contrary, and unless otherwise agreed upon between the Parties, that in the event of a claim
hereunder which involves more than one interest and/or verage and/or peril, the order of
payment under this policy for loss at the Baseball Stadium sh 11 be made as follows: (1) first to
Miami -Dade County real property, (2) second to personal roperty, (3) third, to business
interruption and extra expenses. The property insurance to be maintained under this
subparagraph (b) shall include coverage for the Operator's parking revenue under the terms of
Section VI of the Parking Agreement that would be lost as a result a casualty to the Parking
Facilities. \
(c) Workers' Compensation. Workers' compensation�'nsuxance or a qualified
self insured program complying with the statutory requirements of thT State and including
employers liability insurance coverage.
38
(d) Umbrella. Umbrella liability coverage on a comprehensive basis and in an
amount no less than $10,000,000 combined single limit in excess of the commercial general
liability, employer's lia�ility and automobile liability limits as described in this Section 10.1.
(e) Au mobile, Automobile liability coverage covering owned, non -owned,
leased or hired automobiles sed by the Operator in the performance of its obligations under this
Agreement in an amount no 1 ss than $1,000,000 combined single limit.
The commercial general liabilitX and umbrella policies shall name the Operator, the Team and
applicable Team Affiliates as th named insureds, and shall include the County and City as
additional insureds as their interestspay appear in connection with this Agreement,
Section 10.2 Master Policv; MLB Polici
(a) Any one or moi' of the types of insurance coverages required under
Section 10.1 may be maintained throug�i a master policy insuring other entities (such as any
Affiliate of the Team or the Operator),rovided that such blanket or master policy and the
coverage effected thereby comply with allr. plicable requirements of this Agreement.
(b) Any one or more of\N he types of insurance coverages required under
Section 10.1 may be maintained through a poly made available to the MLB clubs generally.
Section 10.3
(a) Each Operating Year durinthe Term, the Operator shall provide the
Government Representatives with certificates of ins anee covering the Insurance Policies and
providing the limits and sub -limits of each such polic\Insurance
perator shall also provide a copy
of the policies to the County within 30 days of its rm the carrier. The County shall
submit a copy of the Property Insurance Policy to thnce Commissioner or other
relevant state emergency management agency (or othriate FEMA -related state agency)
(the "State Insurance Agency") each year to seek confhat the Property Insurance Policy
for the Baseball Stadium qualifies as reasonable. If tnsurance Agency determines that
the Property Insurance Policy is not reasonable, the Counysal promptly notify the Operator in
writing. The County may seek a determination from the arbitra or pursuant to Article XVIII as
to whether the Property Insurance Policy complies with the requirents of this Article X. If the
s
arbitrator determines that the limits purchased do not meet the dard of commercially and
reasonably available in the South Florida insurance market, the O� rator shall be required to
immediately purchase additional coverage to meet that standard. The suranee Policies shall be
obtained from financially sound insurance companies rated not less t A- and a minimum
Class VII financial size category as listed by A.M. Best & Company (or ny equivalent rating
agency approved by the County Risk Management Division, which ap rovaI shall not be
unreasonably withheld) and authorized to do business in the State. The Ope for shall provide
the County Representative written notice of any material changes to the In urance Policies
within thirty (30) days prior to the date such change becomes effective, if practicable, but in no
instance later than the date such changes become effective.
39
(b) No withstanding anything to the contrary in this Agreement, the Operator
shall not be obligated to rry insurance for matters customarily subject to exclusions by the
insurance industry.
(c) Any dispute arising under this Article X shall be resolved by Arbitration
pursuant to Article XVIII. \
Section 10.4 Proceeds def Insurance, Without limiting the Operator's obligations under
Article IX with respect to Mainte ante and Repairs or under Article XI with respect to Casualty
Repair Work, in accordance with\t e order of payment set forth in Section 11.2, any and all
insurance proceeds paid under the 'Property Insurance Policy that do not constitute Property
Insurance Proceeds (e.g., proceeds �pr business interruption or other business loss) shall be
payable to the Operator or another Tear". Affiliate.
.TY
Section 11.1 Damage or Destruction\ If at any time after the Substantial Completion
Date, all or any part of the Stadium Premises shall be damaged or destroyed by a casualty of any
nature (a "Casualty"), the Operator shall (i) pro ptly secure the area that has been damaged or
destroyed to safeguard against injury to Persons r property, and (ii) subject to Sections 11.2,
11.3 and 11.4, to the extent Applicable Laws permit repair, restore, replace and/or rebuild (such
work being "Casualty Repair Work") the StadiuPremises as nearly as practicable to a
condition that is at least substantially equivalent to tha existing immediately before the Casualty,
with such changes and alterations thereto as the perator shall request and the County
Representative and City Representative shall approve, whJch approval shall not be unreasonably
withheld, conditioned or delayed. The Casualty Repair W k shall commence not later than one
hundred eighty (18 0) days after the Casualty occurs, which sme shall be extended (provided the
Operator is proceeding with reasonable diligence to comme , ce the work) by such reasonable
time as is commensurate with any delays due to adjustment f insurance, proceedings under
Section 11.2(c), preparation of any necessary plans and specs ications, bidding of contracts,
obtaining of all required approvals and events of Force Majeure. The Casualty Repair Work
shall be performed in accordance with Applicable Law.
Section 11.2 Insurance Proceeds.
(a) Requirements for Disbursement. If Property Insur ce Proceeds paid with
respect to a Casualty are less than or equal to Two Million Five Hundr d Thousand Dollars
($2,500,000), such proceeds shall be paid and delivered to the Operator. E ept as provided in
Sections 11.2(b), 11.2(c), 11.3 and 11.4, such Property Insurance Proceeds sh 11 be held by the
Operator in a segregated account for the purpose of paying the cost of the Casua ty Repair Work
and applied to the payment of the costs of the Casualty Repair Work from time o time as the
Casualty Repair Work progresses. If the Property Insurance Proceeds from a asualty are
greater than Two Million Five Hundred Thousand Dollars ($2,500,000), such proce qs shall be
escrowed in an interest bearing account with a financial institution or other party selec , d by the
Operator and reasonably satisfactory to the County ("Insurance Escrow Agent") pursua t to an
insurance escrow ag;,eement in form and substance reasonably satisfactory to the Operator and
the County (the "Ins ranee Escrow Agreement"), The Insurance Escrow Agreement shall,
except as set forth in Sections 11,2(b), 11,2(c), 11.3 and 11.4, in all events provide for
disbursement of the Pro erty Insurance Proceeds in accordance with the provisions of this
Article XI, including that the Insurance Escrow Agent shall disburse all Property Insurance
Proceeds available for Cas- 1ty Repair Work to such third -party contractors and consultants as
the Operator may direct as the�Casualty Repair Work proceeds.
(b) Disbursements of Excess Proceeds. If the Property Insurance Proceeds
exceed the entire cost of the Cash lty Repair Work and the insurers have waived their rights to
recover such excess proceeds, the amount of any excess proceeds shall first be paid to the
Operator and the County, pro rata, to the extent it funded any deductible amount, and then
deposited into the Capital Reserve Fu �.
(c) Uninsured Losses;
(i) Subject top agraphs (ii) and (iii) below, the Operator shall be
responsible to fund all deductibles and amo is exceeding any sub -limits due under the Property
Insurance Policy for all Casualty RepairWork as follows: (a) the first $5 million of the
deductible and/or sub -limit excess shall be fund d by the operator; (b) if there is still a shortfall
the Operator shall be entitled to use any funds en on deposit in the Capital Reserve Fund to
fund deductible and pay Casualty Expenses; and ( if there is still a shortfall, the Operator shall
fund an additional amount up to the amount of th deductible and/or sub -limit excess, not to
exceed $5 million. The $5 million amounts referenc in this paragraph shall be increased each
calendar year, commencing with the first full Galen year after the Substantial Completion
Date, by the percentage increase in the Consumer Pric Index for All Urban Consumers in the
Miami area.
(ii) Notwithstanding paragraph (i) bove, if the County has been able
to obtain confirmation from the State Insurance Agency th t the Property Insurance Policy
coverage is reasonable, the County agrees to be responsible\thi
he deductible costs, and any
amounts exceeding any applicable sub -limit (if one exists), any claim made under the
Property Insurance Policy for a named storm during the term of\Agreement.
(iii) Notwithstanding anything to the contr in this Agreement, if the
costs and expenses of the Casualty Repair Work ("Casualty ExpenseN) exceed the amount of
Property Insurance Proceeds received by the Operator for Casualty Rep it Work under Section
11.2(a), the amount of any Government Relief Grants received by the Cou ty under Section 11.3
for Casualty Repair Work, the amount of up to $10 million (subject to CPI i crease) to be funded
by the Operator for deductibles and sub -limit excesses as provided in paragra h (i) above, and, if
applicable, all amounts then on deposit in the Capital Reserve Fun (the "Insurance
Deficiency"), the Operator shall have no obligation to fund the Insurance Del, ieno' In such
event, the Parties shall make a good faith effort to identify funding sources fo the In
Deficiency. If the Parties are unable to identify such funding sources, the Operat , the County
and the City may jointly elect to terminate this Agreement and the other Stadium greements.
Upon any termination of this Agreement under this Section 11.2(c)(iii), the provision of Section
11.4(b) and Section 17.5.4 shall apply. If the Team Affiliates are unable to use the Baseball
41
Stadium for more thn one (1) year due to a Casualty, the Operator's obligations under this
Agreement shall be ab ted until they are once again able to use the Baseball Stadium, provided
that (A) the Operators all not have such abatement right if the Casualty is due to a breach by the
Operator of this Agreent or the negligence of the Operator or the Team, and (B) the
Operator's obligation to make contributions to the Capital Reserve Fund under Section 9.3(b)
shall only be abated if theearn Affiliates are unable to use the Baseball Stadium for more than
two (2) years, in which cas the Operator shall remain obligated to make its contributions to the
Capital Reserve Fund during, e two (2) year period from the date of the Casualty (i,e., a total of
$1,500,000). Notwithstanding he foregoing, the Team's obligation to remit the annual payment
in accordance with Section 4. of this Agreement and Section 7 of the Non -Relocation
Agreement shall not be abated pu uant to the preceding sentence.
Section 11.3 Government Relief Grants. In the event of a Casualty resulting from a
named storm, terrorist act or otherccurrence eligible for a Government Relief Grant, the
County and the City shall work in g od faith with the Operator to apply for all appropriate
Government Relief Grants with respec to such Casualty, and shall use reasonable efforts to
obtain the largest amount of such grants ithout jeopardizing the ability to obtain funding for
essential projects affecting public health an safety. Any such grants must be applied to fund the
repair or replacement as specifically outli ed in the specifically applicable award of the
Government Relief Grant to the extent they provide funds for Casualty Repair Work,
Section 11.4 Option to Terminate.
(a) Substantial Damage or Destru tion. If any Casualty with respect to which
the Operator would have to pay a deductible amours of more than $3,000,000 (increased each
calendar year, commencing with the first full calend year after the Substantial Completion
Date, by the percentage increase in the Consumer PriceIndex for All Urban Consumers in the
Miami area) shall occur during the last three (3) Operati Years of the initial Term or during
any Renewal Term, the Operator shall have the right to to inate this Agreement and all other
Stadium Agreements. If the Operator wishes to exercise its 'ght of termination pursuant to the
preceding sentence, it shall do so by notice given to the Gov nment Parties not later than one
hundred eighty (180) days after receipt of a determination un er Section 11.4(c). Upon the
service of a notice of termination due to Casualty under this Se ' n 11.4(a), the provisions of
Section 11,4(b) and Section 17.5.4 shall apply.
