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HomeMy WebLinkAboutExhibit-SUBTHIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. ATTACHMENT "1" FIRST AMENDMENT TO CONSTRUCTION ADMINISTRATION AGREEMENT DATED APRIL 15, 2009 BY AND AMONG MIAMI-DADE COUNTY, THE CITY OF MIAMI AND MARLINS STADIUM DEVELOPER, LLC This First Amendment to the Construction Administration Agreement (as hereinafter defined) made this day of , 2009 by and among Miami -Dade County, a political subdivision of the State of Florida (the "County"), the City of Miami, a municipal corporation organized under the laws of the State of Florida (the "City") and Marlins Stadium Developer, LLC, a Delaware limited liability company (the "Stadium Developer") regarding the planning. design and construction of the Baseball Stadium and the Public Infrastructure by the Stadium Developer and certain other provisions (the "Amendment"). A. The County, the City and the Stadium Developer previously executed the Construction Administration Agreement (as such term is defined below) regarding the planning, design and construction of the Baseball Stadium (as such term is defined therein) and the Public Infrastructure (as such term is defined therein) by the Stadium Developer and certain other provisions. B. The Parties acknowledge that the Construction Administration Agreement remains in full force and effect, as may be amended by this Amendment. To the extent that the terms and provisions of the Construction Administration Agreement are not expressly amended herein, such other terms and provisions shall be deemed to be in full force and effect, except that in the event of conflict between the Construction Administration Agreement and this Amendment, the provisions of this Amendment shall prevail. All capitalized terms contained in this Amendment which are not defined in this Amendment shall have the respective meanings ascribed to them in the Construction Administration Agreement. C. Article I of the Construction Administration Agreement is hereby amended to add the following definition: "Construction Administration Agreement" or "Agreement" means this Agreement among the County, the City and the Stadium Developer dated as of April 15, 2009, as it may be amended and/or restated. D. The term "Reimbursable Interim Costs Limitation," set forth in Article I of the Construction Administration Agreement is hereby amended to read as follows: 0066's-a� I k;f -- SUS, THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. "Reimbursable Interim Costs Limitation" means (i) if a termination under Section 11.1.1 occurs prior to June 1, 2009: (a) with respect to the Stadium Developer, $14,000,000, (b) with respect to the County, $4,000,000, and (c) with respect to the City, $2,500,000; and (ii) if a termination under Section 11.1.1 occurs between June, 1, 2009 and July 17, 2009: (a) with respect to the Stadium Developer, $10;000,000, (b) with respect to the County, $7,000,000, and (c) with respect to the City, $3,500,000. E. Section 3.5(a) of the Construction Administration Agreement is hereby amended to read as follows: (a) Promptly following but in no event later than thirty (30) days following the approvals of the applications for the Replat and the Stadium and Parking MUSP , and the recordation of the Replat, the City shall convey to the County, and the County shall accept from the City, fee simple title to the Baseball Stadium Site. The conveyance shall be by special warranty deed in the form attached hereto as Exhibit E (the "Warranty Deed"), free and clear of all Liens, leasehold or other possessory interests except for Permitted Exceptions. The Warranty Deed shall provide for reversion of title (i) automatically to the City upon termination of the Agreement pursuant to the provisions of Section 11.1.1; or (ii) at the option of the City, upon termination of the Operating Agreement and the County's failure to secure a replacement professional sports franchise to use the Baseball Stadium within three (3) years after such termination. F. The first paragraph of Section 6.2 of the Construction Administration Agreement is hereby amended to read as follows: County Funding. The County shall issue and sell (a) one or more series of taxable or tax-exempt revenue bonds secured by legally available convention development tax receipts, legally available professional sports tax receipts and legally available tourist development tax receipts and (b) a series of general obligation bonds in the amount of $50,000,000 from the Building Better Communities General Obligation Bond Program (collectively, the "County Bonds") in an aggregate amount sufficient (taking into account issuance costs, required reserves and capitalized interest cost during construction) to deposit before or when such funds are due under the Draw Down Schedule and make available to pay Stadium Project Costs: (x) $347,500,000 of net proceeds into the County Account and (y) $35,000,000 of net proceeds into the County Account, which is being deposited in consideration of, among other things, the Team's annual payment 2 to the County pursuant to Section 7 of the Non -Relocation Agreement. The County, in its sole discretion, shall determine the details of the issuance of the County Bonds, including the use of capitalized interest. If by July 1, 2009, the