HomeMy WebLinkAboutExhibitBASEBALL STADIUM AGREEMENT
(Orange Bowl)
MIAMI-DADE COUNTY, FLORIDA
CITY OF MIAMI, FLORIDA
FLORIDA MARLINS, L.P.
February , 2008
TABLE OF CONTENTS
ARTICLE I DEFINITIONS 1
ARTICLE II REPRESENTATIONS 8
Section 2.01 Representations of the County 8
Section 2.02 Representations of the City 8
Section 2.03 Representations of the Team 9
Section 2.04 Continued Effectiveness 10
ARTICLE III BASEBALL FRANCHISE 10
Section 3.01 Discontinuation of Relocation Discussions 10
Section 3.02 Non -Relocation Agreement 11
ARTICLE IV DEVELOPMENT 11
Section 4.01 Baseball Stadium Site 11
Section 4.02 Stadium Project Budget 19
Section 4.03 Project Program Statement 20
Section 4.04 Construction Administration Agreement 20
Section 4.05 Design and Construction Professionals 20
Section 4.06 Plans and Specifications 22
Section 4.07 Permits and Zoning 23
Section 4.08 Construction 25
Section 4.09 Cost Overruns 26
Section 4.10 Stadium Project Completion Date 27
Section 4.11 Other Development 27
ARTICLE V INFRASTRUCTURE AND PARKING 30
Section 5.01 Public Infrastructure 30
Section 5.02 Parking 30
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ARTICLE VI FUNDING 33
Section 6.01 Sources of Funds 33
Section 6.02 County Funding 33
Section 6.03 City Funding 33
Section 6.04 Team Funding 33
Section 6.05 [NOT USED.' 34
Section 6.06 Construction Fund Disbursement Procedure 34
Section 6.07 Stadium Developer to Keep Funding in Balance 35
Section 6.08 Public Infrastructure Funding 35
Section 6.09 State Funding 36
ARTICLE VII MANAGEMENT OF BASEBALL STADIUM 36
Section 7.01 Management Agreement 36
Section 7.02 Term 36
Section 7.03 Community Events 37
Section 7.04 Team Rent 37
Section 7.05 Maintenance and Repairs; Operating Expenses 37
Section 7.06 Capital Improvements 38
Section 7.07 Capital Reserve Fund 38
Section 7.08 Ownership of Team Revenues 39
Section 7.09 Ownership of Promotional Rights 39
Section 7.10 Intangible and Ad Valorem Taxes 39
Section 7.11 Assignments and Liens 40
Section 7.12 Targeted Taxes 40
Section 7.13 Insurance 40
Section 7.14 Community Benefit Obligations 41
Section 7.15 Annual Reports 43
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Section 9.01
Section 9.02
Section 9.03
Section 9.04
Section 9.05
Section 8.01
Section 8.02
Section 8.03
Section 8.04
ARTICLE VIII DEADLINE DATES 43
Impact of Deadline Dates 43
Execution and Delivery of Stadium Agreements 43
County Funding 44
City Funding 44
ARTICLE IX REMEDIES 44
Termination Rights in General 44
Termination Rights of County and City 44
Termination Rights of the Team 45
Remedies 46
Mediation and Arbitration 46
ARTICLE X MISCELLANEOUS
Section 10.01 Parties and Interests
Section 10.02 Notices
Section 10.03 Amendments and Waivers
Section 10.04 Governing Law
Section 10.05
Section 10.06
Section 10.07
Section 10.08
Section 10.09 MLB Requirements
Section 10.10 Legal Effectiveness
Section 10.11 Relationship of County and Team
Section 10.12 Force Majeure
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47
48
49
49
Captions 49
Counterparts 50
Assignment 50
Sovereign Rights 50
51
51
52
52
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EXHIBITS
Exhibit A —
Exhibit B —
Exhibit C —
Exhibit D —
Exhibit E —
Entire Site
Stadium Project Budget
Sources of Funds
Project Program Statement
Initial Draw Down Schedule
A-1
B-1
C-1
D-1
E- 1
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BASEBALL STADIUM AGREEMENT
This is an agreement, dated , 2008 ("Agreement"), among MIAMI-
DADE COUNTY, FLORIDA, CITY OF MIAMI, FLORIDA and FLORIDA MARLINS,
L.P.
Recitals:
The parties have agreed upon and wish to record their respective undertakings for
the long-term commitment of the Florida Marlins Major League Baseball franchise to the City of
Miami and Miami -Dade County.
ARTICLE I
DEFINITIONS
"Affordable Seats" means at least 81,000 regular season individual game tickets priced at no
more than $15 per ticket (in April 1, 2011 dollars to be thereafter reasonably adjusted as
specified in the Management Agreement).
"Assurance Agreement" means an agreement to be entered into by and among the County, the
City and the Team with respect to the Team's obligation to guarantee the Stadium Developer's
obligations under the other Stadium Agreements.
"Baseball Events" means the Team's home games, training, practices, exhibition games, and
other Major League Baseball or Team sponsored baseball clinics, fan or sponsor theme events,
press conferences or other Major League Baseball or Team sponsored, baseball or Team fan
related events, activities, promotions or sales of baseball or Team fan related products, services,
information or media content relating to such events, activities, or promotions held at or
emanating from the Baseball Stadium.
"Baseball Rules and Regulations" means each of the following as amended from time to time:
(i) any present or future agreements applicable to the Major League Baseball Clubs generally,
entered into by or on behalf of Major League Baseball, including, without limitation, the Major
League Constitution, the Professional Baseball Agreement, the Major League Rules, the
Interactive Media Rights Agreement, the Basic Agreement between the Major League Baseball
Clubs and the Major League Baseball Players Association, and each agency agreement and any
operating guidelines among Major League Baseball clubs and a Major League Baseball; and (ii)
any present and future mandates, rules, regulations, policies, interpretations, bulletins or
directives issued or adopted by Major League Baseball applicable to Major League Baseball
Clubs generally.
"Baseball Stadium" means a first class baseball stadium to be owned by the County and
constructed on the Baseball Stadium Site, having a retractable roof, a natural grass playing field,
a capacity of approximately 37,000 seats, including approximately 3,000 club seats,
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approximately 60 private suites, and concession, entertainment and retail areas, fixtures,
furnishings, equipment, features, systems and amenities comparable with other recently
constructed Major League Baseball ballparks with similar capacity and amenities in San Diego,
St. Louis, Houston, Philadelphia, Pittsburgh, and Milwaukee. The Baseball Stadium does not
include City Parking, Public Infrastructure or Other Development.
"Baseball Stadium Project" means all undertakings and work, to be described in more detail in
the Construction Administration Agreement, required for completion of the Baseball Stadium
and to have it ready and available for the play of Major League Baseball. The Baseball Stadium
Project does not include the City Parking, the Public Infrastructure, the Other Development, and
the work to be performed by the City under Section 4.01 or any other work undertaken or
commissioned by the City or the County under this Agreement, the Stadium Agreements or
related to the Entire Project without the prior written agreement of a Team Affiliate, the County
and the City that such work is part of the Baseball Stadium Project.
"Baseball Stadium Site" means all of the land within the Entire Site designated as the Baseball
Stadium Site in accordance with Section 4.01.
"Capital Improvements" means improvements to the Baseball Stadium of a character required
to be capitalized under generally accepted accounting principles as shall be further defined and
detailed in the Management Agreement and which include Necessary Improvements and exclude
Maintenance and Repairs.
"Capital Reserve Fund" means a segregated fund owned by the County and held by a Qualified
Trustee as described in Section 7.07 solely for Capital Improvements.
"City" means the City of Miami, Florida,
"City Bonds" means the bonds described in Section 6.03.
"City Parking Agreement" means an agreement to be entered into by and among the City, the
County and the Stadium Manager with respect to the parties' obligations described in Section
5.02 for Event Parking.
"City Parking" means at least 6,000 spaces located on the Development Site, which will be
available exclusively to the Team Affiliates and their patrons for Event Parking.
"Community Events" has the meaning given in Section 7.03.
"Completion Date" means the first date by which both of the following have occurred: (i) the
lead architect among the Design and Construction Professionals has issued to the Stadium
Developer and the County a certificate of substantial completion certifying that the Baseball
Stadium has been "substantially completed" subject to the completion of minor punch list items
which do not materially affect the use or occupancy of the Baseball Stadium, and (ii) a
temporary or permanent certificate of occupancy has been issued in respect of the Baseball
Stadium.
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"Construction Administration Agreement" means an agreement to be entered into by and
among the County, the City and the Stadium Developer with respect to the design, development
and construction of the Baseball Stadium.
"Construction Manager" means the construction management firm hired by the Stadium
Developer pursuant to Section 4.05 to manage the construction of the Baseball Stadium.
"Cost Overrun" shall have the meaning set forth in Section 4.09.
"County" means Miami -Dade County, Florida.
"County Bonds" means the bonds described in Section 6.02.
"Design and Construction Professionals" means the various design, engineering and
construction consulting firms hired by the Stadium Developer to design and provide construction
guidance for the design, development, construction and furnishing of the Baseball Stadium.
"Design and Construction Professionals" do not include the Construction Manager or the Team's
owner's representative.
"Design Team" shall have the meaning set forth in Section 4.06.
"Development Requirements" shall have the meaning set forth in Section 4.07.
"Development Site" means all land within the Entire Site (other than the Baseball Stadium
Site), as may be amended from time to time by notice from the City, provided that the
amendment shall not affect the Baseball Stadium Site after it has been selected.
"Draw Down Schedule" means the month by month schedule of timely payments estimated to
be necessary for the timely completion of the Baseball Stadium Project to be provided by the
Stadium Developer following its engagement of a Construction Manager as more fully described
in the Construction Administration Agreement.
"Effective Date" means the date on which this Agreement becomes legally effective in
accordance with Section 10.10.
"Entire Project" means all obligations, work and undertakings of the County, City and/or Team
Affiliates relating to the Baseball Stadium, City Parking, Public Infrastructure, and Entire Site
(excluding Other Development) under the terms and conditions of this Agreement.
"Entire Site" means the area of land described in Exhibit A.
"Event Parking" means parking during the period beginning two hours before and ending two
hours after each Baseball Event and each Other Event for which parking will be reserved
pursuant to Section 5.02.
"Governmentally Caused Overruns" shall have the meaning set forth in Section 4.09.
"Jewel Event" means the MLB All -Star Game (and related events), World Baseball Classic and
other MLB-controlled events expected to have an attendance of more than 5,000 people.
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"Maintenance and Repairs" means work, labor and materials reasonably required in the
ordinary course of business to be performed and used to: (i) maintain the Baseball Stadium in
good, clean working order; (ii) repair components of the Baseball Stadium as a result of ordinary
wear and tear; and (iii) 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. Maintenance and Repairs do not include Necessary Improvements.