(b) Application of Proceeds. In the event that thi Agreement is terminated
pursuant to the provisions of Section 11,2(c) or 11.4(a), the Property In rance Proceeds, if any,
payable under the Property Insurance Policy for Casualty Repair Work in\es
ect of the damage
or destruction shall (i) first be used to pay, at the option of the County, emolition costs of
any remaining improvements on the Baseball Stadium Site and the costs ooring theSite to a
clean, unimproved condition or the costs of initially securing and prese g the Stadium
Premises, in light of its then existing state, in a manner such that the Site is in a condition
comparable to its condition on the Acceptance Date; and (ii) any remaining funds a, er paying (i)
shall be payable to the Parties in proportion to their Funding Ratios. Any Gove ent Relief
Grants must be utilized for the purposes for which they were obtained.
42
Section 11.5 Survival. The provisions contained in Section 11.4(b) shall survive
expiration or earlier termination of this Agreement, but only insofar as such provisions relate to
any Casualty that occurred prior to the expiration or earlier termination of this Agreement.
ARTICLE XII
EMINENT DOMAIN
Section 12.1 Total Taking. If, at any time during the Term, title to the whole or any
portion of the Baseball adany other improvements constructed on the Baseball Stadium
Site is taken in any Condemnation Action (or conveyed in lieu of any such Condemnation
Action) then to the extent\\kuch Condemnation Action or conveyance results in an Unusable
Condition and the affected Alea of the Stadium Premises can not be or are not fully restored
within 12 months of the date of the Condemnation Action (a "Total Taking"), the Operator shall
have the right to (i) terminate is Agreement by giving written notice to .the County and the
City, or (ii) elect to use the Condc ation Award to replace or restore the Baseball Stadium or
any other improvements construct on the Baseball Stadium Site. If the Operator elects to
replace or restore the Baseball StaZl or any other improvements constructed on the Baseball
Stadium Site, then the full amount ofny Condemnation Award shall be paid to Operator to be
used to pay for the costs and expense associated with the replacement or restoration of the
Baseball Stadium or any other improve ents constructed on the Baseball Stadium Site. If the
Condemnation Award is not sufficient to pay the costs and expenses related to such replacement
or restoration, the Parties shall pay such de iciency in proportion to their Funding Ratios. The
Government Parties shall have the right to re 'ew all construction plans for such restoration work
and to participate in the design and construe on process to the same extent and in the same
manner as the Government Parties had under the Construction Administration Agreement for the
original construction of the Baseball Stadium..
Section 12.2 Partial or Temporary Taking. \In the event of a Condemnation Action that
does not constitute a Total Taking under Section 12.1\\(a "Partial Taking") or any Condemnation
Action that results in a temporary taking of the use o y portion of the Baseball Stadium or
any other improvements constructed on the Baseball S dium Site or the Operating Rights (a
"Temporary Taking"), the Term shall not be reduced or "ected in any way, and the Operator
shall promptly commence and diligently proceed to repai , alter and restore the part of the
Baseball Stadium or any other improvements constructed on t e Baseball Stadium Site not taken
to substantially its former condition. The Government Parties hall have the right to review all
construction plans for such restoration work and to participate Nin the design and construction
process to the same extent and in the same manner as the Gove ent Parties had under the
Construction Administration Agreement for the original constructi of the Baseball Stadium.
The full amount of any Condemnation Award shall be paid to Operat to be used to pay for the
costs and expenses associated with the restoration of the Baseball tadium or any other
improvements constructed on the Baseball Stadium Site. If the Cond ation Award is not
sufficient to pay such costs and expenses, the Operator may elect to (a) ter inate this Agreement
or (b) have the Parties shall pay such deficiency in proportion to their Fundin , ,Ratios,
43
Section 12.3 Condemnation Proceedings and Awards.
(a) Upon the commencement of any Condemnation Action under Section 12,1
or 12.2 above, (i),the Government Parties shall undertake all commercially reasonable efforts to
defend against, an6 aximize the Condemnation Award from, any such Condemnation Action,
(ii) the Governmentrties shall not accept or agree to any Condemnation Award of conveyance
in lieu of any Conde'"ti Action without the prior consent of the Operator, which consent
shall not be unreasonabl withheld, and (iii) the Parties shall cooperate with each other in any
such Condemnation Action nd provide each other with such information and assistance as each
shall reasonably request in connection with such Condemnation Action. The Parties
acknowledge that the Operat , g Rights are valuable contract rights, the Operator has a
reasonable expectation to enjoy uch rights during the Term, and the Operator and other Team
Affiliates have the right to assert ny claim for any damages arising from any Condemnation
Action to which the Team Affiliatc may be entitled under Applicable Law. If the Operator or
other Team Affiliates are determine not to have standing to assert any claim for damages it
would make under this Article XII, th n, to the extent such damages may be awarded to the
Government Parties, the Government P ies shall assert any reasonable claims for such damages
and provide a portion of any awardedmages to the Operator or other Team Affiliates in
�
accordance with this Article XII. \
(b) If, as permitted under S ction 12. 1, the Operator elects not to restore the
Stadium Premises or any other improvements c nstructed on the Baseball Stadium Site or if the
cost and expense of restoration of the Stadium P �mises or any other improvements constructed
on the Baseball Stadium Site is less than the anl,unt of the Condemnation Award, then the
Parties agree to distribute any such remaining Co demnation Award between the Parties in
proportion to the Party's Funding Ratios.
(c) The rights and remedies provided 'n this Article XII shall be cumulative
and shall not preclude any Party from asserting any othe right, or seeking any other remedies
against the other party as may be permitted under ApplicablLaw.
ARTICLE XIII
INDEN
MNIFICATIO
Section 13.1 Indemnification by Operator.
(a) The Operator shall indemnify, defend and hold Armless each Government
Party and its officers, employees, attorneys, agents and instru entalities (collectively,
"Government Indemnitees") from any and all liability, losses or damag , including attorneys'
fees and costs of defense (collectively, "Losses'), which the Government I demnitees may incur
as a result of claims, demands, suits, causes of action or proceedings of any 'd or nature arising
out of, relating to or resulting from the performance of this Agreement b the Operator, its
Affiliates or its employees, agents, servants, principals or subcontractors. Thes,
shall pay
all Losses in connection therewith and shall investigate and defend all claims, su' s or actions of
any kind or nature in the name of the Government Indemnitees, where applica le, including
appellate proceedings, and shall pay all costs, judgments and attorneys' fees whic may issue
44
thereon, The Operator expressly understands and agrees that, subject to Section 13.4, any
insurance protection equired by this Agreement or otherwise provided by the Operator shall in
no way limit the respo sibility to indemnify, keep and save harmless and defend the Government
Indemnitees as herein -o vided.
(b) Notwithstanding the provisions of Section 13.1(a), the Operator shall be
required to defend but shad, not be required to indemnify for any Losses arising from or in
connection with: \
(i) any injury to or death of a Person or any damage to property
(including loss of use) to the exten caused by the negligence or willful act of any Government
Indemnitee or their respective repres tatives or contractors;
(ii) any viola ion by a Government Party of any provision of this
Agreement, any other Stadium AgreemeGyernment
or any Applicable Law or insurance policies now or
hereafter in effect and applicable to such Party;
(iii) any Challenge
terms set forth in this Agreement) and any C
forth in the applicable license agreement); or
Section 13.2
shall be addressed in accordance with the
ty Event (which indemnification shall be set
(iii) any Loss arising from oXrelating to a Force Majeure.
13.2.1 City Indemnification. The City does`l�ereby agree to indemnify and hold
harmless the Operator and the Team (collectively, "O eratox Indemnitees") to the extent and
within the limitations of Section 768.28 Fla. Stat., and subjec to the provisions of that Statute
whereby the City shall not be held liable to pay a personal inju or property damage claim or
judgment by any one person which exceeds the sum set forth in aid statute, or any claim or
judgments of portions thereof, which, when totaled with all other o \dh
es, exceeds the sum
set forth in said statute, from any and all personal injury or propertye claims, liabilities,
losses and causes of action arising from the same claim which may aly as a result of the
negligence of the City in connection with its rights and obligatier this Agreement.
However, nothing herein shall be deemed to indemnify the Operatory liability or claim
arising out of the negligent performance or failure of performant e Operator or its
employees, agents, servants, partners, principals or subcontractorse eam, the Team
Affiliates, or any unrelated third party. The Operator expressly nd nd agree that,
subject to Section 13.4, any insurance protection required by thiement or otherwise
provided by the City shall in no way limit the responsibility to ify, kee and save
harmless and defend the Operator Indemnitees as herein provided.
13.2.2 County Indemnification. The County does hereby agree to indemnify� and
hold harmless the Operator Indemnitees to the extent and within the limitations of Se ion
768,28 Fla. Stat., and subject to the provisions of that Statute whereby the County shall not\\t�e
held liable to pay a personal injury or property damage claim or judgment by any one perso ,
which exceeds the sum set forth in said statute, or any claim or judgments of portions thereof,
45
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 thi Operator from any liability or claim arising out of the negligent
performance or failure of Performance of the Operator or its employees, agents, servants,
partners, principals or subcontractors, or the Team, the Team Affiliates, or any unrelated third
party. The Operator expressl understand and agree that, subject to Section 13.4, any insurance
protection required by this Agement or otherwise provided by the County shall in no way limit
the responsibility to indemnify, keep and save harmless and defend the Operator Indemnitees as
herein provided.
13.2.3 Notwithstanding the provisions of Section 13.2, the Government Parties
shall not be liable for any Losses aAong from or in connection with:
(i) any inj ry to or death of a Person or any damage to property
(including loss of use) to the extent catresentatives
d by the negligence or willful act of any Operator or its
Affiliates, Users or Service Providers, or contractors;
(ii) any violation by the Operator, its Affiliates, Users or Service
Providers of any provisions of this Agreement, any other Stadium Agreement or any Applicable
Law or insurance policies now or hereafter effect and applicable to the Operator;
(iii) any other in
Service Providers is obligated to provide
Stadium Agreement; or
(iv) any Loss arising
for which the Operator, its Affiliates, Users or
mnification under this Agreement or any other
or relating to a Force Majeure,
13.2.4 Nothing in this Article XIII s`1}all limit the Operator's right to damages or
other available legal remedies upon a breach of this AlBement by a Government Party.
Section 13.3 Indemnification Procedures.
(a) If any Person entitled to indemnifii�,ation pursuant to this Article XIII (an
"Indemnified Party") shall discover or have actual notice a facts that have given rise, or which
may give rise, to a claim for indemnification under this AA'cle XIII, or shall receive notice of
any action or proceeding of any matter for which indemm lcation may be claimed (each, a
"Claim"), the Indemnified Party shall, within twenty (20) day following service of process or
other written notification of such claim (or within such shorter t e as may be necessary to give
the Person obligated to indemnify the Indemnified Party (th "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 gether with a statement of
such information respecting such matter as the Indemnified Party the has; provided, however,
the failure to notify the Indemnitor shall not relieve the Indemnitor fr in any liability which it
may have to the Indemnified Party except and solely to the extent that uch failure or delay in
46
notification shall have adversely affected the Indemnitor's ability to defend against, settle or
satisfy any su�ch Claim.