specific revenue sources identified in (a) and (b) above will not be sufficient or available to permit the County to issue the County Bonds in the amounts necessary to meet its funding obligations set forth in (x) above, the Board, at a publicly noticed meeting, shall consider (i) proceeding with the issuance of the County Bonds and/or other bonds utilizing the same funding sources by issuing debt in future tranches or one or more additional funding sources in an amount necessary to meet its funding obligations set forth in (x) above; or (ii) terminating this Agreement in accordance with Section 11.1.1. If the County has not terminated this Agreement on or before July 17, 2009 pursuant to Section 11.1.1, the County hereby covenants to fund the amounts set forth in (x) and (y) above from (i) the sources identified in (a) and (b) above or (ii) any other legally available Non Ad Valorem Revenues, subject to the last two paragraphs of this Section 6.2 (clause (ii) being referred to herein as the `Non -Ad Valorem Funding Obligation"). The County may, at its option, use any other funding sources available to it to satisfy its obligations under this Section 6.2. z 4-: wz �w zoav Qoeu� wzvo �t—oz OF'0'w The balance of Section 6.2 of the Construction Administration Agreement shall remain unchanged. F. Section 6.3 of the Construction Administration Agreement is hereby amended to read as follows: City Funding. The City shall issue and sell one or more series of taxable or tax-exempt revenue bonds backed by the convention development tax ("City Bonds"), and shall remit such other funds, in an aggregate amount sufficient (taking into account issuance costs, required reserves and capitalized interest during construction) to deposit $13,500,000 of net proceeds into the City Account. The City, in its sole discretion, shall determine the details of the issuance of the City Bonds, including the use of capitalized interest. The City shall make the deposit described in this Section 6.3 on July 17, 2009; so long as in the interim the City advances by deposit into the City Account such amounts as are required to make timely disbursements from the City Account in accordance with the Draw Down Schedule. The City Bonds will not be issued in whole or in part under Parts II, III or V of Chapter 159 of the Florida Statutes. G. Section 6.7 of the Construction Administration Agreement is hereby amended to read as follows: 3 Advancement of Monies. The Parties acknowledge that expenses have been incurred and monies will be required to fund Stadium Project Costs prior to the issuance of the Bonds and other funding contemplated by Section 6.2 and 6.3. Accordingly, the County and the City shall advance monies to reimburse the Stadium Developer for expended Stadium Project Costs (subject to Section 7.1(b)) and to fund future Stadium Project Costs at such times and in such amounts as are provided in the Draw Down Schedule, provided that any increased costs in an amended Draw Down Schedule shall be reasonably necessary to complete the Baseball Stadium Project in accordance with the Construction Schedule upon their receipt of, and in accordance with the directions set forth in, a properly completed and executed funding request in the form of Exhibit L. Any such advances shall be made by the County and the City in proportion to and in accordance with their contributions under Sections 6.2 and 6.3, and shall be reimbursed to the applicable Government Party from its Funding Account upon the deposit of its Bond proceeds into such Funding Account. Advances under this Section 6.7 shall only be payable from the permitted sources identified in Sections 6.2 and 6.3. If the County or City, respectively, has not issued the County Bonds or City Bonds by the date on which payment for construction related insurance and construction mobilization costs are due, which date is shown on the Draw Down Schedule, then the County or City, respectively, shall advance to Stadium Developer funds for such insurance and mobilization costs in accordance with this Section 6.7 and shall, when the County Bonds are issued, reimburse itself for such advances from the proceeds of the County Bonds. Notwithstanding the foregoing, prior to July 17, 2009, no Party shall be obligated to advance funds not identified in the Schedule of Eligible Reimbursable Expenses, and in no event any amounts in excess of its respective Reimbursable Interim Costs Limitation. Z? --- W Z zmv <o`euQ wzVO Uo0Z t-v,m< H. Section 11.1.1 of the Construction Administration Agreement is hereby amended to read as follows: Termination for Convenience. Any Party shall have the right at any time prior to the earlier of (i) July 15, 2009, or (ii) the date that the County executes the final bond purchase agreements with respect to the County Bonds secured by the Convention Development Tax and the County Bonds secured by the Professional Sports Franchise Facilities Tax/Tourist Development Tax, by written notice to the other Parties, to terminate this Agreement without cause and/or for the Party's convenience. In the case of the City, such tennination shall be 0 exercised only after approval by the Commission. In addition, if the County has not closed the County Bonds secured by the Convention Development Tax and the County Bonds secured by the Professional Sports