"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.
"Management Agreement" means an agreement to be entered into between the County and the
Stadium Manager, and for certain purposes the City, with respect to the operation and
maintenance of the Baseball Stadium.
"Necessary Improvements" means Capital Improvements, other than Maintenance and Repairs,
that are required (i) by applicable governmental law, regulation or order; (ii) to obtain required
insurance at commercially reasonable rates; (iii) to keep the playing field, lighting and safety
features of the Baseball Stadium in compliance with Baseball Rules and Regulations; (iv) by the
manufacturer, supplier or installer of any component, system or equipment to preserve warranty
rights or for compliance with safety requirements; (v) to safeguard individuals or property in
emergency situations; (vi) to repair or restore components of the Baseball Stadium that are
damaged or destroyed by casualty, to the extent not covered by insurance; and (vii) to replace
components of the Baseball Stadium at the end of their economic life cycle.
"Non -Relocation Agreement" means an agreement to be entered into among the Team, the
County and the City with respect to the Team's obligation to play its home games at the Baseball
Stadium.
"Other Development" means the development set forth in Section 4.11.
"Other Events" means, other than Baseball Events and Community Events, any professional or
amateur sporting events or exhibitions; concerts; and general audience, family or other targeted
audience shows, performances or exhibitions held at the Baseball Stadium.
"Plans and Specifications" means the architectural drawings, plans and specifications for the
Baseball Stadium.
"Project Coordination Team" has the meaning given in Section 4.08.
"Project Program Statement" means the document, as amended from time to time, that
specifies, among other things: (i) the physical components of the Baseball Stadium; (ii) the
location and approximate space requirements for those components; and (iii) the formulation of
how those spaces will be used. The initial Project Program Statement is attached as Exhibit D
and may be amended as provided in Section 4.03.
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"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, the Proprietary
Indicia, the Team's Major League Baseball franchise, the Baseball Stadium, the Baseball
Stadium Site, and Baseball Events and other permitted uses of the Baseball Stadium:
(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 interne;
(c) rights to name the Baseball Stadium and any portions of it;
(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
(e) all other rights of marketing and advertising, exploitation, in any format, now
known or later developed, and associated promotional opportunities.
"Proprietary Indicia" means all trademarks, service marks, trade names, trade dress, domain
names, symbols, logos or brand names, 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 the Team Affiliate or Major League Baseball, or are now or hereafter licensed by
or to a Team Affiliate or Major League Baseball.
"Public Infrastructure" means utilities, roadwork, walkways, street lighting, off -site
improvements and transportation linkages that will provide ingress and egress to and support the
Baseball Stadium, and other work all as to be more fully described in the Construction
Administration Agreement.
"Public Infrastructure Costs" means all costs and expenses incurred by the County and the
City pursuant to the Construction Administration Agreement for the development and
completion of the Public Infrastructure.
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"Qualified Trustee" means a financial institution qualified to act as a depository, jointly
appointed by the County, the City and the Team for each of the purposes contemplated in this
Agreement. The fees charged by the Qualified Trustee shall be funded from the interest earnings
on deposit in the accounts managed by the Qualified Trustee.
"Stadium Agreements" shall mean the Construction Administration Agreement, the
Management Agreement, the Non -Relocation Agreement, the City Parking Agreement, the
Assurance Agreement and any other necessary agreements entered into by and among the
County, the City, the Team, the Stadium Developer, the Stadium Manager, and/or other Team
Affiliate with respect to the development, operation and management of the Baseball Stadium
Proj ect.
"Stadium Developer" means the Team Affiliate or successor entity designated by the Team to
manage the construction and development of the Baseball Stadium in accordance with the terms
of the Construction Administration Agreement.
"Stadium Developer Soft Costs" means the Stadium Project Costs to be paid directly by the
Stadium Developer or other Team Affiliate outside of the Stadium Project Construction Fund to
cover the fees relating to the Design and Construction Professionals and the Stadium
Developer's owner's representative, legal fees (but excluding legal fees and costs related to
pending or threatened litigation against the County and/or the City, including mediation and
arbitration) and other consultants fees.
"Stadium Manager" means the Team Affiliate or successor entity designated by the Team to
manage the Baseball Stadium in accordance with the terms of the Management Agreement.
"Stadium Project Budget" means the budget for the Baseball Stadium set forth in Exhibit B.
"Stadium Project Construction Fund" means an escrow fund held by a Qualified Trustee for
the purposes described in Section 6.06. The Stadium Project Construction Fund shall be
composed of three segregated accounts to be known respectively as the County Account, the
City Account and the Team Account, and any necessary subaccounts within each account.
"Stadium Project Costs" means all hard costs, soft costs and other costs incurred by the Team
Affiliates in accordance with this Agreement and the Construction Administration Agreement for
the development and completion of the Baseball Stadium Project. The Construction
Administration Agreement shall define "hard costs" and "soft costs" and provide which hard
costs and soft costs, if any, are not eligible for payment or reimbursement from the Stadium
Project Construction Fund.
"State" means the State of Florida.
"Targeted Completion Date" shall have the meaning set forth in Section 4.10.
"Targeted Taxes" means any taxes or government charges on: (i) receipts from purchasers,
lessees or licensees of private suites in the Baseball Stadium of amounts in excess of the face
value of the admission tickets for seats in the suites; (ii) the activities conducted by a Team
Affiliate at the Baseball Stadium 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
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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 luxury suites) or other rights to
admission to the Baseball Stadium 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 Baseball Stadium 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.
"Team" means Florida Marlins, L.P., its successors and its assigns as permitted under
Section 10.07.
"Team Affiliate" means the Team and any entity controlled by or under common control with
the Team.
"Team Foundation" shall have the meaning set forth in Section 7.14(a).
"Team Funding" means the funding to be provided by the Team or a Team Affiliate for the
Baseball Stadium Project pursuant to the terms set forth in Sections 4.09 and 6.04.
"Team Reserved Parking Spaces" shall have the meaning set forth in Section 5.02.
"Team Revenues" means, all revenues generated from or by reason of Baseball Events and
Other Events at the Baseball Stadium, including without limitation: the proceeds from the sale of
tickets or other rights to admission; the proceeds from the sale or licensing of suites; the proceeds
from the sale of seat licenses or other rights to purchase tickets or admission; all revenues
derived from the sale or licensing of rights of any sort to televise, broadcast, transmit, record,
advertise or promote in any manner the Baseball Events or Other Events or promotions at the
Baseball Stadium or any description or account of the Baseball Events or Other Events or
promotions at the Baseball Stadium; all proceeds from the sale at or from the Baseball Stadium
of concessions, memorabilia, souvenirs, or other products and services; all marketing,
advertising, promotional, naming and other revenues derived from or arising out of the Baseball
Stadium or the Baseball Events or Other Events or promotions held there or products, services,
infonnation or media content sold from there; and all proceeds from assignments, leases or
licenses of Baseball Stadium; provided, however, that Team Revenues do not include taxes or
governmental charges or revenues from Community Events.
"Total Baseball Stadium Cost" shall have the meaning set forth in Exhibit B.
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ARTICLE II
REPRESENTATIONS
Section 2.01 Representations of the County
As an inducement to the City and the Team to enter into this Agreement, the County
represents as follows:
(a) The County is, under the laws of the State, a duly created and validly existing
government constituted as a political subdivision of the State.
(b) The County has the power to contract and to be contracted with, to sue and to be
sued, to plead and to be impleaded, to have a seal and to exercise all other powers of a political
subdivision not inconsistent with the Constitution and laws of the State.
(c) The County has full right, power and authority to execute, deliver and perform its
obligations under this Agreement.
(d) This Agreement has been duly executed and delivered by the County and, when
duly executed and delivered by the Team and City, shall constitute a legal, valid and binding
obligation of the County enforceable against the County in accordance with its terms, except that
(i) enforceability may be limited by the application of bankruptcy, insolvency, or similar laws of
general applicability relating to the enforcement of creditors' rights generally, and (ii) the
remedy of specific performance and injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court before which any proceeding therefor may
be brought.
(e) The execution, delivery and performance of this Agreement will not conflict with
or constitute a breach of or default under any commitment, agreement or instrument to which the
County is a party or by which it is bound.
(f) Other than Case No. 08-03787 CA 13, filed in the Circuit Court of the 11th
Judicial Circuit of Miami Dade County, Florida, there is no litigation, administrative proceeding
or investigation pending (nor, to the knowledge of the County, is any such action threatened)
which in any way adversely affects, contests, questions or seeks to restrain or enjoin the
County's enabling legislation or any of the proceedings or actions taken by the County leading
up to the execution, delivery or performance of this Agreement.
(g) The County Bonds will not be issued in whole or in part under Parts II, III or V of
Chapter 159 of the Florida Statutes.
Section 2.02 Representations of the City
As an inducement to the County and the Team to enter into this Agreement, the City
represents as follows:
(a) The City is, under the laws of the State, a duly created and validly existing
government constituted as a municipal corporation of the State.
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(b) The City has the power to contract and to be contracted with, to sue and to be
sued, to plead and to be impleaded, to have a seal and to exercise all other powers of a political
subdivision not inconsistent with the Constitution and laws of the State.
(c) The City has full right, power and authority to execute, deliver and perform its
obligations under this Agreement.
(d) This Agreement has been duly executed and delivered by the City and, when duly
executed and delivered by the Team and County, shall constitute a legal, valid and binding
obligation of the City enforceable against the City in accordance with its terms, except that
(i) enforceability may be limited by the application of bankruptcy, insolvency, or similar laws of
general applicability relating to the enforcement of creditors' rights generally, and (ii) the
remedy of specific performance and injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court before which any proceeding therefor may
be brought.
(e) The execution, delivery and performance of this Agreement will not conflict with
or constitute a breach of or default under any commitment, agreement or instrument to which the
City is a party or by which it is bound.
(0 Other than Case No. 08-03787 CA 13, filed in the Circuit Court of the 11th
Judicial Circuit of Miami Dade County, Florida, there is no litigation, administrative proceeding
or investigation pending (nor, to the knowledge of the City, is any such action threatened) which
in any way adversely affects, contests, questions or seeks to restrain or enjoin the City's enabling
legislation; or any of the proceedings or actions taken by the City leading up to the execution,
delivery or performance of this Agreement.
(g) 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.
Section 2.03 Representations of the Team
As an inducement to the County and the City to enter into this Agreement, the Team
represents as follows:
(a) The Team is a limited partnership duly created and validly existing pursuant to
the laws of Delaware and is qualified to do business in every jurisdiction where its ownership of
property or its conduct of business operations gives rise to the need for such qualification, except
to the extent that the failure so to qualify in any particular jurisdiction could not reasonably be
expected to result in a material adverse effect on the business or financial condition of the Team
or the ability of the Team to perform its obligations hereunder.