(b) The Indemnitor shall be entitled, at its cost and expense, to contest or
defend any such laim by all appropriate legal proceedings through attorneys of its own
choosing, provided t \11ndemmtor shall have first notified the Indemnified Party of its intention
to do so within twentdays after its receipt of such notice from the Indemnified Party. If
within twenty (20) dawing such notice from the Indemnified Party, the Indemnified Party
has not received noticthe Indemnitor that such claim will be contested or defended by the
Indemnitor, the Indemniearty shall have the right to (i) authorize attorneys satisfactory to it
to represent it in connection th ewith and/or (ii) subject to the approval of the Indemnitor, which
approval shall not be unreasona y withheld or delayed, at any time settle, compromise or pay
such Claim, in either of which ev is the Indemnified Party shall be entitled to indemnification
thereof as provided in this Article III. These provisions in no way prevent the Indemnified
Party from taking whatever actions ar ecessary to defend the Claim during the time before the
Indemnified Party learns whether the In, emnitor will contest or defend the Claim. Attorneys'
fees and costs accrued by the Indemnified )'arty during this time are indemnifiable. If required
by the Indemnitor, the Indemnified Partyall cooperate fully with the Indemnitor and its
attorneys in contesting or defending any ch Claim or, if appropriate, in making any
counterclaim or cross complaint against the Pergn asserting the Claim against the Indemnified
Party, but the Indemnitor will reimburse the In&. ified Party for any expenses reasonably
incurred by the Indemnified Party in so cooperating.
(c) The Indemnitor shall pay to the I demnified Party in cash all amounts to
which the Indemnified Party may become entitled by re on of the provisions of this Article
XIII, such payment to be made within thirty (30) days afteruch amounts are finally determined
either by mutual agreement or by judgment of a c urt of competent jurisdiction.
Notwithstanding that the Indemnitor is actively conducting a , efense or contest of any Claim
against an Indemnified Party, such Claim may be settled, mpromised or paid by the
Indemnified Party without the consent of the Indemnitor; provided owever that if such action is
taken without the Indemnitor's consent, its indemnification obligatio s 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 Clai\adve
defended by the
Indemnitor without the Indemnified Party's consent so long as such snt or compromise
does not cause the Indemnified Party to incur any present or futurel costs, expense,
obligation or liability of any kind or nature, or require any admissionon or forbearance
from action by the Indemnified Party that would have a materiase effect on the
Indemnified Party.
Section 13.4 Insurance Recoveries. Subject to Section 10A, the in emnification
amounts due to any Indemnified Party under this Agreement shall be reduced by an insurance
proceeds received by, or applied on behalf of, such Person from the Insurance Policie�for such
claims.
47
Section 13.5 Survival, The indemnities contained in this Article XIII shall survive the
expiration or earlier terminktion of this Agreement, but only insofar as such indemnities relate to
any Losses that arose prior t6'\the expiration or earlier termination of this Agreement.
ARTICLE XIV
Section 14.1 Operator Assiknments. The Operator shall not sell, assign, convey,
transfer or pledge (each, a "Transfer") \phis Agreement or any of its rights under this Agreement,
without the prior written consent of the`County Representative, which consent may be withheld
or conditioned in the County Representative's sole discretion.
Section 14.2 Permitted Transfers.
provision of this Agreement, the following
the County Representative or any other Pers
thstanding Section 14,1 or any other
vers shall be permitted without the consent of
(a) the Operator may Transfe all of its rights hereunder to any Person (or
Affiliate of any Person) that acquires directly or in, irectly the controlling interest in the Team or
the MLB franchise owned by the Team with the app` oval of MLB, provided that (i) the Operator
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
Government Representatives with evidence reason bly satisfactory to the Government
Representatives that the proposed Transfer has been ap roved by Major League Baseball, (ii)
such transferee or its Affiliates execute and deliver to the ounty Representative an agreement,
in form and substance reasonably satisfactory to the County epresentative, to assume all of the
obligations of the Operator under this Agreement and to kee and perform all provisions of this
Agreement, (iii) such transferee or its Affiliate that acquires thc�Team's MLB franchise assumes
in writing all obligations of the Team under the Non-Relocatk*on Agreement, and (iv) such
transferee or its Affiliates assume in writing all of the obliga�on
' s of the Operator and its
Affiliates under the other Stadium Agreements;
(b) the Operator may Transfer any or all of iN rights and obligations
hereunder to one or more Affiliates of the Operator, including the Team,*d
(c) the Operator may, subject to Section 14.8, pled* collaterally assign,
grant a security interest in, or otherwise encumber, this Agreement or an or all of its rights
hereunder to any Secured Party or other provider, guarantor or insurer financing to the
Operator or its Affiliates.
Section 143 Release of Operator. The Operator shall be relieved of�s obligations
under this Agreement from and after the date of a Transfer permitted by Section 4.2(a) or (b)
above, or a Transfer approved by the County Representative pursuant to Section 14. above. No
other Transfer of this Agreement (including a pledge, collateral assignment or grant o a security
interest permitted by Section 14.2(c) above), the other Stadium Agreements, or any i terest in
such agreements or any direct or indirect ownership interests in the Operator shall be de med to
48
release the Operator frim any of its obligations under this Agreement or any other Stadium
Agreement to which it is`%a party.
Section 14.4 Tran actions that are not Transfers. For the avoidance of doubt, and
notwithstanding anything coptained in this Agreement to the contrary, the Parties confirm that
the Operator shall have the right, subject to the terms and provisions of this Agreement, to do
each of the following without tie consent of the Government Parties or their representatives and
without such action being considered a Transfer:
(a) to enter in Use Agreements and Service Agreements; and
(b) otherwise toEsell or grant to Persons (whether on a long-term or short-
term, or continuing or periodic bas's) licenses, usage or similar rights and otherwise grant to
Persons rights to use, enjoy, service , r maintain any part of the Stadium Premises, including the
Premium Seating, other seating. area parking areas, restaurant or retail areas for any purpose
related to the use, operation, exploitati n or management of the Stadium Premises.
Section 14.5 Transfers b GoI nment Parties. Without t r'
y x artyhe prior written consent of the
Operator, which may be withheld or conditioned in the Operator's sole discretion, the
Government Parties shall not (a) permit any lien, charge or other encumbrance arising by,
through, under or from the acts or omis 'ons of any Goverrunent Party, to exist upon, this
Agreement, any right, title or interest in orrider this Agreement or in the Stadium Premises or
any portion thereof, or (b) Transfer this Agre anent, any portion of the Stadium Premises, any of
their rights or obligations under this Agreerh,ent or any of their rights in or to the Stadium
Premises. Notwithstanding the foregoing, thisection shall not act as a prohibition against any
Transfer of this Agreement by a Government Pa y to any of its Government Entities, provided
that such Transfer does not have a material adverbs impact on any Team Affiliate. In no event
shall the County be obligated to encumber the Cunty's fee simple interest in the Baseball
Stadium Site.
Section 14.6 Transfers Void. Any Transfer\ba rty in violation of this Article XIV
shall be void ab initio and of no force or effect.
Section 14.7 Compliance Certificate. EachPartiesshall, upon the reasonable
request of another Party (or any current or prospective sours ,guarantor or insurer of financing
for the Operator or any of its Affiliates, any transferee oIIassignee pursuant to a Transfer
permitted under Section 14.2, any User pursuant to an existing qr prospective Use Agreement or
any Service Provider pursuant to an existing or prospective S� ice Agreement), execute and
deliver to the appropriate parties a certificate stating: \
(a) that this Agreement is unmodified and is in full force and effect (or, if
there have been modifications, that this Agreement is in full rce and effect as modified
and stating the modifications or, if this Agreement is not in full orce and effect, that such
is the case);
49
(b) to die knowledge of the Party providing the certificate, that there are no
defaults by it or the \ Cher Parties (or specifying each such default as to which it may have
knowledge);
(c) confirmation of the commencement and expected expiration dates of the
Term;
(d) to its knowledge, whether there are any counterclaims against the
enforcement of any Party's obligations; and
(e) any other matte?* reasonably requested.
Section 14.8 Collateral Assignhlent. Without limiting its rights under Section 14.2, the
Operator may grant a Collateral Assignment to any Secured Party, upon the condition that (a) all
rights acquired under each Collateral AssigTment shall be subject to the terms of this Agreement,
and (b) the Operator shall provide the Go ernment Parties with the name and address of the
Secured Party under the Collateral Assignme t. Notwithstanding anything to the contrary in this
Agreement or any other Stadium Agreement, o the extent the Operator or the Secured Party has
not notified a Government Party as provided i the preceding sentence, such Government Party
shall have no obligation to give the Secured P any notices pursuant to this Agreement or any
other Stadium Agreement. With respect to eac Collateral Assignment and Secured Party, the
Government Parties agree that following written receipt of such notice, and as long as such
Collateral Assignment remains unsatisfied or until written notice of satisfaction is given by the
Operator or the Secured Party to the County Represe tative, the following provisions shall apply;
(a) The Secured Party shall have th right, but not the obligation, to perform
any covenant or agreement under this Agreement to e performed by the Operator (and the
County agrees the Secured Party may enter the Stadi Premises (or any part thereof) for
purposes of effecting such performance), and the County d City shall accept such performance
by any Secured Party as if such performance was made by th Operator.
(b) The Government Parties shall, upon pro 'ding the Operator any notice of
(i) default under this Agreement, (ii) termination of this Agreeme, t, or (iii) a matter on which the
Government Party may predicate or claim a default, at the same time provide a copy of such
notice to the Secured Party previously identified in writing to the government Representatives
pursuant to this Section 14.8. From and after the date such notice ha been given to the Secured
Party, the Secured Party shall have the right (but not the obligation to cure the Operator's
defaults within thirty (30) days (the "Secured Party's Grace Period") fol , wing the later of (x) its
receipt of the Government Party's notice with respect to such default andry) the expiration of the
grace period, if any, provided to the Operator to cure such default, subject to extension of such
Secured Party's Grace Period for the additional periods of time specified in ubsections (c) and
(d) of this Section 14.8. The effectiveness of any Operator Default shall be suspended for all
purposes under this Agreement during the Secured Party's Grace Period. Theounty and City
shall accept such performance by or at the direction of the Secured Party as if the ame had been
done by the Operator. The Operator authorizes the Secured Party to take any suc , action at the
Secured Party's option and does hereby authorize entry (and the County agrees to\permit such
entry) upon the Stadium Premises by the Secured Party for such purposes, if m4q than one
50
Secured Party shall seek to exercise the rights provided for in this Section 14.8, the Secured
Party with the most senior lien priority (or with the senior priority right established under an
intercreditor agreement)all be entitled, as against the others, to priority in the exercise of such
rights. \\
(c) Notw thstanding anything contained in this Agreement to the contrary, the
Government Parties shall hano right to terminate this Agreement in any circumstance where
termination otherwise would 8p allowed under this Agreement unless, following the expiration
of the Secured Party's Grace Pe��od, the Government Parties shall notify the Secured Party of the
Government Parties' intent to so`erminate at least thirty (30) days in advance of the proposed
effective date of such termination\(xf such default is capable of being cured by the payment of
money), and at least sixty (60) days n advance of the proposed effective date of such termination
(if such default is not capable of b }ng cured by the payment of money). The provisions of
subsection (e) below shall apply only i during such 30 -day or 60 -day termination notice period,
the Secured Party shall:
(i) notify the dpvernment Parties of the Secured Party's desire to
effect a cure of all defaults reasonabl&X susceptible of cure by such Secured Party;
(ii) pay or cause to\ e paid all monetary obligations of the Operator
under this Agreement and the City Pa* ing Agreement (A) then due and in arrears as
specified in the termination notice to th Secured Party and (B) any of the same that
become due during such 30 -day or 60 -day eriod, as the case may be, as and when they
become due; and
(iii) comply, or with reasona��le diligence commence in good faith to
comply, with all non -monetary requirements of this Agreement then in default by the
Operator and reasonably susceptible of being com lied with by Secured Party; provided,
however, that the Secured Party shall not be req ired during such 30 -day or 60 -day
period to cure or commence to cure any default co isting of the Operator's failure to
satisfy and discharge any lien, charge or encumbrance against the Operator's interest in
this Agreement or the Stadium Premises.