Franchise Facilities Tax/Tourist Development Tax by 1:00 p.m. (DST), July 17, 2009, the County shall have the right by written notice to the other Parties to terminate this Agreement without cause and/or for the County's convenience on or before July 17, 2009. Upon a termination under this Section 11.1.1 all Parties shall be relieved of all liabilities under this Agreement (except with respect to any breaches by any Party prior to termination). In such event, each of the County, City and Stadium Developer shall be responsible for Reimbursable Interim Costs up to their respective Reimbursable Interim Costs Limitation. In the event any of the three Parties has expended more than its respective Reimbursable Interim Costs Limitation, the Party or Parties, as the case may be, having spent less than their respective Reimbursable Interim Costs Limitation shall reimburse such Party all amounts necessary to reduce that Party's total portion of the Reimbursable Interim Costs to its respective Reimbursable Interim Costs Limitation. If, at the time of calculation, the total of the Reimbursable Interim Costs expended are less than $20,500,000, then each Party shall be reimbursed in proportion to the percentage that its respective Reimbursable Interim Costs Limitation bears to $20,500,000. (By way of example, if through the date of termination (and that date is after June 1, 2009), $5,125,000 in Reimbursable Interim Costs were expended, and the County had spent $2,000,000, the City had spent $900,000, and the Stadium Developer spent $2,225,000, then the Stadium Developer would reimburse the County $250,000 and reimburse the City $25,000, such that all Parties would end up with a final contributions of $2,500,000 by the Stadium Developer, $1,750,000 by the County and $875,000 by the City.) aZ a�W zmv z zzvw �°aZa p O='�w �L �an� I. Section 15.22 of the Construction Administration Agreement is hereby amended to read as follows: If any Party shall be delayed in the performance of any obligation hereunder as a result of a Force Majeure, then the performance of such obligation shall be extended by the length of such delay. In response to and during any delay caused by a Force Majeure, the Parties shall at all times act diligently and in good faith to bring about the termination or removal of the Force Majeure as promptly as reasonably possible and any party seeking an excuse of performance due to such Force Majeure shall work diligently and in good faith to reduce or eliminate any damage, cost or delay caused by such Force Majeure. Without limiting the foregoing, if a Party fails to meet a deadline specified in this Agreement due to another Party's failure to meet a prior and related deadline (or due to an event covered by Section 3.6(f), such subsequent deadline shall be extended by the number of days the delay was attributable to the prior deadline failure, and the 5 Party failing to meet the prior deadline shall not be relieved of liability for such breach. The Parties agree that an event of Force Majeure (other than a court order that (a) invalidates the issuance of the County Bonds or City Bonds or bonds issued by the City to fund the construction of the Parking Facilities, (b) precludes or prohibits the use of County and/or City funds in connection with the construction of the Baseball Stadium or the Parking Facilities, (c) prohibits or materially impairs or restricts the right of the Team to use the Baseball Stadium for MLB Home Games or the Operator to operate the Baseball Stadium except if such arises due to the wrongful act or omission of a Team Affiliate or from a Team Affiliate's default under any agreements to which it is a party, or (d) prohibits or materially restricts the construction of the Baseball Stadium) shall not serve as an excuse to any Party's failure to deposit funds as required under Sections 6.2, 6.3, 6.4 and 6.7. Notwithstanding anything herein to the contrary. the Parties agree that in the event that any order is entered in the matter of Graciela Solares and Elvis Cruz v. The City of Miami and Miami -Dade County, Circuit Court -Case No.: 09-15404 CA 25, or any other lawsuit, which prevents, prohibits or enjoins any Party's performance of any material obligation under this Agreement, then the performance of each of the Party's funding obligation under Sections 6.2, 6.3, 6.4 and 6.7 and under the City Parking Agreement, shall be extended during the time of the delay caused by such order. J. Exhibit E to the Construction Administration Agreement is hereby deleted in its entirety and replaced with a new Exhibit E in substantially the form attached to this Amendment. Pedro Hernandez City Manager City of Miami ATTEST: 0 City Clerk Approved as to Insurance Requirements: By: LeeAnn Brehm, Director Risk Management George M. Burgess County Manager Miami -Dade County ATTEST: 0 Clerk of the Board 0 Z v� r� z0°u ° F�ZF. w�t7p 0Z CErc;w r m V v�W4 APPROVED AS TO FORM AND CORRECTNESS: City Attorney City Clerk MARLINS STADIUM DEVELOPER, LLC By: Name: Title: APPROVED AS TO FORM LEGAL SUFFICIENCY: Assistant County Attorney Clerk of the Board D 7 wz ww 4w= z�V z Q�VQ zOzcF. wzG7p p�a:w OFA= F ci mt THIS SPECIAL WARRANTY DEED made this day of , 2009 by and between THE CITY OF MIAMI, a municipal corporation of the State of Florida (the "Grantor"), whose address