(b) The Team and the applicable Team Affiliate have full right, power and authority
to execute, deliver and perform their respective obligations under this Agreement.
(c) This Agreement has been duly executed and delivered by the Team and, when
duly executed and delivered by the City and the County, shall constitute a legal, valid and
binding obligation of the Team enforceable against the Team in accordance with its terms,
except that (i) enforceability may be limited by the application of bankruptcy, insolvency, or
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similar laws of general applicability relating to the enforcement of creditors' rights generally,
and (ii) the remedy of specific performance and injunctive and other forms of equitable relief
may be subject to equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(d) The execution, delivery and performance of this Agreement will not conflict with
or constitute a breach of or default under any commitment, agreement or instrument to which the
Team or any Team Affiliate is a party or by which it is bound.
(e) The Team holds a valid Major League Baseball franchise and is in compliance in
all material respects with all Baseball Rules and Regulations.
(f) Other than Case No. 08-03787 CA 13, filed in the Circuit Court of the 11th
Judicial Circuit of Miami Dade County, Florida, there is no litigation, administrative proceeding
or investigation pending (nor, to the knowledge of the Team, is any such action threatened)
which in any way adversely affects, contests, questions or seeks to restrain or enjoin any of the
following: (i) the Team's participation in the Baseball Stadium Project; (ii) any of the limited
partnership proceedings or actions taken leading up to the execution, delivery or performance of
this Agreement; or (iii) the Team's ownership of its Major League Baseball franchise.
(g) The Office of the Commissioner of Baseball, on behalf of Major League Baseball,
has approved the terms of this Agreement and the Team's execution, delivery and performance
of this Agreement.
Section 2.04 Continued Effectiveness
Each party agrees that each of its representations in Sections 2.01, 2.02 and 2.03,
respectively, was true and accurate on the Effective Date of this Agreement and, except for the
representations made in Sections 2.01(f), 2.02(f) and 2.03(f) as to which no continuing
representations can be made, will continue to be true and accurate at all times thereafter while
this Agreement is in effect. Each party agrees to notify the other parties of any pending litigation
of a character described in Sections 2.01(0, 2.02(f) and 2.03(0, as applicable to it.
ARTICLE III
BASEBALL FRANCHISE
Section 3.01 Discontinuation of Relocation Discussions
Commencing with the execution and delivery of this Agreement and ending upon the
earlier of (i) the date of the execution and delivery of the Non -Relocation Agreement and (ii) the
termination or expiration of this Agreement, the Team and its agents shall discontinue all
discussions, negotiations and efforts to relocate the Team's Major League Baseball franchise
either temporarily or peiiiianently to any location other than the Baseball Stadium Site.
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Section 3.02 Non -Relocation Agreement
The Team shall enter into the Non -Relocation Agreement concurrently with the
execution and delivery of the Management Agreement. The Non -Relocation Agreement shall
unconditionally require the Team to maintain its Major League Baseball franchise in the City of
Miami for the term of the Management Agreement. The Non -Relocation Agreement shall
require the Team to operate and maintain a Major League Baseball franchise with the Baseball
Stadium as its home stadium and to play all of its regular season and post -season home games at
the Baseball Stadium; provided, however, that the Non -Relocation Agreement shall permit the
Team: (i) to play its home games elsewhere if necessary for reasons of public safety or because
of rescheduling due to weather or force majeure; (ii) to schedule and play up to three regular
season home games in any consecutive five-year period in an international or other venue as
permitted or requested by Major League Baseball; and (iii) play post -season games in any venue
required by Major League Baseball.
ARTICLE IV
DEVELOPMENT
Section 4.01 Baseball Stadium Site
(a) Selection of Baseball Stadium Site; Environmental Insurance and Remediation.
(i) The Baseball Stadium Site shall consist of an area within a perimeter
approximately 100 feet beyond the dripline of the Baseball Stadium footprint and such
easements reasonably necessary to accommodate and provide for the support of the retractable
roof; provided, however, if an easement is insufficient for issuance of the Replat, the Stadium
and Parking MUSP, the building permits for the Baseball Stadium, or any other approvals
required for the construction and operation of the Baseball Stadium, the City agrees to provide
such interest in the parcels as necessary to accomplish the issuance of the foregoing. The parties
shall take such necessary steps as are required to give proper effect to such easements and such
easements shall remain in effect until the earlier of (i) the reversion of title to the City pursuant to
Section 4.01(f)(vii); or (ii) the date the Baseball Stadium ceases to exist. Prior to March 31,
2008 (the "Site Selection Date") the County, the City and the Team shall agree on the location
and layout of the Baseball Stadium Site and, to the extent feasible, the location of the Public
Infrastructure within the Entire Site as well as the areas of the Entire Site proposed for
construction staging, and include such details, description and depiction in the Construction
Administration Agreement. In selecting the Baseball Stadium Site and, if feasible, the Public
Infrastructure sites, the parties shall consider accessibility and visibility from beyond the Entire
Site, the result of the investigations and inspections described hereunder, the location and
possible accommodation of existing utilities in the Entire Site, and the feasibility of the
development of the remainder of the Entire Site for the permitted uses described in Section 4.11.
Notwithstanding Section 9.05 hereof, the parties' inability to reach agreement on the location and
layout of the Baseball Stadium Site shall not be subject to arbitration.
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(ii) The City agrees it shall not take any action after the Acceptance Date, that
would impair the condition of the Baseball Stadium Site, or the portion of the Entire Site upon
which the City Parking or Public Infrastructure will be constructed.
(iii) At least fifteen (15) days prior to the Acceptance Date, the City will
deliver to the County and the Team a binder for an environmental liability insurance policy from
a reputable insurance carrier selected by the City, to insure the City, the County and the Team for
the Baseball Stadium Site as follows:
(A) remediation costs and third party liability with coverage limits of
not less than $5 million per incident and limits of not less than $5 million in the
aggregate. The City agrees to increase the coverage limits up to such amount as would
not cause the premium to increase by more than 50% over the premium for $5 million of
coverage.
(B) a term of 18 months from commencement of construction of the
Baseball Stadium, which may be extended by the Team at no cost (relating to the
premium and deductible) to the City or County.
(C) deductible to be payable by the City.
(D) exclusions for known conditions disclosed in the Phase I Report,
Limited Phase II Report and Expanded Phase II Report described below (but covering
remediation costs and liability for conditions not disclosed by such reports).
The City shall provide, at its expense, a policy with coverage as of the Acceptance Date.
iv) The City, at its own expense, will remediate in accordance with any option
available under applicable environmental law, rules and regulations, including Chapter 24 of the
Miami -Dade County Code, any environmental contamination located on, in or under or
originating from the portion of the Entire Site located at 1600 Northwest 7th Street, which is
described in the Phase I Report as having been used in the past as a petroleum filling station (the
"Filling Station Site"), and any environmental contamination existing on, originating from, or
affecting the Public Infrastructure sites which are located within the Entire Site, provided that the
City shall not be required to remedy any environmental condition within the Baseball Stadium
Site. Furthermore, notwithstanding the foregoing, the City shall have no obligation by virtue of
this Agreement to conduct remediation of any environmental contamination originating
anywhere within the Entire Site to the extent that such contamination does not impact the
Baseball Stadium Site or the Public Infrastructure. Except as otherwise provided herein, if the
costs of any environmental remediation encountered on the Baseball Stadium Site are excluded
from coverage under the insurance policy provided in Section 4.01(a)(iii) or are in excess of the
insurance proceeds payable under such insurance policy, the Construction Administration
Agreement shall set forth the allocation of such environmental remediation costs and the terms of
such environmental remediation.
(b) City's Deliverables. The City shall deliver to the County and the Team at the
City's cost:
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(i) Phase I Environmental Report. The City has previously delivered to the
County and the Team the Phase I Environmental Site Assessment Report dated March 20, 2007,
prepared by Bureau Veritas North America, Inc. as Project Number 144398 (the "Phase I
Report"). The County and the Team acknowledge receipt of the Phase I Report. Prior to March
1, 2008, the Phase I Report shall also be certified to the County and the Team and appropriate
updates to the report pursuant to the ASTM standard shall be provided.
(ii) Title Evidence. Within 10 days following the Effective Date, a title
insurance commitment (the "City Title Commitment"), committing to insure the County's
acquisition of the Baseball Stadium Site (the location of which is to be determined in accordance
with subsection (a)) in the amount of $30 million, prepared by Attorneys' Title Insurance Fund,
and opinions of title (the "Opinions of Title") issued by Lyons and Smith P.A., each relating to
the Entire Site and having an effective date no earlier than four weeks prior to the Effective Date,
with hard copies of all "special exceptions" noted. The County and the Team shall not be
obligated to purchase a title insurance policy from said title company, but shall be free to
purchase a title policy from any title company or companies they select (it being understood that
the City shall have no obligations with respect to such policy). The City shall execute such
customary affidavits (gap, no -lien and possession) as may be reasonably required by the title
company in order to delete the standard exceptions, but not to delete any exceptions shown in the
Opinions of Title or in the surveys delivered pursuant to Section 4.01(b)(iii) (unless the
exceptions are of the type cured by approval of the Replat including those specifically listed in
Section 4.01(0), from the title commitment and title policy, if the County and/or Team elect to
obtain a title policy. If the Team and the County agree that title insurance for the land is
required, the County shall procure such policy. If the cost of the title insurance policy is greater
than $10,000, the cost of the policy shall be borne equally between the Team and the County. If
the cost of the title insurance policy is less than or equal to $10,000, the Team shall bear the cost.
(iii) Survey. Prior to March 14, 2008, a survey of the Entire Site (the
"Survey"), certified to the City, the County and the Team, dated no earlier than sixty (60) days
prior to the Effective Date, prepared by a licensed Florida land surveyor, showing the boundaries
of the Entire Site, all easements of record on the Entire Site, and all improvements (other than
the Orange Bowl) and encroachments by neighboring improvements on the Entire Site. Within
60 days after the selection of the Baseball Stadium Site, the City shall deliver to the County and
the Team a revision of the survey showing the perimeter of the Baseball Stadium Site. The
Survey must also comply with the following requirements (except that the Survey need not show
the location, dimensions or square footage of the Orange Bowl or related improvements which
are to be demolished in accordance with this Agreement, the striping or type of any parking
areas; or the location or type of any trees):
1. The City shall deliver at least ten (10) original signed and sealed survey
prints.