(d) (i) If the Government Parties shall elect to terminate this Agreement
in any circumstance where termination otherwise woul be allowed under this
Agreement, and the Secured Party shall have proceeded in th • manner provided for by
Section 14.8(c), this Agreement shall be deemed not terminatedas long as the Secured
Party shall:
(A) pay or cause to be paid the Monet q obligations of the
Operator under this Agreement as the same become du , and continue its
good faith efforts to perform all of the Operator's other bligations under
this Agreement, except (1) obligations of the Operato to satisfy or
otherwise discharge any lien, charge or other encumbran against the
Operator's interest in this Agreement or the Stadium
Pr
es, (2) past
obligations then in default, and (3) defaults not reasonably sus eptible of
being cured by the Secured Party; and
51
(0) if not enjoined or stayed, take commercially reasonable
steps (subje,t to the effects of any Force Majeure, which for this purpose
shall include aures beyond the reasonable control of the Secured Party
instead of caws beyond the control of the Operator) to acquire or sell the
Operator's inter st in this Agreement by foreclosure of the Collateral
Assignment or otZr appropriate and lawful means.
Nothing contained in this Section `) 4.8(d)(i) shall be construed to extend this Agreement
beyond the original Term hereof, 'por to require the Secured Party to continue such
foreclosure proceedings after all deAults have been cured. If all defaults are cured and
the Secured Party discontinues such, foreclosure proceedings, this Agreement shall
continue in full force and effect as'\if the Operator had not defaulted under this
Agreement. If a Secured Party shall'` obtain possession of all or a portion of the
Operator's interest in or rights under thin Agreement by the initiation of foreclosure,
power of sale or other enforcement proceding under any Collateral Assignment, or by
obtaining an assignment thereof in lieu of foreclosure or through settlement of or arising
out of any pending or threatened foreclosure proceeding, and shall have assumed the
Operator's obligations under this Agreemen pursuant to an instrument reasonably
satisfactory to the County, then any terminati m notice will be deemed to have been
withdrawn and all alleged defaults described the in waived or satisfied, and all rights of
the Operator under this Agreement which may h ve been terminated or suspended by
virtue of such notice or alleged defaults shall be rei Stated in favor of such Secured Party.
(ii) The making or granting of a Collateral Assignment shall not be
deemed to constitute an assignment or Transfer of t,is Agreement or the Operator's
rights hereunder, nor shall the Secured Party, as such, V deemed to be an assignee or
transferee of this Agreement or the Operator's rights her under (other than as collateral
assignee), so as to require the Secured Party, as such, to Z ume the performance of any
of the terms, covenants or conditions on the part of the Operator to be performed
hereunder, unless the Secured Party shall acquire the rights u er this Agreement in any
proceedings for the foreclosure of the Collateral Assignor Iit, by deed in lieu of
foreclosure or any other lawful means. \
(e) If this Agreement is terminated in whole or in art for any reason,
including the rejection or disaffirmance of this Agreement in connection ith a bankruptcy,
insolvency or similar proceeding by or against the Operator, the Gove ent Parties shall
promptly provide the Secured Party with written notice that this Agreement has\eenerminated
(the "New Agreement Notice"), together with a statement of all sums that woulat time be
due under this Agreement and the City Parking Agreement but for such terminand of all
other defaults, if any, then known to the Government Parties. The Governmenies hereby
agree to enter into anew operating agreement (a "New Agreement") with respecStadium
Premises with the Secured Party or its designee for the remainder of the Term of this Ag, eement,
effective as of the date of termination, upon the same terms, covenants and conditions of this
Agreement, provided that;
52
(i) The Secured Party shall make a written request upon the
Governornt Parties for such New Agreement within thirty (30) days after the date that
the Secur� Party receives the New Agreement Notice given pursuant to this Section
14,8(e).
(ii) The Secured Party shall pay or cause to be paid to the County and
the City, at th time of the execution and delivery of such New Agreement, any and all
sums that wou at the time of execution and delivery thereof be due pursuant to this
Agreement and t e City Parking Agreement (as applicable) but for such termination and,
in addition thereto all reasonable out-of-pocket expenses, including reasonable attorneys'
fees, which the Co�ty and the City shall have incurred by reason of such termination
and the execution a c delivery of the New Agreement and that have not otherwise been
received by the Count and the City (as applicable) from the Operator or other party in
interest. In the event f a controversy as to the amount to be paid to the County and/or
the City pursuant to thi . Section 14.8(e)(ii), the payment obligation shall be satisfied if
the County and/or the Cit, (as applicable) is paid the amount not in controversy, and the
Secured Party agrees to p y any additional sum ultimately determined to be due. The
Parties shall cooperate to 4etermine any disputed amount promptly in accordance with
the terms of this Agreement`
(iii) Upon eecution and delivery of the New Agreement, the Secured
Party shall agree to remedy ' y Operator Default described in the New Agreement
Notice that is reasonably eapabl of being cured by the Secured Party. If, commencing
on the effective date of the Ne Agreement, the Secured Party fails to cure all such
defaults within the time periods re ired, such failure shall constitute an event of default
under the New Agreement and the vernment Parties shall have all rights and remedies
with respect thereto provided in the Nw Agreement.
(iv) Any New Agrec nt made pursuant to this Section 14.8(e) shall
have the same priority with respect to any\lien, charge or encumbrance on the Stadium
Premises, or any part thereof, as this Agr` ement, and the operator under such New
Agreement shall have the same right, title anS\nterest in and to the Stadium Premises as
the Operator has under this Agreement as of the ate of the New Agreement,
(v) Concurrently with the exbcution and delivery of such New
Agreement, the Government Parties shall assign an , to the extent held by a Government
Party, pay over to the operator named therein all of its ight, title and interest in and to (i)
moneys then held by or payable to the Government P ies which the Operator would
have been entitled to receive but for termination of this greement or the Government
Party's exercise of its rights upon the occurrence of an1?erator Default, and (ii) any
permits, licenses or other agreements that are necessary to o— rate the applicable portion
of the Stadium Premises and are not otherwise assigned to th operator named in such
New Agreement pursuant to the terms of the New Agreement. tom the date the County
receives written notification from a Secured Party of its interltn to cure defaults
pursuant to this Section 14,8(e), to the date of execution and livery of the New
Agreement (provided such execution and delivery shall be timely asVvided in Section
53
14,8(e)(i)), if a Securkd Party shall have requested such New Agreement as provided in
this Section 14.8(e), the County shall not enter into any new Use Agreements or Service
Agreements with respect to the Stadium Premises, cancel or modify any then existing
Use Agreements or Service Agreements with respect to the Stadium Premises, or accept
any cancellation, termination or surrender thereof (unless such termination shall be
effected as a matter of law 6g the termination of this Agreement or such agreements shall
have expired in accordance with their respective terms) that would adversely affect the
interest of the operator under the New Agreement without the written consent of the
Secured Party.
(f) Nothing contained in,this Agreement shall require the Secured Party to (x)
discharge any liens, charges or encumbran4es against the Stadium Premises or the Operator's
interests in or rights under this Agreement, O cure the bankruptcy, insolvency or any related or
similar condition of the Operator, or (z) cure arty default of the Operator which by its terms is not
reasonably susceptible of being cured by the\. Secured Party, in order to comply with the
provisions of Section 14.8(b) or (c), or as a con4ition to its exercise of rights hereunder or of
entering into the New Agreement. No default, oria, no obligation of the Operator, the cure or
performance of which requires possession of the Sta, ium Premises shall be deemed reasonably
susceptible of cure or performance by the Secured Par�or a successor to the Operator's interest
under this Agreement or a New Agreement if the Secured Party or such successor is not in
possession of the Stadium Premises,
(g) A standard clause naming the Secured arty as an additional insured may
be added to the Property Insurance Policy and any and all oth K insurance polices required to be
carried by the Operator under Article X, in each case, on th condition that, to the extent
applicable, the Property Insurance Proceeds payable under any of uch policies are to be applied
in the manner specified in this Agreement.
(h) Notices from the Government Parties to the Sec • ed Party shall be mailed
to the address or addresses furnished to the Government Parties pursuan to the first paragraph of
this Section 14.8, and notices from the Secured Party to the Government arties shall be mailed
to the address or addresses designated pursuant to the provisions of Sectio 19.1. Such notices,
demands and requests shall be given in the manner described in Section 9.1 and shall in all
respects be covered by the provisions of that Section.
(i) If this Agreement is rejected in connection with a b 1�tcy proceeding
by the Operator or a trustee in bankruptcy for the Operator, such rejection shall be deemed an
assignment by the Operator to the Secured Party of all of the Operator's interes�t under this
Agreement, and this Agreement shall not terminate and the Secured Party shall had all rights
and obligations of the Secured Party under this Section 14.8, as if such bankruptcy p3� ceeding
had not occurred, unless the Secured Party shall reject such deemed assignment by n Lice in
writing to the Government Parties within thirty (30) days following rejection of this Agre ent
by the Operator or the Operator's trustee in bankruptcy. If any court of competent jurisdic 'on
shall determine that this Agreement shall have been terminated notwithstanding the terms of t,e
preceding sentence as a result of rejection by the Operator or the trustee in connection with an
54
such proceeding, the riVhts of the Secured Party to a New Agreement from the Government
Parties pursuant to Sectidp 14.8(e) shall not be affected thereby.
0) Not kithstanding any provision in this Agreement to the contrary (but
subject to any contrary agre6ments between the Operator and the Secured Party) in the event of
any Casualty to, or CondemnAtion Action affecting, the Stadium Premises or any portion thereof
during such time as any Collateral Assignment(s) are in effect, the Secured Party which is the
holder of the most senior Collateral Assignment (either under Applicable Law or pursuant to an
intercreditor agreement) which ireludes a pledge and/or additional assignment of any Property
Insurance Proceeds and/or Condemnation Awards otherwise payable to the Operator hereunder
shall have the right to direct the use of all such Property Insurance Proceeds, Condemnation
Awards and similarly derived funds ,to which the Operator may have rights in accordance with
this Agreement on behalf of the Operai:or.
(k) Notwithstanding apything to the contrary set forth in this Section 14.8, no
Secured Party shall be liable under this Agreement unless and until such time as it becomes the
owner of the applicable portion of the Operator's interests under this Agreement securing its
Collateral Assignment, and then only for such obligations of the Operator which accrue during
the period while it remains the owner of suQQh interests; if a New Agreement in favor of the
Secured Party is in place, the terms thereof shall prevail.
(1) The Government Parties hgree to enter into such additional and further
agreements as any Secured Party reasonably shallequest to confirm and give effect to the rights
of the Secured Party as provided in this Section 14.k, as long as such agreements do not increase
the Government Parties' obligations or reduce the 0 rator's obligations under this Agreement
in any material respect.
ARTICLE XV
ATIONS. W
Section 15.1 County Representations, Warranties And Covenants. The County
represents, warrants and covenants to the Operator and the City th t:
(a) The County has full power and authority to e%ter into this Agreement, and
the execution, delivery, and performance of this Agreement byte County have been duly
authorized by all necessary governmental action (other than the van` us customary regulatory
approvals, licenses and permits which are required for the developme , t, construction, use and
operation of the Stadium Premises), The County Mayor or his d signee executing this
Agreement is the individual duly authorized to execute and deliver this A , reement on behalf of
the County and has so executed and delivered this Agreement. All nec ssary governmental
action required by the County has been taken to duly authorize the exec tion, 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 wit its terms. The
County Representative has been duly authorized to act on behalf of the Count \as provided in
this Agreement,
55
(b) T,,he execution, delivery and performance of this Agreement by the County
are not prohibited by a d do not conflict in any material respect with any other agreements,
instruments, judgments o\decrees to which the County is a party,
(c) Neithe the execution, delivery nor, to the actual knowledge of the County,
performance of this Agreeme ,t by the County violates the County Charter, the County Code or
any ordinance or resolution of e County, To the actual knowledge of the County, the County
has not received any notice as o �the date of this Agreement asserting any noncompliance in any
material respect by the County wi`t\ Applicable Laws with respect to the Stadium Premises and
the transactions contemplated in an� by this Agreement; and the County is not in default with
respect to any judgment, order, injun�tion or decree of any Governmental Authority which is in
any respect material to the transactions\contemplated in and by this Agreement.