is 3500 Pan American Drive, Miami, Florida 33133, a party of the first part, and MIAMI -DARE COUNTY, a political subdivision of the State of Florida, and its successors in interest (the "Grantee"), whose address is 111 N.W. I" Street, Miami, Florida 33128-1970, party of the second part, WITNESS: That the Grantor, for and in consideration of the sum of Ten Dollars ($10.00) to it in hand paid by the Grantee, and other good and valuable consideration, the receipt of which is hereby acknowledged, does hereby grant, bargain, sell and convey to the Grantee, the following land (the `Property") laying and being in Miami -Dade County, Florida: Tracts B and C, Stadium Plat, according to the plat thereof as recorded in Plat Book 168 at Page 25, of the Public Records of Miami -Dade County, Florida. Containing 739,438 square feet, or 16.975 acres more or less. This Deed is subject to the restrictions, covenants and provisions of the restrictive covenant attached hereto and incorporated herein by reference as Attachment "A" and Grantee, for itself and its successors in title to the Property hereby conveyed, agrees to be bound by and comply with the terms and provisions thereof. TO HAVE AND TO HOLD THE SAME, together with all and singular appurtenances thereto, belonging or in any way incident or appertaining, forever; and the Grantor will defend the title thereto against all persons claiming by, through or under the Grantor. IN WITNESS WHEREOF, Grantor has executed this instrument, and has caused same to be executed by its City Manager, and has caused the same to be attested by its City Clerk and its Corporate Seal hereon to be impressed on this, the day and year first above written. W Z "EXHIBIT E" E `mu Z Return to: Cit} Manager G.7 p� V C 3500 Pan American Drive Q , J .. Miami. Florida 33128-1970 Q Q Z E.,. This instrument prepared by, Z W Z U or under the direction of, A ,Julie 0. Bru. Esq. City Attorney Citv Miami O F a W ►, G� of 444 S.W. 2"" Avenue, Suue 945 = rriV Miami, Florida 33130-1910 M Q SPECIAL WARRANTY DEED THIS SPECIAL WARRANTY DEED made this day of , 2009 by and between THE CITY OF MIAMI, a municipal corporation of the State of Florida (the "Grantor"), whose address is 3500 Pan American Drive, Miami, Florida 33133, a party of the first part, and MIAMI -DARE COUNTY, a political subdivision of the State of Florida, and its successors in interest (the "Grantee"), whose address is 111 N.W. I" Street, Miami, Florida 33128-1970, party of the second part, WITNESS: That the Grantor, for and in consideration of the sum of Ten Dollars ($10.00) to it in hand paid by the Grantee, and other good and valuable consideration, the receipt of which is hereby acknowledged, does hereby grant, bargain, sell and convey to the Grantee, the following land (the `Property") laying and being in Miami -Dade County, Florida: Tracts B and C, Stadium Plat, according to the plat thereof as recorded in Plat Book 168 at Page 25, of the Public Records of Miami -Dade County, Florida. Containing 739,438 square feet, or 16.975 acres more or less. This Deed is subject to the restrictions, covenants and provisions of the restrictive covenant attached hereto and incorporated herein by reference as Attachment "A" and Grantee, for itself and its successors in title to the Property hereby conveyed, agrees to be bound by and comply with the terms and provisions thereof. TO HAVE AND TO HOLD THE SAME, together with all and singular appurtenances thereto, belonging or in any way incident or appertaining, forever; and the Grantor will defend the title thereto against all persons claiming by, through or under the Grantor. IN WITNESS WHEREOF, Grantor has executed this instrument, and has caused same to be executed by its City Manager, and has caused the same to be attested by its City Clerk and its Corporate Seal hereon to be impressed on this, the day and year first above written. Signed, Sealed and delivered n the presence of: ATTEST: "City„ CITY OF MIAMI, a Florida municipal corporation C Priscilla A. Thompson, City Clerk Pedro G. Hernandez, City Manager APPROVED AS TO FORM AND CORRECTNESS: Julie 0. Bru City Attorney STATE OF FLORIDA ) COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this day of , 2009, by , who is personally known to me or who has produced as identification and who did/did not take an oath. NOTARY PUBLIC Printed Name My Commission expires: I F W XMW < Qd WZvO aZ paW GF.1W S�<F- F cn C0 4 THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. Attachment A Restrictive Covenant The following covenants, restrictions and provisions shall constitute covenants running with the land hereby conveyed (the "Property") for the term described in Section 5 below and are intended for the benefit of the City of Miami, a municipal corporation of the State of Florida (the "Grantor"), and shall be binding upon Miami -Dade County, Florida, a political subdivision of the State of Florida (the "Grantee"), and its successors in interest to title in the Property or any portion thereon. By accepting this Special Warranty Deed, Grantee agrees to be bound by such covenants, restrictions and provisions: 1. Application: The restrictions contained herein will apply to any use or development of the Property. 