2. The survey must be prepared in accordance with the 2005 Minimum
Standard Detail Requirements established and adopted by the American
Land Title Association ("ALTA"), American Congress on Surveying and
Mapping ("ACSM") and National Society of Professional Surveyors
("NSPS") and shall include, without limitation, the following Table A
items: 1 (denote existing monuments only), 2-4, 5, 6, 7(a), 7(b)(1), 7(c), 8-
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11(b), and 13-18, and be made in accordance with the technical standards
as set forth by the Florida Board of Professional Land Surveyors and all
requirements for surveys established by Florida law including Florida
Statutes Chapters 177 and 472 and related Florida Administrative Code
Rules.
3. The survey must specify the acreage of the Entire Site.
4. The survey must show all setback lines affecting the Entire Site. The
survey also shall show the location of all above and below ground utilities
affecting the Entire Site.
5. The survey shall be satisfactory to the title insurance company, shall refer
to the City Title Commitment by number and effective date, and shall list
every recorded exception appearing in the title report, with a note stating
whether the exception affects the Entire Site, and if so, whether the
exception is plottable. All restrictions, easements, rights -of -way,
covenants, etc. ("Encumbrances") which are excepted in the title report
must be depicted and identified on the survey drawing with the
appropriate deed book and/or map book reference, including page
numbers. If an Encumbrance is blanket in nature and its location cannot
be plotted, then the survey shall contain a notation identifying the
Encumbrance as affecting the property in question and stating that same is
blanket in nature and cannot be plotted. If an Encumbrance does not
affect the property in question, then the survey shall contain a notation
identifying the document and stating that same does not affect the
property.
6. All appurtenant rights disclosed by the title report must be depicted and
identified on the survey drawing with the appropriate deed book and/or
map book reference, including page numbers. If the right is blanket in
nature and its location cannot be plotted, then the survey shall contain a
notation identifying the right in question as benefiting or burdening the
Entire Site and that it cannot be plotted because it is blanket in nature.
7. The Survey shall contain a written legal description. The written legal
description and the legal description depicted and identified on the Survey
drawing shall both be identical with the legal description in the title report
obtained by the City.
8. The survey must be certified in the following manner:
"The undersigned, being a duly licensed and qualified surveyor in and for
the State of Florida, does hereby certify to the City of Miami, the County
of Miami -Dade, Florida Marlins, L.P. and their respective successors
and/or assigns, that, except for the location, dimensions or square footage
of the Orange Bowl or related improvements which are to be demolished
in accordance with the Agreement between the City of Miami, Miami
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Dade County and the Florida Marlins, L.P., dated , or
the striping or type of any parking areas, or any trees:
"(a) the survey represented herein is an accurate survey of all the real
property legally described herein; (b) the within survey properly and
accurately indicates the size, location, and type of improvements on the
Entire Site as of the date of the survey; (c) the within survey was prepared
under the direct supervision and control of the undersigned from an actual
survey made of the real property legally described herein; (d) all
monuments shown hereon actually exist, and the location, size, and type of
material are correctly shown; (e) except as shown hereon, there are no
encroachments either across property lines or zoning restriction lines in
effect as of the date of the survey; (f) the within survey properly
designates and locates all visible or recorded easements as of the date of
the survey; (g) ingress and egress to the property is provided by [name of
street or road] upon which the property abuts, the same being a paved and
dedicated right-of-way maintained by [name of governmental authority];
(h) the Entire Site is [or is not] located in an area designated as a special
flood hazardous area by the U.S. Depaitiiient of Housing and Urban
Development, and lies in a zone "..." of minimum flooding; (i) the Entire
Site does not [or does] service any adjoining property for drainage,
ingress, egress or any other purpose; (h) all recorded and plottable
easements and other exceptions, as noted in the Title Company's Report
No. , dated , have been correctly
platted hereon; (i) all parking areas have been accurately located hereon;
and (j) the within survey was prepared in accordance the current minimum
standards of requirement set forth by the Florida Board of Professional
Land Surveyors and all requirements for surveys established by Florida
law including Florida Statutes Chapters 177 and 472 and related Florida
Administrative Code Rules, and were made in accordance with the
Minimum Standard Detail Requirements for ALTA/ACSM Land Title
Surveys jointly established and adopted by the ALTA, ACSM, and NSPS
in 2005, including, without limitation, those certain items 1 (denote
existing monuments only), 2-4, 5, 6, 7(a), 7(b)(1), 7(c), 8-11(b), and 13-18
set forth on Table A. Pursuant to the Accuracy Standards adopted by
ALTA and NSPS and in effect on the date of this certification,
undersigned further certifies that in my professional opinion as a land
surveyor registered in the State of Florida, the Relative Positional
Accuracy of this survey does not exceed that which is specified herein [or:
the maximum Relative Positional Accuracy is feet]."
(ii) Phase II Environmental Reports.
(a) As promptly as practicable but not later than March 10, 2008, a
Limited Phase II Environmental Site Assessment Report addressing the Filling Station Site and
identified within the Phase I Report as a Recognized Environmental Condition (the "Limited
Phase II Report") certified to the County and the Team.
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(b) As promptly as practicable but not later than March 15, 2008, an
Expanded Phase II Environmental Site Assessment Report investigating soil and groundwater
quality within that portion of the Entire Site not addressed by the Limited Phase II Report (the
"Expanded Phase II Report"), certified to the County and the Team. The Scope of Work for the
Expanded Phase II Report has been delivered to the County and the Team. The Team shall have
until February 22, 2008 in which to request any changes to the Scope of Work for the Expanded
Phase II Report. If the Team requests such changes, the City will cooperate but the Team will be
responsible for any additional costs incurred and for any delay in the delivery of such report
resulting from the Team's request.
(c) Inspections and Acceptance. (i) The County and the Team shall
have the right to undertake, at no expense to the City, such physical inspections and other
investigations of and conceming the Entire Site, including geotechnical, soil borings,
percolation, engineering studies, additional environmental tests and studies and other tests as
they consider necessary to review and evaluate the physical characteristics of the Entire Site and
select the Baseball Stadium Site and the location of the Public Infrastructure, and to perform
certain work or inspections in connection with such evaluation (these inspections and evaluations
being referred to individually and collectively herein as the "Inspection(s)") after giving the City
reasonable notice of twenty-four (24) hours prior to each test performed.
(iii) The City hereby grants to the County and the Team rights of entry upon
the Entire Site to conduct the Inspections. The right of access herein granted shall be exercised
in such a manner as not to cause any unreasonable damage or destruction to, or unreasonable
interruption or interference with, the rights of the City or others to enter upon or use the Entire
Site. The County and the Team, as applicable, agree to immediately pay or cause to be removed
any liens or encumbrances filed against the Entire Site as a result of any actions taken by them or
on their behalf in connection with the Inspections and to repair such damages to the Entire Site
caused by said Inspections as the City shall reasonably require, giving due weight to the expected
demolition of the improvements on the Entire Site. The County and the Team acknowledge that
the City has made available to them the Phase I Report and will make available to them the
Limited and Expanded Phase II Reports procured by the City (all three reports collectively
referred to hereinafter as the "Environmental Reports") without any representations or warranties
by the City as to the accuracy or completeness of the information contained therein. The County
and the Team further acknowledge that while they are relying upon the Environmental Reports,
they have the full and sufficient right and opportunity to conduct their own thorough and
complete investigations of the Entire Site in selecting the Baseball Stadium Site.
(d) Examination of Title Evidence. Within thirty (30) days following its receipt of
the City Title Commitment and Opinions of Title described in Section (b)(ii), the County and the
Team shall have the right to obtain and examine all documents it requires and notify the City, in
writing, of any condition which would render the title for the Baseball Stadium Site
unmarketable or to have diminished marketability, or impair the use of the Baseball Stadium Site
for the purpose intended. Such conditions are herein called "Title Defects." The City shall use
reasonable commercial efforts to cure any Title Defects so noticed by the County and the Team
within thirty (30) days (the "City Cure Period"), provided that (i) the City shall not be required to
institute any litigation or eminent domain proceedings, and (ii) the City shall not be required to
expend funds for such purpose, other than the fees of its legal counsel ("Commercial Cure
Efforts"). In the event that title examination reveals a Title Defect not cured by the City, the
16
County or the Team may, within five (5) business days following the end of the City Cure
Period: (i) elect to accept such title that the City may be able to convey; or (ii) terminate this
Agreement by notice to the other parties, in which case this Agreement shall be terminated and
no party shall have any further obligation to the other parties (except for liability for other
breaches). For any title defects that arise between the date of submission of City Title
Commitment and Opinions of Title described in Section (b)(ii) and the date of conveyance under
Section 4.01(f)(vii) ("Additional Defects"), the City shall use Commercial Cure Efforts to cure
any such Additional Defects, and the Team and the County each shall have the termination rights
set forth in Section 4.01(e).
(e) Termination for Site Condition. From the Effective Date through 45 days
following the completion of the demolition of the Orange Bowl ("Acceptance Date"), each of the
County and the Team shall have the right to terminate this Agreement if it is not satisfied with
the condition of the Entire Site. The County's termination right only shall apply in the event that
the Team does not agree to pay the cost of the required remediation work in the case of identified
environmental hazards or other site conditions. If this Agreement is not terminated by the
Acceptance Date, the County and the Team shall be deemed to have accepted the Baseball
Stadium Site in the condition existing as of the Acceptance Date and to have acknowledged that,
except for environmental conditions as provided in Section 4.01(a)(iv), which the City has
agreed herein to remediate, and the exceptions of the type cured by approval of the Replat
including those specifically listed in Section 4.01(f), the City does not make and specifically
negates and disclaims any representations and warranties as of that date regarding the Entire Site
including specifically, but without limitation, environmental, soil and subsoil conditions and
compliance with laws, rules and regulations, except as otherwise specifically provided in this
Agreement. For any termination under this Section 4.01(e), the Team or the County shall give
notice to the other parties, in which case this Agreement shall be terminated and no party shall
have any further obligation to the other parties each of the parties shall be relieved of their
obligations under this Agreement and the Stadium Agreements with no further liability to each
other (except for liability for other breaches).
(f) Replatting; Abandonment of Easements and Right of Way; Conveyance of
Baseball Stadium Site. (i) Promptly following the Effective Date, the City shall commence and
shall diligently pursue the approval of a replat (the "Replat") of the Entire Site for the purpose of:
(A) abandoning and/or relocating those easements located within the
Entire Site which would interfere with the construction or location of the Baseball
Stadium or the Public Infrastructure (the "Encroaching Easements").
(B) abandoning the rights of way currently located within the existing
Entire Site.
Except as otherwise provided herein, the City shall pay all the expenses incurred in connection
with the approval and recordation of the Replat.
(ii) Promptly following the Effective Date, the Team and the City jointly shall
diligently pursue the approval of a Major Use Special Permit for the purpose of enabling the
County, the Team or the City, as appropriate, to procure a building permit for the construction of
the Baseball Stadium and the City Parking (the "Stadium and Parking MUSP"). The Team, as it
17
relates to the Stadium portion of the MUSP, and the City, as it relates to the Parking portion of
the MUSP, each shall pay for their respective studies, plans and other submissions which are
required for the Stadium and Parking MUSP.