(d) Except as otherwise
City in writing, to its actual knowledge,\
County or of which the County has actual
body seeking to restrain or prohibit, or see
execution and delivery of, or the consumm
Agreement, or which might materially and
Premises as contemplated in and by this Ag
disclosed to the Team and/or the Operator and the
io suit is pending which has been served upon the
knowledge, before or by any court or governmental
k�,{� g damages or other relief in connection with, the
itid� of the transactions contemplated in and by, this
idvel�sely affect the use and operation of the Stadium
(e) If any lien, encumbrance, e sement, license, right -of --way, covenant,
condition, restriction, or other title defect (a "Tit/ Defect") first arises subsequent to the
execution of this Agreement which is created by, throu'\n' or under the County and not by the acts
of the Operator, the Team or their respective agents, con %rec
tors, employees and tenants, which
will materially diminish, impair or disturb the rights of thperator under this Agreement with
respect to the Stadium Premises, the County shall take all \eent
ble actions, at its sole cost and
expense, to promptly eliminate such Title Defect. The 0tor acknowledges that utility
easements and other matters expressly permitted in this Agrshall not constitute a Title
Defect. Except as expressly permitted under this Agreeme, County shall not create any
lien, encumbrance, easement, license, right-of-way, covenant, c6 dition or restriction which
would encumber the Stadium Premises and materially diminish, im air or disturb the rights of
the Operator under this Agreement.
Section 15.2 City Representations, Warranties and Covenants, The City represents,
warrants and covenants to the Operator and the County that:
(a) The City has full power and authority to enter into this greement, and the
execution, delivery, and performance of this Agreement by the City have ben duly authorized
by all necessary governmental action (other than the various customary reg atony approvals,
licenses and permits which are required for the development, construction, use d operation of
the Stadium Premises). The City Manager or his designee executing this Agreem nt is the party
duly authorized to execute and deliver this Agreement on behalf of the City and had� so executed
and delivered this Agreement. All necessary governmental action required by the G'ty has been
taken to duly authorize the execution, delivery and performance by the City pursu nt to this
Agreement. This Agreement is a valid and binding obligation of the City, enforceab ,, against
the City in accordance with its terms. The City Representative has been duly authorized to act
on behalf of the City`s provided in this Agreement.
(b) The execution, delivery and performance of this Agreement by the City
are not prohibited by and\,do not conflict in any material respect with any other agreements,
instruments, judgments or decrees or other restriction of any Governmental Authority, to which
the City is a party or is otherVvise subject.
(c) Neither the execution, delivery nor, to the actual knowledge of the City,
performance of this Agreemenf,..by the City violates the City Charter, the City Code or any
ordinance or resolution of the dity. 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 Applicab{e Laws with respect to the Stadium Premises and the
transactions contemplated in and by this Agreement; and the City is not in default with respect to
any judgment, order, injunction or decr6.p of any Governmental Authority which is in any respect
material to the transactions contemplate&lin and by this Agreement.
(d) Except as otherwise `dis
to its actual knowledge, no suit is pending wYi
City has actual knowledge, before or by any
prohibit, or seeking damages or other relief in
the consummation of the transactions contem
materially and adversely affect the use and op(
and by this Agreement.
osed to the Operator and the County in writing,
h has been served upon the City or of which the
,urt or governmental body seeking to restrain or
),nnection with, the execution and delivery of, or
aged in and by, this Agreement, or which might
tt* of the Stadium Premises as contemplated in
(e) if a Title Defect arises subsequb�t to the execution of this Agreement
which is created by, through or under the City or one of its Government Entities and not by the
acts of the Operator, the Team or their respective agents, contractors, employees and tenants,
which will materially diminish, impair or disturb the rights o . the Operator under this Agreement
with respect to the Stadium Premises, the City shall take all `Tasonable actions, at its sole cost
and expense, to promptly eliminate such Title Defect, They City shall not create any lien,
encumbrance, easement, license, right-of-way, covenant, condit%on or restriction which would
encumber the Stadium Premises and materially diminish, impair `or disturb the rights of the
Operator under this Agreement.
Section 15.3 Operator Representations, Warranties and Covenants. The Operator
represents, warrants and covenants to the County and the City that:
(a) The Operator is a limited liability company duly o4 anized 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 constit es the valid and
legally binding obligation. of the Operator, enforceable against the Operator in ccordance with
its terms.
(b) The execution, delivery and performance by the Operhtor of this
Agreement have been duly authorized by all necessary limited liability company ac\*on by the
Operator and do not violate the Operator's certificate of formation or limited liability company
57
agreement, or the MLB Constitl
in the breach in any material r�
loan or credit agreement, or othe
which the Operator or its assets
Person (including members of
Operator's execution of this Agr,
on or, any provision of MLB Rules and Regulations, or result
ect of or constitute a default in any material respect under any
agreement or instrument to which the Operator is a party or by
y be bound or affected. All consents and approvals of any
h Operator, if necessary) required in connection with the
:m'cnt have been obtained.
(c) Except as otherwise disclosed to the County and City in writing, to its
knowledge, no suit is pending against br affects the Operator which has been served upon or of
which the Operator has knowledge vJhich could have a material adverse affect upon the
Operator's performance under this Agr�ement or the financial condition or business of the
Operator. There are no outstanding judgments against the Operator.
(d) The Operator has not\paid or given, and will not pay or give, any third
person any money or other consideration for\obtaining this Agreement, 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 are not
prohibited by and do not conflict in any material respect with any other agreements, instruments,
judgments or decrees or other restriction of any 0vernmental Authority, or any provision of
MLB Rules and Regulations, to which the Operator is\,a party or is otherwise subject.
(f) The Operator has received no notice
Agreement asserting any noncompliance in any maQ aI
Applicable Laws with respect to the transactions contempI I I
Operator is not in default with respect to any judgment,
Governmental Authority which is in any respect material to
by this Agreement.
as of the date of execution of this
respect by the Operator with any
;d in and by this Agreement; and the
order, injunction or decree of any
'fie transactions contemplated in and
(g) If any lien, covenant, condition, eneumb� nce or other restriction arises
subsequent to the execution of this Agreement which is crew d by, through or under the
Operator, the Team, any Team Affiliate or their agents and not b� the acts of the Government
Parties or their respective agents, which will materially diminish, i aii• or disturb the rights of
the Government Parties under this Agreement with respect to the Stadi Premises, the Operator
shall take all reasonable actions, at its sole cost and expense, to pro tly eliminate such lien,
covenant, condition, encumbrance or restriction. Except as expresslpermitted under this
Agreement, the Operator shall not create any lien, covenant, condition, ncumbrance or other
restriction which would encumber the Stadium Premises and materially diminish, impair or
disturb the rights of the Government Parties under this Agreement.
(h) After the Substantial Completion Date, (i) the Operator\ shall maintain,
keep current and comply in full with any and all permits, consents and approdis required by
Environmental Laws with respect to, and its use and operation of, the Stadium Pr%ses and the
performance of its obligations under this Agreement, and (ii) the Operator shall coly and shall
cause the Stadium Premises to be in compliance with all Environmental Laws arq shall not
conduct or allow any use of or activity on or under the Stadium Premises over \Yhich the
Operator exercises control that will violate or threaten to violate any Environmental Law;
provided, however, that t \ Operator's obligations pursuant to this Section 15.3(g) shall not
release the County or City from obligations otherwise required by this Agreement or the other
Stadium Agreements, The Operator shall promptly notify the County if the Operator has actual
knowledge of any noncompliance or any potential noncompliance with any Environmental Law
or receives any written or oral notification from any Governmental Authority or any third party
regarding any noncompliance or threatened or potential noncompliance with, or any request for
any information pursuant to, any Environmental Law.
(i) The Operator covenants and agrees to retain sufficient stadium revenues
and stadium revenue streams, whether: arising from the Revenue Rights or otherwise from the
operation or use of the Baseball Stadium, adequate to meet all of its obligations under this
Agreement. Further, the Operator covenants that in the event that there are any unpaid
obligations under this Agreement for which the Operator shall not have adequate reserves or
reasonably anticipated revenues from the., aforementioned sources, and which are not being
contested by the Operator in good faith, thcti the Operator shall not make any further payments
to the Team under its license agreement witii;the Team or any distributions of stadium revenues
to the Team Affiliates and/or its partners until'411 such obligations have been fully satisfied.
(j) Simultaneously with the `execution and delivery of this Agreement, the
Team has executed and delivered to the Government Parties the Non -Relocation Agreement.
,11
(k) To Operator's knowledge, nd, MLB Rule and Regulation, in any material
manner or respect, prohibits or limits the right or pawer of the Operator to enter into or accept
each of the terms, commitments and provisions of thisAgreement or adversely affects the ability
or right of the Team to play its MLB Home Games attHe Baseball Stadium.
Section 15.1 Mutual Covenants.
(a) The Parties, whenever and as ofteneach shall be reasonably requested
to do so by another Party or by the Team, shall execute 6 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 o t the purpose and intent of, this
Agreement and each of the other Stadium Agreements except �the extent such actions by the
County require approval by the Board.
(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 round of ultra vires acts
or for any illegality or on the basis of any challenge to the enforceab'lity of this Agreement,
except as otherwise permitted in this Agreement or in the other Stadium greements. Subject to
the preceding sentence, no such challenge may be asserted by any Party e4ept by the institution
of a declaratory action in which the Parties and the Team are parties.
(d) Each Party shall vigorously contest any challenge\to the validity,
authorization or enforceability of this Agreement or the City Parking\ Agreement (a
59
"Challe e"), whether asserted by a taxpayer or any other Person, except where to do so would
be deemeN by such Party as presenting a conflict of interest or would be contrary to Applicable
Law. The a licable Party shall pay all of the legal fees, costs and other expenses incurred by it
in contesting tl�e Challenge. The applicable Party shall consult with the Parties in contesting any
Challenge, The Pies shall take all ministerial actions and proceedings reasonably necessary or
appropriate to rem • dy 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 \hich requires approval of the Board or Commission, as the case may be,
or is not deemed by the\ ounty or City to present a conflict of interest or is not deemed by the
County or City, as the case ay be, to be contrary to Applicable Law.
(e) Should any Party receive knowledge about any matter which may
constitute a breach of any of its, arranties or covenants set forth in this Article XV which arises
after the date of this Agreement, i shall promptly notify the other Parties of the same in writing.
Specifically, without limitation, the arties shall promptly inform the others of any suits referred
to in Sections 15.1(d), 15.2(d) and 15. (c) and any Challenge referred to in Section 15.4(d).