2. Limitation of Development: Development of the Property shall be limited to a baseball stadium together with: (a) ancillary office space; (b) ancillary retail, food and beverage space; (c) ancillary entertainment space; and (d) ancillary plazas and other public areas. 3. Restriction: The use of the Property shall be limited to those activities referenced in Section 2 above and other uses permitted under the Operating Agreement described in Section 5 below, as such agreement may be amended, copy of which may be obtained from the City Clerk of the City of Miami. 4. Term: The restrictions, covenants, conditions and agreements contained in this Deed shall run with the land and shall be binding and shall remain in full force and effect until the title to the Property reverts to the Grantor, as provided in Section 5 below. 5. Violation of Covenant, Reversion of Title to Property: The title to the Property shall revert to the Grantor (i) automatically upon termination for convenience pursuant to Paragraph 11.1.1 of the Construction Administration Agreement between the City of Miami, Miami -Dade County and Marlins Stadium Developer, LLC dated April 15, 2009, as such agreement may be amended; or, (ii) at the option of the Grantor, upon termination of the Operating Agreement between the City of Miami, Miami -Dade County and Marlins Stadium Operator, LLC dated April 15, 2009, as such agreement may be amended, and the Grantee's failure to secure a replacement professional sports franchise to use the Property within three (3) years after such termination. 6. Modifications; Amendments: The restrictions, covenants, conditions and agreements contained in this Deed may only be modified by a written agreement signed by the Grantor or its successor. 10 SUBSTITUTED ATTACHMENT "1" FIRST AMENDMENT TO CONSTRUCTION ADMINISTRATION AGREEMENT DATED APRIL 15, 2009 BY AND AMONG MIAMI-DADE COUNTY, THE CITY OF MIAMI AND MARLINS STADIUM DEVELOPER, LLC This First endment to the Construction Administration Agreement (as hereinafter defined) made this day of , 2009 by and among Miami -Dade County, a political subdivision of e State of Florida (the "County"), the City of Miami, a municipal corporation organized un the laws of the State of Florida (the "City") and Marlins Stadium Developer, LLC, a Delaware imited liability company (the "Stadium Developer") regarding the planning, design and construct' n of the Baseball Stadium and the Public Infrastructure by the Stadium Developer and certain o er provisions (the "Amendment"). A. The County, the City d the Stadium Developer previously executed the Construction Administration greement (as such term is defined below) regarding the planning, design and construe n of the Baseball Stadium (as such term is defined therein) and the Public Infrastruc e (as such term is defined therein) by the Stadium Developer and certain other provisi s. B. The Parties acknowledge that the Const ons ction Administration Agreement remains in full force and effect, as may be amended this Amendment. To the extent that the terms and provisions of the Construction A\�ian Agreement are not expressly amended herein, such other terms and probe deemed to be in full force and effect, except that inthe event t between the Construction Administration Agreement and this Amenrovisions of this Amendment shall prevail. All capitalized terms cont's Amendment which are not defined in this Amendment shall have the re ings ascribed to them in the Construction Administration Agreement. C. Article I of the Construction Administration Agreement is here`, amended to add the following definition: \ "Construction Administration Agreement" or "Agreement" mean% this Agreement among the County, the City and the Stadium Developer dated as of April 15, 2009, as it may be amended and/or restated. D. The term "Reimbursable Interim Costs Limitation," set forth in Article I0 the Construction Administration Agreement is hereby amended to read as follows: SUBSTITUTED "Reimbursable Interim Costs Limitation" means (i) if a termination under Section 11.1.1 occurs prior to June 1, 2009: (a) with respect to the Stadium Developer, $14,000.000, (b) with respect to the County, $4,000,000, and (c) with respect to the City, $2,500,000; and (ii) if a termination under Section 11. LI occurs between June, 1, 2009 and July -�] 7, 2009: (a) with respect to the Stadium Developer, $10,000,000, (b) with respect to the County, $7,000,000, and (c) with respect to the City, $3,500,000. E. SeNon 3.5(a) of the Construction Administration Agreement is hereby amended to read follows: (a) Promptly following but in no event later than thirty (30)l following the approvals of the applications for the Replat and the S diem and Parking MSP ,and the recordation of the Replat, the *ty shall convey to the County, and the County shall accept from th City, fee simple title to the Baseball Stadium Site. The conveyance shall be by special warranty deed in the form attached hereto as xhibit E (the "Warranty Deed"), free and clear of all Liens, leaseh d or other possessory interests except for Permitted Exceptions. The Warranty Deed shall provide for reversion of title i auto atically to of at +he direefiaR e the City upon termination of the A eement ursuant to the provisions of Section 11.1.1: or 60 at the o tion of the City. upon termination of if-(i�-the Operating Agreement ' and {+the County's fai4s failure to secure a