(iii) The City and the Team shall work cooperatively in seeking all other
needed permits and approvals for the Baseball Stadium, including utility plans, paving and
grading, building permits, etc. The applications for the Replat, the Stadium and Parking MUSP,
and the other approvals sought hereunder for the Baseball Stadium, the Public Infrastructure and
the City Parking are collectively referred to herein as the "Applications." The Team and the
County shall not be responsible for any additional MUSP, application or other approval -related
costs relating to the Other Development.
(iv) The County, the City and the Team shall reasonably cooperate with one
another in connection with the applications for the Replat and any amendments and supplements
thereto and shall promptly and diligently, and as often as may be required join in the execution of
applications, submissions and other documents and appear at meetings, staff conferences, public
hearings and such other events of the City, the County, the State and the United States, and their
respective agencies, departments, boards and commissions, as required.
(v) The County, the City and the Team shall reasonably cooperate with one
another in connection with the application for the Stadium and Parking MUSP, and shall
promptly and diligently, and as often as may be required, join in the execution of applications,
submissions and other documents and appear at meetings, staff conferences, public hearings and
such other events of the City, the County, the State and the United States, and their respective
agencies, departments, boards and commissions, as required.
(vi) [NOT USED]
(vii) Promptly following the approvals of the Applications 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 (the
"Warranty Deed"), free and clear of all liens, encumbrances, restrictions, leasehold or other
possessory interests except for those matters shown in the Opinions of Title and for the Replat,
together with easements, as needed for ingress and egress to the Baseball Stadium Site, in
accordance with the more detailed requirements to be set forth in the Construction
Administration Agreement. The City shall convey to the County by appropriate instrument such
air rights and easements as may be reasonably necessary to accommodate and provide for the
retractable roof. The City shall also grant easements to the County for any land underlying any
of the Public Infrastructure as shall be reasonably requested by the County in order for the
County to improve such land in accordance with the requirements of the Construction
Administration Agreement. The Warranty Deed shall provide for reversion of title to or at the
direction of the City if (i) the Management Agreement is terminated and (ii) the County fails to
secure a replacement professional sports franchise to use the Baseball Stadium within three years
after such termination.
(g) City's Obligations.
(i) The City and the Team shall use reasonable best efforts to obtain, prior to
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March 31, 2008, a binding letter of vested rights (`BLIVR") from the Florida Department of
Community Affairs (the "DCA") which authorizes the construction, operation and use of the
Baseball Stadium and City Parking without the need to undergo a development of regional
impact ("DRI") review process. If the City and the Team are unable to obtain a BLIVR by
March 31, 2008, the City and the Team shall seek to obtain a preliminary development
agreement or similar DRI-related preliminary agreement under Section 380.032, Fla. Stat. as
soon as is reasonably possible in addition to any other steps required to obtain DRI approval.
(ii) The City agrees to commence the demolition of the Orange Bowl within
30 days of receipt of the BLIVR (or express indication from DCA that the demolition of the
Orange Bowl will not jeopardize the BLIVR application) or the written request of the County
and the Team, and to complete the demolition and the removal of all Orange Bowl and
demolition debris from the Baseball Stadium Site within 4 months thereafter. The County and
the Team have received a copy of the Demolition Services Agreement dated January 7, 2008 (the
"Demolition Agreement") between the City and Decommissioning & Environmental
Management Company, Inc. Representatives of the County and the Team also shall be permitted
to observe such demolition in order to assure compliance with the demolition specifications and
the proper and safe removal of all debris from the Baseball Stadium Site.
(iii) Prior to July 1, 2008, the City shall provide a construction easement in
favor of the County and the relevant Team Affiliates to use portions of the Entire Site as needed
for staging for construction of the Baseball Stadium and for construction of the County's portion
of the Public Infrastructure, with further details to be set forth in the Construction Administration
Agreement. The target dates by which the Replat of the Baseball Stadium Site and necessary
abandonment of roads, abandonment and relocation of utilities, and abandonment or relocation
of Encroaching Easements will be completed shall be set forth in the Construction
Administration Agreement.
(h) Other Easements. The County shall have the right to grant utility, access and
other similar easements affecting the Baseball Stadium Site and to construct and install utility
lines and other improvements in accordance with such easements so long as they do not interfere
with the construction (costs or timing) of the Baseball Stadium or its operation. The City shall
join in such grants of easement as reasonably necessary to give effect thereto. The City shall
grant such utility, access and other similar easements on the Development Site as the County and
Team may reasonably request to facilitate the development, construction and operation of the
Baseball Stadium and Public Infrastructure, provided that such easements do not unreasonably
interfere with the development or use of the Other Development.
Section 4.02 Stadium Project Budget
The Stadium Project Budget, including the Total Baseball Stadium Cost, is set forth in
Exhibit B. The Team has determined that the Baseball Stadium Project can be completed within
the Stadium Project Budget. The sources of funds for the Stadium Project Budget are shown in
Exhibit C.
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Section 4.03 Project Program Statement
The initial Project Program Statement is attached as Exhibit G and incorporates the
general features that, given budget realities, the parties want the Baseball Stadium to have. The
Construction Administration Agreement shall provide as an Exhibit, a more detailed Project
Program Statement that has a complete facility program depicted by room data sheets at a
schematic development stage, designed to keep the Baseball Stadium costs within the Stadium
Project Budget. The revised Project Program Statement shall also provide additional detail of
the Baseball Stadium including general descriptions of the following stadium systems: food
services, concessions, sound, HVAC, security, scoreboard, electrical and emergency generation,
lighting and telecommunications and data. The Construction Administration Agreement shall
provide that the Team may amend the Project Program Statement from time to time; provided,
however, that the amendment shall not be effective without the prior written consent of the City
and the County if the effect of the amendment is to: (i) cause the Targeted Completion Date to be
missed; (ii) cause the projected total Stadium Project Costs to exceed or further exceed the
Stadium Project Budget (assuming that the budgeted contingency identified in Exhibit B would
not be available) unless the Stadium Developer has made arrangements reasonably satisfactory to
the County and the City to fund the excess cost; (iii) pose a material risk to public safety;
(iv) eliminate a materially important programmatic element from the Project Program Statement;
(v) cause the projected total Public Infrastructure Costs to exceed or further exceed the
reasonably determined Public Infrastructure budget furnished to the Team pursuant to Section
5.01, including any increased costs caused by delays in completing the Public Infrastructure; or
(vi) result in a Governmentally Caused Overrun unless the Stadium Developer and the Team
waive, in writing, any claims it may have against the County and the City for Governmentally
Caused Overruns resulting from the change. Each time the Project Program Statement is
amended under one of the above permitted exceptions, no later than 10 business days from the
date of the amendment, the Team shall provide the City and the County an updated Project
Program Statement. In any instance in which County and City approval of a Project Program
Statement is required, the County and City shall provide their response within 10 business days
following receipt of the amended Project Program Statement and its approval shall not be
unreasonably withheld or delayed. Failure by the County and City to respond on a timely basis
shall be deemed an approval.
Section 4.04 Construction Administration Agreement
The County, the City and the Stadium Developer shall enter into the Construction
Administration Agreement and the Construction Administration Agreement shall contain the
contractual provisions regarding each party's obligations and responsibilities relating to the
Entire Project including those obligations that are expressly set forth in Article IV, Article V,
Article VI and Article VIII of this Agreement. The Assurance Agreement shall provide that the
Team will guarantee the payment and performance of all obligations of the Stadium Developer
under the Construction Administration Agreement.
Section 4.05 Design and Construction Professionals
The Construction Administration Agreement shall require the Stadium Developer to
engage the Design and Construction Professionals and the Construction Manager for the design
of the Baseball Stadium. The Team has advised the County and the City that it will retain HOK
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Sport, Inc., doing business as HOK Sport+Venue+Event ("HOK"), as the lead architect for the
Baseball Stadium, and Walter P. Moore, Bliss & Nitray, Inc., Uni-Systems and M/E Engineers as
some of the consultants to HOK. The fees of the Design and Construction Professionals and
Construction Manager shall be included in the Stadium Project Budget. The Construction
Administration Agreement shall provide that no Team Affiliate shall be paid or compensated a
developer fee for its services as Stadium Developer. All fees and sums paid to the Design and
Construction Professionals shall be paid directly by the Stadium Developer and not from the
County Account or the City Account in the Stadium Project Construction Fund, with such fees
and sums paid to be credited against the Team Funding requirement set forth in Section 6.04.
The County and/or the City shall not be obligated in any way to pay or reimburse the Team
and/or the Stadium Developer for any Design and Construction Professionals' fees, except in the
case of damages to be paid by the County or City under Article IX hereof. Although the Stadium
Developer is paying all architectural and design fees of the Baseball Stadium, the Team agrees to
provide in the Stadium Developer's contract with HOK a provision requiring HOK to make
reasonable good faith efforts to ensure that HOK and the major Design and Construction
Professionals engaged by HOK comply with the County's CBE-A/E program with respect to the
services to be performed in the same manner as if the design was County rather than privately
funded and to enforce such provisions. In addition, the Team Affiliate shall comply and agree to
provide in the Team Affiliate contracts with HOK, and any other Design and Construction
Professionals with whom the Team Affiliate contracts, provisions requiring HOK and any other
Design and Construction Professionals to comply with any applicable State and local laws. The
Team shall provide a copy of any and all contracts between the Team and the Design and
Construction Professionals to the County for its review within 30 days after their execution to
confirm compliance with the requirements above. The Stadium Developer either shall (i)
competitively select a Florida licensed contractor to serve as the Construction Manager in
accordance with State law, including the competitive selection procedures provided in Section
255.20, Florida Statutes, and applicable local laws and requirements or (ii) obtain an appropriate
bid waiver for the selection of a Construction Manager in accordance with State and local law.
The Stadium Developer shall include in its contract with the Construction Manager provisions
requiring compliance with State and local laws, including but not limited to, the County's CSBE
small business programs, responsible wages and benefits, Community Workforce, Sustainable
Building Program (subject to the limitations set forth in Section 4.06), requisite bonding from the
Stadium Developer and the Construction Manager as further provided in this Section, and the
insurance requirements as are customary according to sports facility construction industry
insurance standards, all as more fully described in the Construction Administration Agreement.