(f) During the Term, he County shall comply with all Applicable Laws
relating to its ownership of the Stadium Pre , ises, and each Government Party shall comply with
all Applicable Laws relating to the exercise ofits rights and performance of its obligations under
this Agreement and the other Stadium Agreeme , ts, but not with respect to the use, operation and
management of the Baseball Stadium by the Op ator (which shall be the responsibility of the
Operator, except as specifically provided below). he County in its capacity as owner of the
Stadium Premises shall execute such documents and He such documents and reports, with any
filing fees or other costs to be paid by the Operator, as m' be reasonably necessary to enable the
Operator and its Affiliates to obtain and maintain alln� essary permits and licenses that are
required of an owner of the Stadium Premises. With reg)to any entry by the County or the
City into the Stadium Premises for any permitted purpose, the"ounty or the City, as applicable,
shall comply with all Applicable Laws relating to such entry,The Government Parties shall
obtain or cause to be obtained all necessary permits and license required for the conduct of
Community Events and shall comply with all Applicable Laws (an)�k11 rules and regulations of
the Operator applicable to the conduct of Stadium Events) relating to th conduct of Community
Events.
(g) During the Term, the Operator, in connection with its she and the exercise
of its rights with respect to the Stadium Premises, shall comply with all Applicable Laws relating
to such use and exercise, including environmental laws, and the Operator shall be esponsible for
causing the Stadium Premises to be in compliance with all Applicable Laws, all at t Operator's
sole cost and expense. The applicable Government Party shall, in connection with its se and the
exercise of its rights with respect to the Stadium Premises for Community Events, sha Icomply
with all Applicable Laws relating to such use and exercise, including environmental law
Operator shall obtain and maintain all necessary permits and licenses that are require,
connection with the operation and use of the Stadium Premises.
(h) All covenants, representations and warranties contained in this Agreement
shall survive the execution and delivery of this Agreement. No action taken pursuant to or
.0
related to this Agreement ncluding 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.
(i) In exercising its rights and fulfilling its obligations under this Agreement
and each of the other Stadium Agreements, each Party shall act in good faith. Notwithstanding
the foregoing, each party acknowlecllges that in each instance under this Agreement and the
Stadium Agreements where a Party is 6bligated to exercise good faith, to use good faith efforts
or to use diligent reasonable efforts or other similar efforts, such Party shall not be required to
expend any funds, or grant any other consideration of any kind, in the performance of such
undertaking, and each Party further acknowl` dges that the obligation of any Party to act in good
faith, undertake good faith efforts, or to use diligent reasonable efforts or other similar efforts
does not constitute a warranty, representation off\ other guaranty that the result which the Parties
are attempting to achieve will be successfully aphieved and no Party shall be liable for any
failure to achieve the result or results intended 'so long as the Party has complied with its
obligation to act in accordance with the applicable siL&rd.
ARTICLE
TAXES
Section 16.1 Intangible and Ad Valorem Taxes. Ue Team's use of the Stadium
Premises is subject, under existing law, to the annual intangibieX�ax imposed by Chapter 199 of
the Florida Statutes. If any ad valorem real property taxes shall be levied in respect of the
interest of the Operator or any Team Affiliate in the Stadium Premi es during the Term of this
Agreement, the Team Affiliates shall, to the extent permitted by the • Applicable Law, (a) be
permitted to reduce the amount of their payment obligations otherwise . ue to the County under
the Stadium Agreements up to the amount of the ad valorem tax due to e County and (b) be
permitted to reduce the amount of their payment obligations otherwise duel the City under the
Stadium Agreements up to the amount of the ad valorem tax due to the City.
Section 16.2 Targeted Taxes. Neither the County nor the City shall impose any
Targeted Taxes during the Term of this Agreement. If at any time during the �rm of this
Agreement, any Team Affiliate believes that a tax imposed or enabled by the County�the City
constitutes a Targeted Tax, then the Team Affiliate shall have the right to Institute, court
proceedings to challenge the permissibility of the tax under this Agreement. Each party sha'be
responsible for its own legal and court -related expenses incurred in connection with the co
proceedings. The County and City further covenant not to support any State legislation or othe
efforts that would reasonably lead to or result in a Targeted Tax from which the County or the
City (including any County or City agency) shall derive revenues. Without limiting the
foregoing obligations, if a Targeted Tax is imposed by the County or the City, or by the State
from which the County or the City (including any County or City agency) would derive
revenues, the Team Affiliates, to the extent permitted under then Applicable Law, shall have the
right to reduce amounts due to the County and the City, respectively, under this Agreement and
the other Stadium Agreements (including any amounts payable with respect to Capital
Improvements).
61
ARTICLE XVII
DEFAULTS AND REMEDIES; TERMINATION
Section 17.1 Operator Default. Each of the following shall constitute a default by the
Operator hereunder (an ";Operator Default"):
(a) If any representation or warranty made by the Operator in this Agreement
shall at any time prove to have been incorrect in any material respect as of the time made, and
the Operator fails to cause such representation or warranty to become correct within 40 days
after written notice thereof is, given to the Operator by a Government Party that such
representation or warranty is incl ect; provided, however, that if it is not reasonably possible to
cause such representation or warrnty to become correct within such 40 -day period, such cure
period shall be extended for up to I% days following the date of the original notice if within 40
days after such written notice the perator commences diligently and thereafter continues to
cause such representation or warranty t�q become correct.
(b) If the Operator sh Ntl fail to pay any amount due to a Government Party
when due and payable under this Agreement, and such failure is not cured within 20 days after
written notice thereof is given to the Operator by the applicable Government Representative.
(c) If the Operator shall mute
provisions in this Agreement and such failure i5
thereof is given to the Operator by the appli`
however, that if it is not reasonably possible to cul
cure period shall be extended for up to 180 days
within 40 days after such written notice the C
pursues the cure.
rially breach any of the other covenants or
not cured within 40 days after written notice
able Government Representative; provided,
esuch breach within such 40 -day period, such
following the giving of the original notice if
perhor commences and thereafter diligently
Section 17.2 Government Party Default. Each' ,of the following shall constitute a
default by a Government Party hereunder (a "Government P%iy Default"):
(a) If any representation or warranty made \ y a Government Party in this
Agreement shall at any time prove to have been incorrect in anyaterial respect as of the time
made, and the Government Party fails to cause such representation warranty to become correct
within 40 days after written notice thereof is given to the Governmen Party by the Operator that
such representation or warranty is incorrect; provided, however, th t if it is not reasonably
possible to cause such representation or warranty to become correct wit in such 40 -day period,
such cure period shall be extended for up to 180 days following the date the original notice if
within 40 days after such written notice the Government Party comm ces diligently and
thereafter continues to cause such representation or warranty to become corre�.
(b) If a Government Party shall fail to pay any amount due to the Operator
when due and payable under this Agreement, and such failure is not cured withi 20 days after
written notice thereof is given to the Government Parry by the Operator.
62
(c) `.. If a Government Party shall materially breach any of the other covenants
or provisions in this'Agreement and such failure is not cured within 40 days after written notice
thereof is given to the.Government Party by the Operator; provided, however, that if it is not
reasonably possible to dpure such breach within such 40 -day period, such cure period shall be
extended for up to 180 days following the giving of the original notice if within 40 days after
such written notice the Government Party commences and thereafter diligently pursues the cure.
Section 17.3
(a) Subject to `complying with Article XVIII with respect to matters that must
be resolved by arbitration, the Government Parties may institute litigation to recover damages or
to obtain any other remedy at law\or in equity (including specific performance, permanent,
preliminary or temporary injunctive\relief, and any other kind of equitable remedy) for any
Operator Default.
(b) Subject to complyln` with Article XVIII with respect to matters that must
be resolved by arbitration, the Operator may institute litigation to recover damages or to obtain
any other remedy at law or in equity (includi%g specific performance, pernianent, preliminary or
temporary injunctive relief, and any other kind\of equitable remedy) for any Government Party
Default.
(c) Except with respect to rights and remedies expressly declared to be
exclusive in this Agreement or the other Stadium Agreements, the rights and remedies of the
Parties provided for in this Agreement 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 such other rights or remedies for the same D fault or any other Default.
(d) Any failure of a Party to exercise any\�ight 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) Notwithstanding anything to the contrary in 1is Agreement, the City may
only provide a notice of default and exercise remedies with respect to a breach of a City
Provision.
(f) In the event of any litigation, arbitration or ot.er dispute resolution
proceeding between the Operator and a Government Party in connection with this Agreement
("Proceeding"), the prevailing party in such Proceeding shall be entitled to'
eimbursed by the
other party for all costs and expenses incurred in such Proceedings, in uding reasonable
attorneys' fees and costs as may be fixed by the Eleventh Judicial Circuit CoA of Florida for
Dade County, the Federal District Court or the arbitrator, as applicable, and any a and granted to
a party in such a proceeding shall be treated as the sole property of such party.
Section 17.4 [INTENTIONALLY OMITTED]
Section 17.5 Termination. Notwithstanding any other provision in this Agre ent to
the contrary, this Agreement may not be terminated by any Party (upon a Default or otheise),
63
and each Part waives any right to terininate it may have at law or in equity, except as
specifically pr�i ed in Sections 17,5.1, 17.5.2, 17.5.3, 11.2, 11.4 and Article XII of this
Agreement.
Section 1\7.5.1 Termination of Construction Administration Agreement, This
Agreement shall auto atically terminate upon any termination of the Construction
Administration Agreemen in accordance with its terms by the Government Parties or the
Stadium Developer prior to the Substantial Completion Date.
Section 17.5.2 Teimination by Government Parties, In addition to any other
remedies the Government Partieslmay have under this Agreement or at law or in equity, the
Government Parties collectively (bi}t not independently) shall have the right to terminate this
Agreement, by giving written notice (which must be joint written notice) of termination to the
Operator, upon the occurrence of any of\the following;
(a) The MLB fr' nchise held by the Team is terminated.
(b) A court of hompetent jurisdiction has issued a final and
unappealable order holding that the Team h�s breached Section 2(c) of the Non -Relocation
Agreement (after giving effect to the notice ana\cure period thereunder) but has refused to issue
an injunction or specific performance with respoc'yo such breach (other than as a result of a cure
of such breach). \
(c) If the Operator shall fil a voluntary petition in bankruptcy under
the United States Bankruptcy Code or an involuntary Petition shall be filed with respect to the
Operator under the United States Bankruptcy Code and uch petition remains undismissed and
unstayed for a period of 90 days following the filing (each "Bankruptcy Event") unless within
45 days following the occurrence of such Bankruptcy Eve t, at the request of a Government
Party, either (a) the Team, (b) a Team Affiliate, or (c) othe Person jointly acceptable to the
Government Parties assumes all of the Operator's obligati. ns and liabilities under this
Agreement and the City Parking Agreement from and after the da of the assumption and cures
all pre-existing Operator Defaults under this Agreement.
Section 17,5.3 Termination by Operator. In addition toy y other remedies the
Operator may have under this Agreement or at law or in equity, the Operat%rshatl have the right
to terminate this Agreement, by giving written notice of termination to thvernment Parties,
upon the entry by any court or arbitrator of competent jurisdiction of a detnation that is not
stayed or vacated within thirty (30) days and has become final and non-appealab e that prohibits
or materially impairs or restricts the right of the Team to use the Baseball Sta 'um for MLB
Home Games throughout the scheduled Term; provided that the Operator shall nt have such
termination right if the Team's right to use the Baseball Stadium is materially i paired or
restricted due to a breach by the Operator of this Agreement or the negligence of the%O rator or
the Team; provided, further, that each Party shall use reasonable best efforts to mo ' y 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 at least one hundred eighty (180) days before the
64
Operator may exercise its termination right. In the event that the Operator terminates this
Agreement under this Section 17.5.3, the Team's annual payment obligation under Section 7 of
the Non -Relocation Agreement shall remain in full force and effect.
Section 17.5.4 Effect of Termination. If a Party elects to terminate this
Agreement in accordance 'with its terms (or this Agreement terminates pursuant to Section
17.5.1), this Agreement and 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 and each
of the other Stadium Agreements 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).