replaceme professional sports franchise to use the Baseball Stadium within three (3) years after such termination. F. The first paragraph of Section 6.2 of the Construction Administration Agreement is hereby amended to read as follows: County Funding. The County shall issuean ell (a) one or more series of taxable or tax-exempt revenue bon secured by legally available convention development tax rece\awmmn available professional sports tax receipts and legal tourist development tax receipts and (b) a series obligation bonds in the amount of $50,000,000 from Better Communities General Obligation . Bon (collectively, the "County Bonds") in an aggreg sufficient (taking into account issuance costs, required reserves and capitalized interest cost during construction) to deposit before or when such funds are due under the Draw Down Schedule and make available to pay Stadium Project Costs: (x) $347,500,000 of net proceeds into the County Account and (y) $35,000,000 of net proceeds into the County Account, which is being deposited in SUBSTITUTED consideration of, among other things; the Team's annual payment to the County pursuant to Section 7 of the Non -Relocation Agreement. The County, in its sole discretion, shall determine the details of the issuance of the County Bonds, including the use of capitalized interest. If by July 1, 2009, the specific revenue sources identified in (a) and (b) above will not be sufficient or available to permit the County to issue the County Bonds in the amounts necessary to meet its funding obligations set forth in (x) above, the Board, at a publicly noticed meeting, shall consider (i) proceeding with the issuance of the County Bonds and/or other onds utilizing the same funding sources by issuing debt in future ches or one or more additional funding sources in an amount nec sary to meet its funding obligations set forth in (x) above; or (ii) to inating this Agreement in accordance with Section 11.1.1. If the unty has not terminated this Agreement on or before July 4- l7, 2 9 pursuant to Section 11.1.1, the County hereby covenants to d the amounts set forth in (x) and (y) above from (i) the source identified in (a) and (b) above or (ii) any other legally available on Ad Valorem Revenues, subject to the last two paragraphs o *s Section 6.2 (clause (ii) being referred to herein as the "Non d Valorem Funding Obligation"). The County may, at its opti , use any other funding sources available to it to satisfy its obligatio s under this Section 6.2. The balance of Section 6.2 of the Cistruction Administration Agreement shall remain unchanged. F. Section 6.3 of the Construction Administratl, Agreement is hereby amended to read as follows: City Funding_ The City shall issued sell one or more series of taxable or tax-exempt revenue b ds backed by the convention development tax ("City Bonds"), shall remit such other funds, in an aggregate amount sufficient ( i g into account issuance costs, required reserves and capitalized i serest during construction) to deposit $13,500,000 of net proceeds to the City Account. The City, in its sole discretion, shall dete ine the details of the issuance of the City Bonds, including the use of capitalized interest. The City shall make the deposit descri d in this Section 6.3 prate on July X17, 2009; so long as in the inte 'm the City advances by deposit into the City Account such amoun as are required to make timely disbursements from the City Account in accordance with the Draw Down Schedule. The City Bonds will not be issued in whole or in part under Parts II, III or V of Chapter 159 of the Florida Statutes. 3 SUBSTITUTED G. Section 6.7 of the Construction Administration Agreement is hereby amended to read as follows: Advancement of Monies. The Parties acicnowledee that expenses have been incurred and monies will be required to fund Stadium Project Costs prior to the issuance of the Bonds and other funding contemplated by Section 6.2 and 6.3. Accordingly; the County and the City shall advance monies to reimburse the Stadium Developer for expended Stadium Project Costs (subject to ction 7.1(b)) and to fund future Stadium Project Costs at such ti s and in such amounts as are provided in the Draw Down Sche ule, provided that any increased costs in an amended Draw Down chedule shall be reasonably necessary to complete the Baseball tadium Project in accordance with the Construction Schedule on their receipt of, and in accordance with the directions set orth in, a properly completed and executed funding request in the f of Exhibit L. Any such advances shall be made by the County an the City in proportion to and in accordance with their contributions under Sections 6.2 and 6.3, and shall be reimbursed to the ap icable Government Party from its Funding Account upon the depo it of its Bond proceeds into such Funding Account. Advances unde this Section 6.7 shall only be payable from the permitted sources entified in Sections 6.2 and 6.3. If the County or City, respective , has not issued the County Bonds or City Bonds by the date on hich payment for construction related insurance and constructio mobilization costs are due, which date is shown on the DrawDo Schedule, then the County or City, respectively, shall advance to dium Developer funds for such insurance and mobilization costs ' accordance with this Section 6.7 