The Construction Administration Agreement shall provide that, before the Construction Manager
commences its services related to the Baseball Stadium Project, the Construction Manager shall
execute, deliver to the County (with copies to the City and the Stadium Developer), and record in
the public records of the County, a payment and performance bond for the total cost of
construction of the Baseball Stadium in compliance with the terms of Section 255.05, Florida
Statutes, specifically in the form of and in accordance with the requirements of Section
255.05(1)(a) and (c), 255.05(3), and 255.05(6), naming the County, the City and the Team
Affiliate beneficiaries thereof, as joint obligees. In addition, the Construction Administration
Agreement and any other necessary agreements shall provide that each payment made to the
Construction Manager for its performance of construction management services (i.e.,
management fee, profit, office overhead, general conditions performed or provided by the
Construction Manager as part of its construction management services, cost of work that is self -
performed by the Construction Manager), shall be made by a dual party check (or other dual
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party payment method) in the name of the Stadium Developer and the Construction Manager.
Furthermore, the Construction Administration Agreement shall provide that: (i) before the
Construction Manager commences its services related to the Baseball Stadium Project, the
Stadium Developer shall execute, deliver to the County (with a copy to the City), and record in
the public records of the County, a payment and performance bond for the total cost of
construction of the Baseball Stadium in compliance with the terms of Section 255.05, Florida
Statutes, naming the County, the City and the Team Affiliate beneficiaries thereof, as obligees;
or (ii) in lieu of such bond, the Stadium Developer shall file with the County an alternative form
of security in the form of cash, irrevocable letter of credit, or other security of the type listed in
Section 255.05(7) or Part II of chapter 625, Florida Statutes ("CM Services Security"), in an
amount equal to the total cost of the construction management services to be performed by the
Construction Manager (i.e., management fee, profit, office overhead, general conditions, and cost
of work that is self -performed by the Construction Manager if the payment and performance of
such self -performed work is not covered by the payment and performance bond provided by the
Construction Manager to the County and the City as provided herein), as depicted in the initial
Schedule of Values divided by the total number of months that comprise the performance period
of the construction management services, all in accordance with the provisions of Section
255.05(7), Florida Statutes. The amount of the CM Services Security shall be adjusted in
accordance with such formula as the total cost of the construction management services and
performance period are adjusted by change order. By way of example, if the aggregate cost of
the construction management services equals $35,000,000 and such services are required for a
period of 35 months, the amount of the required CM Services Security would be equal to
$1,000,000. The amount of the credit facility or other financial arrangement required to be
maintained by the Stadium Developer under Section 4.09 shall be reduced by an amount equal to
the CM Services Security. In addition, the Construction Administration Agreement shall provide
that the Stadium Developer shall be permitted to use the CM Services Security to make its final
payment to the Construction Manager. The Construction Administration Agreement shall
provide that prior to award to the Construction Manager, the Stadium Developer shall submit the
proposed final form of contract to the County for its review to confirm compliance with the
above -referenced legal requirements. The County shall complete its review of the final form of
the Construction Manager Agreement within 10 business days. Failure by the County to respond
on a timely basis will be deemed an approval.
Section 4.06 Plans and Specifications
The Construction Administration Agreement shall require the Stadium Developer to
direct the Design and Construction Professionals to prepare Plans and Specifications for the
Baseball Stadium that are consistent in all material respects with the Project Program Statement
and all applicable federal, state and municipal building codes. The Construction Administration
Agreement shall provide that the County and the City shall have rights of review and approval
for general conformance with the Project Program Statement, as amended, each series of
architectural plans (schematic design, design development if applicable, and construction
documents), provided that such approval shall not be unreasonably withheld, conditioned or
delayed. The Construction Administration Agreement shall provide the County and the City 10
business days to confirm that the submitted Plans and Specifications are generally consistent in
all material respects with the Project Program Statement and shall set forth a process to address
the nonconformance of the final Plans and Specifications with the Project Program Statement.
Failure by the County and City to respond on a timely basis will be deemed an approval. The
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County shall present to the Board of County Commissioners a proposed ordinance exempting the
Baseball Stadium Project from application of the provisions of the Sustainable Building
Program. Notwithstanding such exemption, the Construction Administration Agreement shall
require the Stadium Developer, the County and the City to work in good faith to comply with the
County's Sustainable Building Program so long as this does not cause an increase to the Stadium
Project Budget or negatively impact the Baseball Stadium Project construction schedule.
Further, the parties shall make reasonable efforts to achieve a LEED or comparable certification
for the Baseball Stadium to the extent that can be accomplished without increasing the total cost
of the Baseball Stadium or delaying its completion. The Stadium Developer shall from the
outset instruct the Design and Construction Professionals to take into consideration efficient and
cost effective approaches to achieve LEED certification and to consult with the local chapter of
the U.S. Green Building Council. On or before June 30, 2008, the Stadium Developer shall
provide the County and the City with Design and Construction Professionals' analysis and the
Construction Manager's estimated incremental costs necessary to achieve the various levels of
LEED certification. The County and the City shall have 20 business days to inform the Stadium
Developer which level of LEED certification, if any, the County and the City desire for the
Baseball Stadium Project. Such incremental costs shall be borne by the requesting party and not
by the Team or Team Affiliates. In no event shall any LEED certification measures be added to
the Baseball Stadium Project if such will cause a delay in the Baseball Stadium construction
schedule. If the ordinance exempting the Baseball Stadium Project from application of the
Sustainable Building Program is not enacted by May 30, 2008, the County shall be responsible
for the incremental costs directly associated with compliance with the Sustainable Building
Program. The parties shall form a design review committee within 30 business days of the
Effective Date (the "Design Team"), which shall consist of five members: two selected by the
Team, one selected by the County Mayor or his designee, one selected by the City Mayor or
designee, and one selected by Major League Baseball. The Design Team shall meet with the
Design and Construction Professionals and the Construction Manager (if selected by such date)
to develop no more than three conceptual recommendations of design related to the exterior
aesthetics of the Baseball Stadium that do not require an increase in the Stadium Project Budget
or a delay in the construction schedule. Within 10 business days following receipt of the
conceptual recommendations, the Design Team shall select a design with assistance from the
Design and Construction Professionals and the Construction Manager (if selected by such date).
The City shall use reasonable and diligent efforts to issue and facilitate permits necessary for the
timely construction and occupancy of the Baseball Stadium and completion of the Public
Infrastructure and City Parking pursuant to the initial project schedule to be included in the
Construction Administration Agreement.
Section 4.07 Permits and Zoning
The Construction Administration Agreement shall require the City or the County, as
appropriate and in consultation with the Stadium Developer, to expeditiously process all
applications for consents, approvals and permits necessary to allow for the timely construction of
the Baseball Stadium, the City Parking and the Public Infrastructure, which may include, if
applicable, without limitation: (i) the BLIVR and other approvals described in Section 4.01(b),
(ii) major use special permit or other special exception, or special permit applications, (iii)
road/alley closure and relocation petitions, (iv) re -platting petitions, (v) re -zoning or zoning
variance applications, (vi) DERM and WASD approvals, and (vii) petitions to relocate all public
and private utilities, including, without limitation, electric, gas, cable, telecommunication, water,
23
sewer, and storm drainage facilities, located within the Baseball Stadium Site to areas to be
located outside the boundary of the Baseball Stadium Site (collectively (i) — (vii), the
"Development Requirements"). The City has confirmed via separate letter from its Zoning
Administrator and Director of Planning, respectively, that the proposed uses of the Entire Site for
the Baseball Stadium and the City Parking are consistent with the current zoning and the City's
Comprehensive Land Use Plan for the Entire Site. The City or the County staff, as appropriate,
shall serve as the applicant or co -applicant for any government approval processes relating to the
Baseball Stadium. The County Manager and City Manager, or their respective designees, shall,
within 10 business days following receipt of a written request from Stadium Developer, execute
any applications, forms or petitions necessary to modify, renew, or obtain any Development
Requirements for the Baseball Stadium, as may be necessary from time to time, if written
consent of the property owner is required for such application, form or petition. The City and the
County each shall act reasonably to expedite any applications for actions or approvals requested
or required of them in connection with the permitting and construction of the Baseball Stadium
and the Public Infrastructure to allow for the undelayed completion of the Baseball Stadium
Project and the Public Infrastructure, and each shall dedicate at least one member of its building
permit staff or other appropriate staff to serve as a liaison for the Baseball Stadium Project and
the Public Infrastructure to expedite the permitting process and other City and County review
and approval processes at no cost to the Stadium Developer for such expediting and staffing.
Further, the City and the County each agrees not to act unreasonably, or fail to act, in a manner
that would substantially delay or place in jeopardy, or would reasonably be expected to
jeopardize, the completion of the Baseball Stadium by the Completion Date and the Public
Infrastructure by the respective dates set forth in the Construction Administration Agreement.
The City agrees to review building permits relating to the Baseball Stadium in accordance with
the schedule set forth below, but the Package Review Times shall not commence until the City
shall have received a completed application form for the relevant permit and all plans, reports,
information, exhibits or other documents required to be submitted with such application. Within
five (5) business days of receiving any such permit application, the City shall cause its building
department to provide to the Stadium Developer in writing a specific list of any documents or
other requirements that are missing or otherwise required to complete the application.
Permit Review Packages
Permit Package 1 — Foundations
Permit Package 2 — Superstructure, Roof
Permit Package 3 — Enclosures, interiors,
Finishes
Package Review Time
20 business days
20 business days
30 business days
Any City or County permit fees and other City or County government development approval
filing and processing fees (including but not limited to fees for MUSP, DERM, WASD, platting
and building permit applications) applicable to the Baseball Stadium Project shall be customary
and consistent with amounts charged for County or City -owned projects and shall be waived by
the City or County, respectively, to the extent authorized as of the Effective Date by County or
City code provision or administrative regulation. To the extent such waivable fees are advanced
by the Team Affiliate, the City or the County, as the case may be, shall promptly reimburse the
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Team Affiliate for such fees. City impact fees, if any, shall be imposed on the Baseball Stadium
only to the extent the impacts of the Baseball Stadium exceed the impacts of the existing
development on the property. Because the IPSIG for the Baseball Stadium Project has been
assigned at the time that this Agreement was approved by the Board, the Inspector General
contract fee shall not apply to this Agreement or the Stadium Agreements. Any fees payable
with respect to the IPSIG assigned to the Baseball Stadium Project shall be paid by the County.
Section 4.08 Construction
The Construction Administration Agreement shall require the Stadium Developer to
construct and complete the Baseball Stadium in accordance with the Plans and Specifications.