Section 17.5.5 Post -Termination Agreements. In the event of an early termination
of this Agreement, all Use Agreements algid Service Agreements shall terminate upon such
termination.
Section 17.6 Exclusive Remedies. Th $ Tights and remedies conferred upon or reserved
to the Parties in this Article XVII are intended to .be the exclusive remedies available to each of
them upon a breach or default by the other Parti, except as may be otherwise expressly set
forth in this Agreement or in any of the other Stadiu� Agreements.
ARTICLE
ARBITRATION
Section 18.1 Arbitration. Any dispute, controversy or claim between the Operator (or
one of its officers, directors, managers, owners or other Affiliates) and one more or more
Government Parties that arises under or in connection with or is ilated in any way to Articles IV
(with the exception of Section 4.8 and 4.9), Article V, Article Vl�, Article VII, Article IX (with
the exception of Section 9.3), Article X or Article XI of this Agree ent (a "Dispute'), including
a Dispute relating to the effectiveness, validity, interpretation or imp mentation of any of those
provisions, shall be submitted to, and resolved exclusively and finall through, the following
arbitration process ("Arbitration"):
(a) Within two (2) Business Days after a request fa Arbitration by a
Government Party or the Operator, the parties shall hold an initial meeting IQ attempt in good
faith to negotiate a settlement of the Dispute. No request concerning a Dispi� e may be made
after the time allowed by any statute of limitations applicable to such Dispute. I within four (4)
Business Days after the request for Arbitration the parties have not negotiated a se ',ement of the
Dispute (as evidenced by a written, executed settlement agreement), a party , ay request
Arbitration. \
(b) Except as set forth below, the Arbitration shall be administered by the
American Arbitration Association ("AAA") under its Commercial Arbitration Rules and
65
i
conducted pursuant p such rules, as such rules are in effect as of the time the Dispute is
submitted to the AAA %for Arbitration,
(c) The, Arbitration shall be conducted before and determined by a panel (the
"Arbitration Panel") con§ting of threepersons (each an "Arbitrator"), who shall be selected in
accordance with the AAA's,Commercial Arbitration Rules. None of the Arbitrators shall be a
current or former employee,officer, director, trustee, owner, Affiliate, attorney or agent of any
Party or any Government Party, and none of the Arbitrators shall have performed, directly or
indirectly, a material amount of,work for a Government Party, the Operator, the Team, or any
Team Affiliates within the five-year period immediately preceding the date of their selection or
intend or desire to perform work for a Government Party, the Operator, the Team, or any Team
Affiliates within one year following the date of their selection.
(d) Barring extraoid'inary circumstances, an initial conference with the
Arbitration Panel shall be scheduled to take place in Miami, Florida within thirty (30) days after
the appointment of the Arbitration Panel.`. In setting a schedule and conducting the Arbitration,
the Arbitration Panel shall take into account the Parties' desire to resolve Disputes in a prompt
and cost effective manner.
(e) Barring extraordinary cit�umstances, the award will be rendered not later
than thirty (3 0) days from the date of the conclusipn of the hearing.
(f) The Arbitration shall take plate in Miami, Florida. Each Party irrevocably
consents to the delivery of service of process with,respect to any Arbitration in any manner
permitted for the giving of notices under Section 19.1, fpr itself and each of its Affiliates.
(g) Notwithstanding anything container in the AAA rules to the contrary,
unless the Arbitration Panel finds that one or more clai s or defenses were frivolous or
knowingly false when made, except as expressly provided b{sewhere in this Agreement, each
Party shall bear the cost of its own legal representation and exp6witness fees in any Arbitration
under this Agreement. If the Arbitration Panel finds that one o)I more claims or defenses were
frivolous or knowingly false when made, the Arbitration Panel still be entitled to require the
Party that made such frivolous or knowingly false claims or defense to bear all or a portion of
the other Parties' respective legal fees and expert witness fees. Excep as expressly provided in
the foregoing sentence or elsewhere in this Agreement, all other cos and expenses of the
Arbitration shall be shared equally by the Parties.
(h) All provisions of this Agreement applicable to D1V�utes generally,
including the limitations on damages in Section 183, shall apply to the Arbitratio, i.
(i) The Arbitration Panel shall render a written, reasoned award. Any award
rendered in any Arbitration pursuant to this Section 18.1 shall be final and bindin upon the
Parties and non -appealable, and a judgment of any court having jurisdiction may be entered on
any such award.
0) In no event shall the Arbitrators have the authority to amend or insert any
provisions into this Agreement.
1
Section 18. Emergencv Relief. Notwithstanding any provision of this Agreement to
the contrary, each ,arty may seek interim relief, whether affirmative or prohibitive, in the form
of a temporary restraining order or preliminary injunctive relief or other interim equitable relief
concerning a Dispute',. - including, without limitation, declaratory relief, provisional remedies,
special action relief, stay proceedings in connection with special action relief, and any similar
relief of an interim nature at any time from any court of competent jurisdiction, including with
respect to any Dispute. If a Dispute requires temporary or preliminary injunctive relief before
the matter may be resolved by Arbitration, the procedures set forth in Section 18.1 will still
govern the ultimate resolution_ of the Dispute notwithstanding the fact that a court of competent
jurisdiction may have entered an order providing for interim relief, injunctive or another form of
temporary or preliminary relief.`
Section 18.3 No Indirect _Damages, In no event shall any party be liable under any
provision of this agreement for any special, indirect, incidental, consequential, exemplary, treble
or punitive damages, in contract, tort or otherwise, whether or not provided by 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, and subject to the limitations in, Article XIII. The preceding limitation shall
not be a basis for any claim or argument that a dispute should not be arbitrated.
ARTICLE XIX
Section 19.1 Notices. Any notice, demand, �qu
under this Agreement shall be in writing and shall be con ,
one Business Day after being sent by reputable overnight\
being mailed by certified mail, return receipt requested, to
below (or at such other address as a Party may specify by ni
the other Parties):
If to the County:
consent or other communication
1 given when delivered in person,
ier, or three Business Days after
Parties at the addresses set forth
t given pursuant to this Section to
To the attention of: County Manager `
111 NW 1St Street, Suite
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 Keenan
67
If to th ,City;
To the attention of,
With a copy to:
If to the Operator:
City Manager
444 SW 2nd Avenue, 10'h Floor
Miami, Florida 33130
Attn: Pedro G. Hernandez
City Attorney
444 SW 2"d Avenue, 9"' Floor
Miami, Florida 33130
Attn: Julie O. Bru
and Olga Ramirez-Seijas
To the attention o, ; 2267 Dan Marino Boulevard
Miami, Florida 33056
\ Attn: David Samson and Derek Jackson
With a copy to: I�roskauer Rose LLP
15$5 Broadway
NetiZ York, New York 10036
Attn\,Wayne Katz
Notwithstanding the foregoing, periodic and ordinary course notices, deliveries and
communications between the Operator and the County Representative or City Representative, as
applicable, may be given (and shall be considered given hen provided) by any of the means set
forth above, and to the address provided by the Goverent Representatives to the Operator
from time to time.
Section 19.2 Merizer Clause. This Agreement, includig the schedules and exhibits to
this Agreement, and the other Stadium Agreements contain the s le and entire agreement among
the Parties and their Affiliates with respect to their subject ma er, are fully integrated, and
supersede all prior written or oral agreements among them reldt'ng to that subject matter,
including the BSA. Except as specifically set forth in this Agreem nt and the other Stadium
Agreements, there shall be no warranties, representations or other agre ments among the Parties
or their Affiliates in connection with the subject matter hereof or thereof.
Section 19.3 Amendment. This Agreement may not be amended or modified except in
a writing signed by the Parties affected by the amendment or modification, and approved by the
Board and the Commission, if applicable.
Nom
Section 19. Binding Effect. This Agreement shall be binding upon the Parties and
their respective succ ssors and assigns, subject.to the limitations on Transfer in Article XIV.
Section 19.5 Waiver. No waiver of any terms of this Agreement shall be binding on the
Party granting the waiver until the waiver is reduced to writing, and executed by the Party
granting the 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.
Section 19.6 Non -Recourse Liability of County Personnel. Notwithstanding and
prevailing over any contrary provision or implication in this Agreement, no member, elected or
appointed official, officer, emplgyee or agent of the County shall be liable to the Operator, or
any successor in interest to the Ok rator, in the event of any default or breach by the County for
any amount which may become duo the Operator or any successor in interest to the Operator,
or on any other obligation under the terms of this Agreement, except for their criminal acts with
respect to this Agreement (i.e., acts whi�,would constitute crimes were they prosecuted for and
convicted of such acts).
Section 19.7 Non -Recourse Liability of City Personnel. Notwithstanding and
prevailing over any contrary provision or implication in this Agreement, no member, elected or
appointed official, officer, employee or agent of`the City shall be liable to the Operator, or any
successor in interest to the Operator, in the evert of any default or breach by the City for any
amount which may become due to the Operator or'lany successor in interest to the Operator, or on
any other obligation under the terms of this Agr6,ement, 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).
Section 19.8 Non -Recourse Liability of Opera;tor Personnel. Notwithstanding and
prevailing over any contrary provision or implication ins. this Agreement and except for their
criminal acts with respect to this Agreement (i.e., acts whi6� would constitute crimes were they
prosecuted for and convicted of such acts), the officers ;\ directors, partners, shareholders,
members, employees and agents of the Operator, the Team a�d their Affiliates (the "Operator
Personnel") shall not in any way be liable under or with respect t this Agreement; no deficiency
or other monetary or personal judgment of any kind shall be soug , t or entered against any of the
Operator Personnel with respect to liability under or with respect to is Agreement; no judgment
with respect to liability under or with respect to this Agreement sh 1 give rise to any right of
execution or levy against the assets of any of the Operator Personne , and the liability of the
Operator under this Agreement shall be limited to the assets of the Ope for (although nothing
contained in this Section shall be deemed to limit the rights of the Goverftment Parties against
the Team or the liability of the Team under the Non -Relocation Agreement and the Assurance
Agreement).
Section 19.9 Government Cooperation. Within five Business Days after receipt of
written notice from the Operator and, subject to any limitations of its authority under Applicable
Law and subject to the provisions of this Agreement, each Government Party shall consent to,
execute and deliver to the Operator any suitable applications or evidence of the Operator's
authority required by any governmental or other body claiming jurisdiction in connection with
any activities the Operator may conduct in accordance with this Agreement.
Section 19.10,, Government Representatives. The County Manager or his designee (the
"County Representative" ") shall act as liaison and contact person between the Operator and the
County in administering and implementing the terms of this Agreement, The City Manager or
his designee (the "Cit e resentative" and, together with the County Representative, the
"Government Representativ ,s") shall act as liaison and contact person between the Operator and
the City in administering and.',implementing the terms of this Agreement. The County Manager
and City Manager shall notify�.;the other Parties in writing if they designate (or re -designate)
another individual to serve as Co%nty Representative or City Representative, respectively. Each
of the County Representative and`1he City Representative shall have the power, authority and
right, on behalf of the County and City, respectively, and without any further resolution or action
of the Board or Commission to:
l
(a) review, approve and consent, in writing, to documents and requests
required or allowed by the Operator to be `submitted to the County Representative and the City
Representative, as the case may be, pursuant "to this Agreement;
(b) consent to and approve, in,.' writing, actions, events and undertakings by the
Operator or other Persons for which consent and/or approval is required from the County
Representative and/or the City Representative, as the case may be;
(c) make appointments, in writing,''=of individuals or entities required to be
appointed or designated by the County Representative 'and/or the City Representative, as the
case may be, in this Agreement;
(d) sign any and all documents on behalf'`af the County and/or City, as the
case may be, necessary or convenient to the foregoing approvals, consents and appointments;
and
(e) grant written time extensions that extend deadlines or time periods by 180
days and do not otherwise materially affect the rights or obligations of`the Stadium Operator, the
County or the City, as the case may be, under this Agreement. \
However, nothing contained herein shall preclude the County Represe�ative and the City
Representative from seeking Board and/or Commission approval for the d legated authority
contained in 19.10(a) -(e). In addition, and notwithstanding any of thforegoing, the
Government Representatives shall be required to seek Board and/or Commissic&i approval, as
applicable, for any approvals, consents, actions, events or undertakings by any Party gr any other
third parties that would violate, alter, or ignore the substantive provisions of this Aeeement, or
that would create a financial obligation, cost, or expense to the County and/or the City that is
greater than the delegated procurement authority of the County Mayor or City Manager, as set
forth in the applicable County and City Charters, County and City Codes, and any related
administrative or implementing orders, Any consent, approval, decision, determination or
extension under this Agreement by the County Representative or the City Representative shall be
binding on the County and the City, respectively. The Operator may rely upon the authority of
70
the Government Represent tive to act for and bind the County and City, as the case may be,
solely for the matters specifically detailed above. The County and City shall cause its
Government Representative tb comply with all of the provisions of this Agreement.