and shall, when the Coun Bonds are issued, reimburse itself for such advances from the p ceeds of the County Bonds. Notwithstanding the foregoing, prior t July 17, 2009, no Party shall be obligated to advance funds not ' entified in the Schedule of Eligible Reimbursable Expenses, and i no event any amounts in excess of its respective Reimbursable erim Costs Limitation. H. Section 11.1.1 of the Construction Administration Agreement is he amended to read as follows: \ Termination for Convenience. Any Party shall havb the right at any time prior to the earlier of (i) July 15, 2009, or aB4 (ii) the date that the County executes the final bond purchase agreements with respect to the County Bonds secured by the Convention Development Tax and the County Bonds secured by the Professional Sports Franchise Facilities Tax/Tourist Development Tax, by written notice to the 4 SUBSTITUTED other Parties, to terminate this Agreement without cause and/or for the Party's convenience. In the case of the City, such termination shall be exercised only after approval by the Commission. In addition. if the County has not closed the Count\- Bonds secured bti the Convention Development Tai; and the COi]nn, Bonds secured by the Professional Sports Franchise Facilities Tax/Tourist Development Tax by 1:00 p.m. (DST). July 17. 2009. the Count shall have the right by written notice to the other Parties to terminate this Agreement \vithout cause and/or for the Countv's nvenience on or before July 17. 2009. Upon su& a termination un er this Section 11.1.1 all Parties shall be relieved of all liabi ties under this Agreement (except with respect to any breach by any Party prior to termination). In such event, each of the Coun , City and Stadium Developer shall be responsible for Reimbursa e Interim Costs up to their respective Reimbursable Interim Costs imitation. In the event any of the three Parties has expended more than its respective Reimbursable Interim Costs Limitation, the P or Parties, as the case may be, having spent less than their resp tive Reimbursable Interim Costs Limitation shall reimburse such arty all amounts necessary to reduce that Party's total portion o the Reimbursable Interim Costs to its respective Reimbursable erim Costs Limitation. If, at the time of calculation, the total the Reimbursable Interim Costs expended are less than $20, 0,000, then each Party shall be reimbursed in proportion to th percentage that its respective Reimbursable Interim Costs Limita 'on bears to $20,500,000. (By way of example, if through the date o termination (and that date is after June 1, 2009), $5,125,000 in R ' bursable Interim Costs were expended, and the County had spent 2,000,000, the City had spent $900,000, and the Stadium Developer ent $2,225,000, then the Stadium Developer would reimburse the unty $250,000 and reimburse the City $25,000, such that all Parties ould end up with a final contributions of $2,500,000 by the Sta . Developer, $1,750,000 by the County and $875,000 by the City.) I. Section 15.22 of the Construction Administration Agreement is hy amended to read as follows: If any Party shall be delayed in the performance of any obligation hereunder s a result of a Force Majeure, then the performance of such obligation shall be extended by the le gth of such delay. In response to and during any delay caused by a Force Majeure, the Parties hall at all times act diligently and in good faith to bring about the termination or removal of e Force Majeure as promptly as reasonably possible and any parry seeking an excuse of perform e due to such Force Majeure shall work diligently and in good faith to reduce or eliminate any d ge, cost or delay caused by such Force Majeure. Without limiting the foregoing, if a Party fails o meet a deadline specified in this Agreement due to another Party's failure to meet a prior an 5 SUBSTITUTED elated deadline (or due to an event covered by Section 3.6(f)), such subsequent deadline shall be e tended by the number of days the delay was attributable to the prior deadline failure. and the P failing to meet the prior deadline shall not be relieved of liability for such breach. The Partie agree that an event of Force Majeure (oilier than a court order that (a) invalidates the issuattc of the Countv Bonds or City Bonds or bonds issued by the Citv to fund the construction of the Pa int Facilities, b7 precludes or Prohibits the use of County andior Cit-,• hinds in connection N -ith the construction of the Baseball Stadium or the Parkina Facilities. (cprohibits or materially t airs or restricts the richt of the Team to use the Baseball Stadium for MLB Horne Games o the Operator to operate the Baseball Stadium except if such arises due to the Baseball Stadium) sha of serve as an excuse to any Party's failure to deposit funds as required under Sections 6.2, 6.3, and 6.7. Notwithstanding am d-dng herein to the contrary. the Parties agree that in the event tha anv order is entered in the matter of Graciela Solares and Elvis Cruz v. The City of Miami d Miami -Dade County Circuit Court -Case No.: 09-15404 CA 25 or anv other lawsuit which revents, prohibits or enjoins any Party's performance of any obli ation under this Agreement."Itben the erforrnance of all Parties- obligations including. but not limited to. those under Sections .2 6.3. 