The Construction Administration Agreement shall require the Stadium Developer to form an
administrative committee that includes representation from the County and the City (the "Project
Coordination Team") to perform the following functions: (i) receive reports from the Design and
Construction Professionals pertaining to the construction schedule (including any updates) for
completion of Baseball Stadium, the Stadium Project Budget and any other aspects of the
Baseball Stadium Project; (ii) maintain clear lines of communication to facilitate a successful
Baseball Stadium Project; (iii) receive reports; and (iv) review change orders to confirm that they
are generally consistent in all material respects with the Project Program Statement. Change
orders by the Stadium Developer shall be permissible provided that: (i) the change order does
not delay or further delay the Completion Date beyond the Targeted Completion Date; (ii) either
the cost of the change order does not cause the projected total Stadium Project Costs to exceed or
further exceed the Stadium Project Budget or the Stadium Developer shall have made
arrangements reasonably satisfactory to the County and the City for the funding by the Stadium
Developer of any increase in the Stadium Project Costs resulting from such change orders; (iii)
the change order does not pose a material risk to public safety; (iv) the change order does not
eliminate a materially important programmatic element from the Project Program Statement; (v)
the change order does not cause a Governmentally Caused Overrun unless the Stadium
Developer and the Team waive, in writing, any claims they may have against the County and the
City for Governmentally Caused Overruns resulting from such change order; and (vi) the cost of
the change order does not cause the projected total Public Infrastructure Costs to exceed or
further exceed the Public Infrastructure budget furnished to the Team pursuant to Section 5.01,
including any increased costs caused by delays in completing the Public Infrastructure. The
Construction Administration Agreement shall provide that any change order that is not
permissible as provided in the preceding sentence shall be subject to the written approval of the
County and the City pursuant to the approval process detailed in the Construction Administration
Agreement. The Construction Administration Agreement shall provide for periodic (at least
monthly) regular meetings of the Project Coordination Team and for special meetings upon
reasonable prior notice. The County and the City shall be given an opportunity to inspect the
construction work and materials and to review construction documents as reasonably necessary
to verify that the work and materials are in conformity with the Project Program Statement, all as
more fully set forth in the Construction Administration Agreement. The Construction
Administration Agreement shall require the Stadium Developer to carry, or require others to
carry, construction period insurance, naming the County and the City as additional named
insureds, with such coverages and in such amounts as are customary for sports facility projects of
similar size and scope. The Stadium Developer shall provide the County and the City following
the execution of the Construction Administration Agreement with a construction schedule, a
schedule of values and a Draw Down Schedule each in the form approved in the Construction
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Administration Agreement. The Construction Administration Agreement shall require the
Stadium Developer to provide to the County and the City monthly updates to the Baseball
Stadium construction schedule, the schedule of values and the Draw Down Schedule. The Draw
Down Schedule should reconcile with the most updated construction schedule and the
Construction Manager's schedule of values for the Baseball Stadium. The Construction
Administration Agreement shall include a detailed plan by which the County shall procure
construction materials and equipment for the Baseball Stadium on a sales tax exempt basis
pursuant to State law and in a manner that protects the reasonable financial interests of each
party. The County and the Team each agree to use reasonable best efforts to develop a
successful program to procure construction materials and equipment for the Baseball Stadium on
a sales tax exempt basis under State law. The Construction Administration Agreement shall
provide as an exhibit a construction materials procurement plan agreed to by the County and the
Team. The County's obligation to implement a sales tax exempt procurement program in
accordance with the terms of the Construction Administration Agreement shall be subject to the
Team's receipt of a favorable opinion provided by the State of Florida Department of Revenue
indicating that purchases in accordance with such procurement program will be exempt from
sales tax. The Construction Administration Agreement shall provide that if a favorable opinion
is not issued, the County shall 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 in an amount not to
exceed $4,400,000. The City and the County shall assist the Team in identifying and locating at
least 3,000 square feet of downtown office space within two miles of the Baseball Stadium Site
that is suitable for marketing purposes, at no cost to the County or the City.
Section 4.09 Cost Overruns
The Construction Administration Agreement shall require the Stadium Developer to fund
and bear the cost of all Cost Overruns other than Governmentally Caused Overruns. "Cost
Overrun" means all Stadium Project Costs (including, without limitation, all such costs of
planning, designing, constructing, and equipping the Baseball Stadium and all related indemnity
and damage obligations to, and claims due and owing to contractors, subcontractors, suppliers,
architects, engineers and other vendors (as further defined in the Construction Administration
Agreement) in excess of the amounts provided for in Stadium Project Budget. "Governmentally
Caused Overrun" means a Cost Overrun that delays or further delays the Completion Date
beyond the Targeted Completion Date or causes the actual total Stadium Project Costs to exceed
or further exceed the Stadium Project Budget and results from (i) any breach by the County or
City, as the case may be, of, or failure of a representation made in, this Agreement or one of the
Stadium Agreements; (ii) any change in law enacted by the County or City after the date of this
Agreement, other than a change of general application mandated by State law; (iii) changes in
the design or construction of the Baseball Stadium imposed by the County or City pursuant to
Section 10.08 other than changes necessary to bring the Baseball Stadium Project into
compliance with generally applicable building, fire or other municipal codes; (iv) the Other
Development, the Public Infrastructure (unless associated with environmental contamination
within the Baseball Stadium Site), the City Parking, the City's obligations under Section 4.01, or
any other work to be conducted by the County or the City under this Agreement; (v) the City's
remediation of environmental conditions as provided in Section 4.01(a)(iv), the Limited Phase II
Report and the demolition of the Orange Bowl and related debris removal to the extent either
affects the Baseball Stadium Site or the Public Infrastructure located within the Entire Site; (vi) a
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delay caused by the failure of the County or the City, as the case may be, to meet a deadline
imposed on it in Article IV or Sections 8.03 or 8.04; (vii) or relating to the portions of the Replat
and road abandonment and utility relocation or abandonment processes that are within the
County's or City's reasonable control in accordance with the timetables agreed to by the parties
in the Construction Administration Agreement, except to the extent any one of the foregoing
delays were caused by a Team Affiliate or its Design and Construction Professionals, the
Construction Manager or other contractors or consultants engaged by the Team Affiliate. The
Construction Administration Agreement shall require the County and the City each to fund and
bear the cost of Governmentally Caused Overruns to the extent caused by it. The Construction
Administration Agreement shall provide a means by which the applicable parties will share in
the funding of Cost Overruns and cost overruns related to the Public Infrastructure for which the
Team, the County and/or the City are responsible, including the cost of concurrently caused
delays. At the time of execution of the Construction Administration Agreement, the Stadium
Developer shall provide the County and the City with evidence that it has in place a dedicated
bank line of credit or other similar financial arrangement in the amount of at least $20,000,000
that may be used only to pay Cost Overruns. The Construction Administration Agreement shall
require that, except to the extent actually applied to pay Cost Overruns, such credit facility or a
replacement credit facility shall be maintained in place until the Completion Date; provided that,
prior to the Completion Date the parties shall agree on the terms of such credit facility or a
replacement credit facility to be maintained by the Team Affiliate after the Completion Date.
The credit facility obligation shall be included with the obligations guaranteed by the Team
under the Assurance Agreement.
Section 4.10 Stadium Project Completion Date
The Construction Administration Agreement shall require the parties to use their
reasonable best efforts to achieve the Completion Date by April 1, 2011 ("Targeted Completion
Date"). The Construction Administration Agreement shall set forth a detailed development and
construction timeline for the Baseball Stadium Project.
Section 4.11 Other Development
Following the Effective Date, the City, or an agency or instrumentality of the City, either
by itself or with third party joint venture partners, intends to develop commercial, retail and other
development on the Development Site, which site shall include, at a minimum, the Entire Site,
but excluding the Baseball Stadium Site ("Other Development"). Other Development may
include a soccer stadium (the "Soccer Stadium"). The City shall use its best efforts to cause
Major League Soccer to award an ownership group the rights to a soccer team whose home
territory shall be the City of Miami (the "Soccer Team") on or before June 1, 2008. The City
shall keep the County and the Team informed of any plans it develops for Other Development.
The City may, subject to the provisions of this Section, (i) pursue the Other Development on
such terms and conditions as it may determine, (ii) transfer the right to pursue Other
Development 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 Other Development.
The City acknowledges that the success of the Entire Site will depend on, among other things,
the proper coordination of all of the proposed uses on the Entire Site. As such, the Team (as
applicable) shall agree to, and the City shall require all users of the Other Development to
comply with the following restrictions:
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(a) Baseball and soccer games will not be scheduled on the Entire Site to take
place 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 use of the City Parking provided in the City Parking Agreement.
(b) The scheduling of baseball games and Jewel Events shall have priority
over the scheduling of the Soccer Team's soccer games, provided that (i) the Stadium Manager
shall provide the Soccer Team up to thirteen (13) Saturday nights during each soccer season for
soccer games at the soccer stadium, (ii) the Team shall make reasonable effort to accommodate
any post -season soccer games that would otherwise conflict with regular season baseball games,
and (iii) post -season baseball games and Jewel Events shall have priority over all soccer games
and other events at the soccer stadium.
(c) The scheduling of soccer games shall have priority over the scheduling of
non -game Baseball Events and Other Events, and the Stadium Manager and the City shall
coordinate, for purposes of the use of City Parking pursuant to Section 5.02, the scheduling of
such events so as to avoid any conflicts. Otherwise, as between non -game and non -Jewel Event
Baseball Events and Other Events on the one hand, and other events on the Entire Site (other
than soccer games) on the other hand, priority in the use of the City Parking will be determined
on the basis of which event is booked first in accordance with the procedures to be set forth in
the applicable Stadium Agreements. The parties covenant and agree to reasonably cooperate
with the goal of maximizing the use of the Entire Site for its intended purposes.
(d) Other Development shall be architecturally harmonious with the Baseball
Stadium and the facade features of the Other Development shall have no highly reflective
materials facing the Baseball Stadium.
(e) During the construction period for the Baseball Stadium and City Parking,
the Baseball Stadium, City Parking and Public Infrastructure contractors shall have job site
priority within the limits of the construction easements required by Section 4.01(g) and as
detailed in the Construction Administration Agreement. The City will require that any work to
be performed in respect of the Other Development be done without causing a delay in the
completion of the Baseball Stadium by the Targeted Completion Date and the Public
Infrastructure by the deadlines specified in the Construction Administration Agreement. In
addition, the City will not, following the Completion Date, allow any substantial or noisy
construction activity in respect of the Other Development that materially interferes with the use
of the Baseball Stadium for baseball games, or Baseball Events or Other Events with an expected
attendance of 5,000 or more people.