Section 19.11 Consent bf Parties. Whenever in this Agreement the consent or approval
of a Party is required, such consent or approval:
(a) shall be granted or denied 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 granted 'or denied 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 tequiring Commission approval or consent under (i)
this Agreement, (ii) any other Stadium Agreement, or (iii) 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 i? in writing;
(e) shall apply only to the specific act or transaction so approved or consented
to and shall not relive the other Parties of the obligation o\� obtaining the consenting Party's prior
written consent or approval to any future similar act or transaction; and
(f) if withheld, the withholding Party shallnotify the other relevant Parties in
writing of the reasons for withholding its consent or approval.\
Section 19.12 Headings. The headings in this Agreeme ,t 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.
Section 19.13 General Interpretive Provisions. Whenever the ontext may require, terms
used in this Agreement shall include the singular and plural forms, andpronoun shall include
the corresponding masculine and feminine forms. The term "including' whenever used in any
provision of this Agreement, means including but without limiting e generality of any
description preceding or succeeding such term. Each reference to a P onshall include a
reference to such Person's successors and assigns. All references to " cles", "Sections",
"Schedules" or "Exhibits" shall be references to the Articles, Sections, Schedul s and Exhibits to
this Agreement, except to the extent that any such reference specifically r Pers 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 resolve&.by any rule
or interpretation against the draftsman.
Section 19.14 Severability. Whenever possible, each provision of this Agreement shall
be interpreted in such a manner as to be effective and valid under Applicable Law, but if any
71
provision of this Agreement is held to be prohibited by or invalid under Applicable Law, the
Parties shall, to the extent possible, negotiate a revised provision which (a) complies with
Applicable Law, (b) does not alter any of the substantive rights, obligations or liabilities of any
party under this Agreemen �or any other Stadium Agreement, and (c) confers upon the Parties the
benefits intended to be co>erred by the invalid provision; and the remaining provisions of this
Agreement, if capable of sit�stantial performance, shall be enforced as if this Agreement was
entered into without the invalid provision.
Section 19.15 Absence of Third -Party Beneficiaries. Except with respect to the Team
and the express covenants of the\Government Parties given for the benefit of Secured Parties as
set forth in Section 14.8, nothing ih this Agreement, express or implied, is intended to (a) confer
upon any Person other than the Partes 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.
Section 19.16 Governing Law. Thi?;,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 tb enforce or construe any term of this Agreement
or arising from or relating to this Agreement sh4l 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 Applic ,le Law, including on the basis that such
Applicable Law is discriminatory, retroactive or would serve to amend or alter the terms of this
Agreement.
Section 19.17 Time of Essence. Time is of the essence with respect to the performance
of each of the covenants and obligations contained in this Agreement.
Section 19.18 Relationship of Parties. No partnership 6�\joint venture is established
among the Parties under this Agreement. Except as expressly provid� d in this Agreement or the
other Stadium Agreements, no Party or its officers, elected or appoi,teffi
d ocials, employees,
agents, independent contractors or consultants shall be considered emoyees or agents of any
other Party or to have been authorized to incur any expense on behalf of a . y other Party or to act
for or to bind any other Party. No Party shall be liable for any acts, omiss a.ns or negligence on
the part of the other Parties or their employees, officials, agents, indepdent contractors,
licensees and invitees. 7
Section 19.19 Sovereign Rights. The County and City retain all of t eir respective
sovereign prerogatives and rights as a county or city under State law with respect to Ve planning,
design, construction, development and operation of the Baseball Stadium. It , expressly
understood that notwithstanding any provisions of this Agreement and the Stadium Akreements
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 laws
72
and shall in no way be estopped from withholding or refusing to issue any approvals of
applications for building, zoning, planning or development under present or future laws and
regulations whatever nat-are applicable to the planning, design, construction and development of
the Baseball Stadium, thq Baseball Stadium Site, the Public Infrastructure, the Other
Development or the Parking Facilities, or the operation thereof, or be liable for the same; and
(b) The County and the City shall not by virtue of this Agreement or the other
Stadium Agreements be obligated to grant the other, or the Team, any Team Affiliate, or the
Operator 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 Planning and Zoning Department, DERM, the Commission or any other County,
City, federal or state department or authority, dommittee or agency to grant or leave in effect any
zoning changes, variances, permits, waivers, co%tract 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.
Section 19.20 Antidiscrimination Clause. in accordance with Applicable Law, the
Parties shall not discriminate against any person or group of persons on the basis of race, sex,
religion, national or ethnic origin, age or disability.
Section 19.21 Permitted D
(a) The City has designated the Baseball``;Stadium Site as GI ("Government
Institutional") on the official zoning Atlas of the City, pursuant to the City's Land Development
Regulations, The City has determined that the Baseball Stadiuip development is consistent with
the City's Comprehensive Plan and that it is in accordance with the City's land development
regulations in effect as of the effective date of this Agreement.
(b) For the duration of this Agreement, the City, shall not Downzone the
Baseball Stadium Site or otherwise limit the ability to develop, reconstruct or operate the
Baseball Stadium in accordance with the Development Requirements and nothing shall prohibit
the issuance of further development orders and approvals in conformity with same for the
Baseball Stadium Site. As used herein, "Downzone" shall refer to any chard e in regulations that
govern the use or development of land (including but not limited to compre ensive plans, land
development regulations, subdivision regulations, Existing Zoning and any other such
regulations), which change would have the effect of imposing more restrictive 1 itations on the
use of the Baseball Stadium Site than those which exist on the effective date of thi . Agreement.
Section 19.22 Force Majeure. If any Party shall be delayed in the performance of any
obligation hereunder as a result of a Force Majeure, then the performance of such obligation
shall be excused for the period of such delay and the period for the performance of such
obligation shall be extended by the length of such delay. In response to and during any delay
73
caused by a Force Majeure, the Parties shall at all times act diligently and in good faith to bring
abo t the termination or removal of the Force Majeure as promptly as reasonably possible and
any y seeking an excuse of performance due to such Force Majeure shall work diligently and
in goo with to reduce or eliminate any damage, cost or delay caused by such Force Majeure.
Section 19.23 MLB Requirements, Notwithstanding any other provision of this
Agreement, except for the Iast sentence in this Section, the obligations of the Operator under this
Agreement shal'l\ in all respects be subordinate to the approval requirements and other MLB
Rules and Regulat'ons 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 MLB Rules and Regulations. In the event that any
act or omission taken bey the Operator to comply with MLB Rules and Regulations materially
affects the rights of the 60unty 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, with the assistance,
if necessary, of non-binding 3�nlediation, to amend the terms of this Agreement to neutralize the
effect. The Operator agrees i any event that if compliance by it with MLB Rules and
Regulations results in a failure o�he Operator to fulfill its obligations under this Agreement or
the other Stadium Agreements, the�punty and the City may enforce remedies for the Operator's
failure to fulfill its obligations as provided in this Agreement and the other Stadium Agreements,
including specifically the right to seeka-,injunction or similar relief against the Team to enforce
the provisions of the Non -Relocation Agreement,
Section 19.24 Valid Agreement. Eac , Government Party agrees for the benefit of the
Operator that the Operator shall have the righ to collect damages and otherwise enforce this
Agreement against such Government Party with re. ect to any breach of this Agreement by such
Government Party, including damages from any thi party claims arising from a breach of this
Agreement by a Government Party.
Section 19.25 County Inspector General. The ttention of the Operator is hereby
directed to Section 2-1076 of the County Code establishin , the Miami -Dade County Office of
the Inspector General (the "OIG"), which has the authority and power to investigate County
affairs and review past, present and proposed County programs1\1 ecounts, records, contracts and
transactions. The OIG contract fee shall not apply to this Aeement or any other Stadium
Agreement, and the Team Affiliates shall not be responsible for an\y expense reimbursements or
other amounts payable to the OIG or its contractors.
Section 19.26 Books and Records; Audit, The Operator shal \keep and maintain all
books, records and documents of all kinds in any way related to the Qperator's rights and
obligations under this Agreement for a period of three years following the 0 \sh
tor's fiscal year,
separate and identifiable from its other books, records, and documents. Thunty, including
the Commission Auditor (as provided in Section 2-481 of the County Code)I have the right
to audit the books and records of the Stadium Operator reasonably necessar to determine
compliance with the provisions of this Agreement.
74
\ Section 19.27 Counterparts. This Agreement may be executed in any number of
count rparts with the same effect as if all Parties had executed the same document, All
counterparts shall be construed together and shall constitute one instrument.
CITY OF MIAMI, FLORIDA
By: `
Pedro G. Hern
City Manager
City of Miami
ATTEST:
By:
City Clerk
APPROVED AS TO FORM
AND CORRECTNESS:
City Attorney
APPROVED AS TO INSURANCE
REQUIREMENTS
MIAMI-DADE COUNTY, FLORIDA
By:
George M. Burgess
County Manager
Miami -Dade County
ATTEST:
By:
Clerk of the Board
Risk Management Director
MARLINS STADIUM OPERATOR, LLC
By:_
Name:
Title:
75
:OVED AS TO FORM
LEGAL SUFFICIENCY:
Cou`.cvttorney
F
E
15
E
1E
17
1E
1�
2C
21
EXHIBIT A
Major Necessary Improvements
f Capital Repairs and Replacement Schedule
Schedule of Maintenance
"Pom anent
Schedule
Roofing Membrane � lacement
every
20 years
Exterior Caulking ! Coat(n s
every
5 years
Exterior Painting ! Other 69ating
every
10 years
Interior Finishes
every
7 vears
Scoreboards / Videoboards
every
5 years
Replace FF&E
every
7 years
Concession Equipment
every
7 to 15 years
Field Lighting
eveEy
8 to 15 years
Seat Replacement
every
20 years
Mechanical, Ventilation, & HVAC
every
8 to 12 years
Electrical, Power Supply, & Lighting
every
8 to 12 years
Plumbing & Sprinklers
very
7 to 15 years
Pla ing Field & Sub Systems
ev fy
5 years
Phone System
every15
years
Wa finding, Graphics, & Signage
ever
2 ears
Sound System
every10
rs
Vertical Transportation
every
8 to 12 ears
Renovate Ticket Areas / FF&E
ears
-every10
Plaza Landscape / Hardsca e
every10
years
Retractable Roof Moving Parts
12 to 20 years
-every
Operable Wall Moving Parts
levery
12 to 20 years
Note: Costs may not be evenly distributed among the years shown above.