6.4 and 6.7 shall be extended by the lenath of the delay caused by such order. no SUBSTITUTED J. Exhibit E to the Construction Administration Agreement is hereby deleted in its entirety. and replaced with a new Exhibit E in substantially the form attached to this Amendment. PedrLH e d e z City anage City of Miami ATTEST: By: City Clerk Approved as to Insurance Req By: LeeAnn Brehm, Director Risk Management APPROVED AS TO FORM AND CORRECTNESS: City Attorney City Clerk MARLINS STADIUM DEVELOPER, LLC By:_ Name: Title: George M. Burgess County Manager Miami -Dade County ATTEST: Clerk of the Board APPROVED AS TO FORM AND LEGAL SUFFICIENCY: County Attorney Clerk dfthe Board 7 SUBSTITUTED K urn to: City Manager 3500 n American Drive Miami, lorida 33128-1970 This ins trum t prepared by, or under the dir tion of, Julie 0. Bru, Esq. Citv Anomev City ofMiami 444 S.W. 2n°Avenue, S 945 Miami, Florida 33130-19] "EXHIBIT E" SPECIAL WARRANTY DEED THIS SPECIAL TY DEED made this day of , 2009 by and between THE CITY OF M , a municipal corporation of the State of Florida (the "Grantor"), whose address is 3500 Pan American D 've, Miami, Florida 33133, a party of the first part, and MIAMI-DADE COUNTY, a political subdivision f the State of Florida, and its successors in interest (the "Grantee"), whose address is I I 1 N.W. I" Street, iami, Florida 33128-1970, party of the second part, WITNESS: That the Grantor,or and in consideration of the sum of Ten Dollars ($10.00) to it in hand paid by the Grantee, and other go d and valuable consideration, the receipt of which is hereby acknowledged, does hereby grant, bargain, 11 and convey to the Grantee, the following land (the `Property") laying and being in Miami -Dade Co ty, Florida: Tracts B and C, Stadium Plat, according tot plat thereof as recorded in Plat Book 968 at Page 25, of the Public Records of iami-Dade County, Florida. Containing 739,438 square feet, or 16.975 acres\nore or less. This Deed is subject to the restrictions, covenants anX provisions of the restrictive covenant attached hereto and incorporated herein by reference as Attachm t "A" and Grantee, for itself and its successors in title to the Property hereby conveyed, agrees to be bou by and comply with the terms and provisions thereof. TO HAVE AND TO HOLD THE SAME, together with all and gular appurtenances thereto, belonging or in any way incident or appertaining, forever; and the Grantor ilJ defend the title thereto against all persons claiming by, through or under the Grantor. IN WITNESS WHEREOF, Grantor has executed this instrument, and hN caused same to be executed by its City Manager, and has caused the same to be attested by its City Cle and its Corporate Sea] hereon to be impressed on this, the day and year first above written. Signed, Sealed and delivered n the presence of: "City" CITY OF MIAMI, a Florida municipal ATTEST: corporation s 4`12, il P SUBSTITUTED Attachment A Restrictive Covenant The following covenants, restrictions and provisions shall constitute covenants running Wit h eland hereby conveyed (the "Property") for the term described in Section 5 below and are intend for the benefit of the City of Miami, a municipal corporation of the State of Florida (the "Grantor' , and shall be binding upon Miami -Dade County, Florida, a political subdivision of the State of F ida (the "Grantee"), and its successors in interest to title in the Property or any portion there . By accepting this Special Warranty Deed, Grantee agrees to be bound by such covenants, restri tions and provisions: 1. A lica 'on: The restrictions contained herein will apply to any use or development of the Pro%Ofyl 2. Limitatioevelo meat: Development of the Property shall be limited to a baseball stadium, tadium gether with: (a) ancillary office space; (b) ancillary retail, food and beverage space; (c)cillary entertainment space; and (d) ancillary plazas and other public areas. Restriction: The use of tx Property shall be limited to those activities referenced in Section 2 above and other w s permitted under the Operating Agreement described in Section 5 below, as such agree ent may be amended, copy of which may be obtained from the City Clerk of the City o Miami. 4. Term: The restrictions, covenants, c� shall run with the land and shall be b until the title to the Property reverts to tions and agreements contained in this Deed ina and shall remain in full force and effect ion of Covenant, Reversion of Title`t as provided in Section 5 below. shall revert to the Grantor (i) automaticall upon pursuant to Paragraph 11.1.1 of the Construction d the City of Miami, Miami -Dade County and Marlin April 15, 2009, as such agreement may be amende Grantor, upon termination of the Operating Agreem Miami -Dade County and Marlins Stadium Operator, such agreement may be amended, and the Grantee's erty: The title to the Property termination for convenience ministration Agreement between Stadium Developer, LLC dated or, (ii) at the option of the ent etween the City of Miami, LL dated April 15, 2009, as failure o secure a replacement professional sports franchise to use the Property within thr (3) years after such termination. 6. Modifications; Amendments: The restrictions, covenants, onditions and agreements contained in this Deed may only be modified by a wnittV agreement signed by the Grantor or its successor. 10