(0 Subject to the remaining terms of this paragraph, Ambush Advertising
shall be prohibited during Baseball games, soccer games and Other Events expecting to have
attendance of at least 5,000 people. "Ambush Advertising" is defined as any promotions,
contests or other sponsorship activation activities conducted during a Baseball Event, Other
Event or event at the soccer stadium directed at undercutting the value or impact of a
competitor's advertising signage or sponsorship within the Entire Site. Exterior advertising
placed on a soccer stadium or a City Parking structure may not conflict with any "Major
Sponsor." A Major Sponsor is defined as a Team or Baseball Stadium sponsor that spends at
least $500,000 annually with a Team Affiliate for its sponsorship of the Team and/or the
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Baseball Stadium. No advertiser in the exterior of the soccer stadium or a City Parking structure
that competes with a new Major Sponsor (i.e., a Major Sponsor that enters into a sponsorship
agreement with a Team Affiliate or Baseball Stadium following the Team's first year in the
Baseball Stadium) shall be required to terminate its agreement early or to remove its competing
advertising until the expiration of the term of its agreement. 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. The Team represents to the City that it has not entered into an agreement
to sell the naming rights to the Baseball Stadium. The City represents to the Team that it has not
entered into any agreement with respect to any Other Development, including a soccer stadium.
Further details covering the operation of the terms of this section (f) shall be set forth in the
relevant Stadium Agreements.
(g) The following uses shall not be permitted within the Other Development:
(i) ticket brokerage businesses (other than brokerage services provided by the Team for MLB
games and by the Soccer Team for soccer games), (ii) retail businesses whose primary business
directly competes with the naming rights sponsors of the Baseball Stadium at the time the retail
business is established, except for business located in any hotel developed within the
Development Site (iii) fast food restaurants, except in a soccer stadium operating during soccer
stadium events, (iv) the give-away of food or beverage within three hours before or one hour
after baseball games, or Baseball Events and Other Events expected to have attendance of at
least 5,000 people, (v) the sale of beer in an outdoor bar (beer garden) within one hour before
baseball games, or Baseball Events or Other Events expected to have attendance of at least 5,000
people, except in any bar located in any hotel developed within the Development Site, (vi) the
promotion and sale of baseball branded or themed memorabilia and merchandise by persons
other than the Team, and (vii) the promotion and sale of soccer branded or themed memorabilia
and merchandise by persons other than the Soccer Team.
(h) If an MLS soccer franchise is not granted by June 1, 2008, or if
construction of the soccer stadium cannot reasonably be expected to be completed by 60 days
following the first baseball game at the Baseball Stadium, the City shall not permit the
construction of the soccer stadium to commence until after the second anniversary of the
Completion Date.
(i) The City shall not permit the use of Other Development that in any
material respect interferes with the operation of the Baseball Stadium or the City Parking for
baseball games, or Baseball Events or Other Events expected to have attendance of at least 5,000
people.
(j) The Team or any Team Affiliate and the County shall have the right to
review the plans and specifications as well as leases in respect of any Other Development.
(k) The City and the Team agree that the foregoing restrictions shall run with
the Development Site land from the Effective Date through the term of the Management
Agreement. The City, the County and the Team (if appropriate) shall record an appropriate legal
instrument in the Public Records of Miami -Dade County evidencing the continuing applicability
of these restrictions.
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ARTICLE V
INFRASTRUCTURE AND PARKING
Section 5.01 Public Infrastructure
The County and the City shall be responsible for all Public Infrastructure work and Public
Infrastructure Costs. Public Infrastructure work to be completed by the County or the City shall
include (a) street closures, relocations and improvements, (b) relocation of existing utilities,
including water, sewer, electrical and telecommunication to support the Baseball Stadium under,
on or near the Baseball Stadium Site that is required, and (c) required new traffic flow
signalization, as determined by the County after consultation with the City and the Team
Affiliate. The Construction Administration Agreement shall provide that, in order to further
define the necessary Public Infrastructure, the County and the City shall review and consider
certain studies and consulting reports, including, but not limited to, the December 2007
transportation and parking study conducted by HNTB. In addition, the Construction
Administration Agreement may provide that the Public Infrastructure may include relocation of
existing utilities to support the City Parking if it is agreed that coordination of construction of
such utilities is economically beneficial to the City and the County. The Construction
Administration Agreement shall, consistent with this Agreement, provide the deadline dates by
which the location and layout of all Public Infrastructure, to the extent the location and layout are
not agreed to prior to such time, and the areas of the Entire Site proposed for construction staging
for the Public Infrastructure work, and shall set forth further detail as to the Public Infrastructure
work, the terms covering the completion of such work and the allocation of such work and
related costs between the County and the City. In addition, the Construction Administration
Agreement shall require the County and the City to furnish the Team with a written budget for
the Public Infrastructure Costs. The Construction Administration Agreement shall require the
City and the County to design, construct, install and pay for the Public Infrastructure in
accordance with the applicable deadlines set forth in the Construction Administration
Agreement. The Design and Construction Professionals shall work with and cooperate with the
County and City and provide input needed so that the Public Infrastructure work can be
completed effectively, expeditiously and cost effectively and so as not to miss the targeted
completion date for the Public Infrastructure as set forth in the Construction Administration
Agreement. The Team shall be given opportunity to review and comment upon program and
design features and to inspect plans and specifications and construction work of the Public
Infrastructure to verify that they are in conformity with the terms of the Construction
Administration Agreement.
Section 5.02 Parking
The City and the Stadium Manager shall enter into a City Parking Agreement. The City
Parking Agreement shall terminate vis-a-vis the Stadium Manager upon termination of the
Management Agreement, upon which time the County shall become a party to the City Parking
Agreement. The City Parking Agreement shall teiuiinate vis-a-vis the County no earlier than
reversion of title to the Baseball Stadium Site under Section 4.01(f)(ii). The City Parking
Agreement shall require that the City construct, or cause to be constructed, parking facilities on
the Development Site (structured and/or surface parking facilities) to house at least 6,000 parking
spaces (the "City Parking"). The City Parking Agreement shall give employees of the Team, the
30
Team Affiliates and patrons of the Baseball Stadium exclusive use of the City Parking for all
baseball games or MLB organized events (including any MLB Jewel Events and any Team or
MLB organized exhibition games). Employees of the Team, the Team Affiliates and patrons of
the Baseball Stadium also shall have exclusive use of as many spaces in the City Parking as are
projected to be needed and reserved for all other Baseball Events and Other Events. All parking
made available hereunder shall be made available from two hours prior through at least two
hours following each such event. The layout and general configuration of the City Parking shall
be agreed to by the parties as soon as practicable but in no event later than June 30, 2008, and
shall be set forth in the City Parking Agreement. The location of the City Parking shall take into
consideration the location and possible accommodation of existing utilities and the result of the
investigations and inspections performed under this Agreement. Prior to the filing of the re -plat
application covered in Section 4.01, the City shall have the right to make changes to the location
of the City Parking as it deems necessary provided that any material change shall be subject to
the prior written consent of the Team and the County. The City Parking Agreement shall include
the following provisions:
(a) The Team and the County shall each have the right to review, comment
upon and approve the program and design features of the City Parking to assure that they are in
conformity with the terms of this Agreement and the Stadium Agreements and the functional
requirements of the Baseball Stadium as contemplated in this Agreement and the Stadium
Agreements. The Team and the County shall not unreasonably withhold or delay their approval.
The City Parking shall be designed to assure a 40-minute maximum empty time.
(b) City Parking must be completed at least 30 days prior to the Completion
Date. The Entire Site and the City Parking shall be developed and constructed in a manner that
will not delay or would reasonably be expected to jeopardize the completion of the Baseball
Stadium Project by the Targeted Completion Date referenced in Section 4.10.
(c) Unless terminated in accordance with its terms, the initial term of the City
Parking Agreement shall continue through the twentieth annual anniversary of the Completion
Date. The City Parking Agreement shall have two renewal terms exercisable at the option of the
Team Affiliates. The first renewal term will be for ten years and the second renewal term will be
for five years; provided however that the term of the City Parking Agreement shall in no event
extend beyond the term of the Management Agreement.
(d) The City shall operate and maintain the City Parking, or engage third
parties to do so.
(e) The City Parking shall include 250 parking spaces that will be reserved at
all times for the Team's employees and guests (the "Team Reserved Parking Spaces") at no cost
in a location determined by the Stadium Manager. The Team Reserved Parking Spaces shall be
separately secured. The Team will be responsible for paying the incremental costs of separately
securing the Team Reserved Parking Spaces.
(f) During the initial term and any applicable renewal terms under the City
Parking Agreement, the Team or the Stadium Manager shall purchase the remaining 5,750
spaces of City Parking for each regular season baseball game at the following prices per space
per year payable semi-annually on or before May 31 and November 30th of such year:
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Years Price
1-5 $10.03
6 —10 $10.10
11-15 $10.20
16-20 $10.86
21— 25 $11.56
26 — 30 $12.29
31— 35 $12.53
The above prices assume the City is required to maintain a one year debt service reserve
for the contemplated City Parking bond financing and that it satisfies such reserve with a surety.
The City shall use best efforts to utilize such a surety, or to otherwise utilize a letter of credit or
similar financial instrument. If the City is nevertheless required to maintain a cash reserve, the
above prices shall be increased by the net incremental cost of maintaining such cash reserve on a
$44 million portion of the City Parking bonds (i.e., interest on any additional borrowings to fund
the reserve, less earnings on the reserves and the assumed surety rate). The City shall use best
efforts to minimize such incremental cost including by maximizing the earnings on the reserves,
provided that such may not exceed the interest rate on the City Parking bonds.
The Team Affiliates shall have the right to resell all City Parking spaces purchased in
accordance with the above schedule in its own discretion and retain all revenues derived
therefrom, except that the Team Affiliates shall remit to the applicable taxing authority all
generally applicable surcharges and taxes.
(g) In addition to the Team Affiliates right to resell all City Parking spaces
purchased in accordance with the above schedule, the Team Affiliates shall have the right to sell
all spaces in the City Parking for other Baseball Events and Other Events, including post -season
baseball games and Jewel Events (subject to the space reservation requirement set forth in the
first paragraph of this Section 5.02), and to retain all revenues derived therefrom net of
incremental event labor costs and all generally applicable surcharges and taxes. Except as
provided herein, the Team Affiliates shall not be required to pay for their use of the City Parking
for other Baseball Events or Other Events.
(h) The City shall not provide City Parking to any Soccer Team or Soccer
Stadium operator at a lower price or on otherwise more favorable terms (except with respect to
minimum space purchase requirements) than in the provisions of the City Parking Agreement
without the prior written consent of the Team Affiliates.
(i) The Team Affiliates shall have the exclusive right to sell all signage and
advertising rights with respect to City Parking, and all net revenues derived from such sales shall
be split evenly between the City and Team Affiliate; provided that this paragraph shall not apply
to reasonable and customary signage placed in the City Parking by retail tenants in the Other
Development with respect to themselves.
(j) The County and the City shall identify all County or City owned or
controlled parking spaces within five -eighths of one mile from the Baseball Stadium other than
on the Entire Site that may potentially be available for Event Parking ("Off -Site Parking"). To
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the extent Off -Site Parking is available, the County and the City agree to make it available to the
Team Affiliate and patrons of the Baseball Stadium by separate agreement from two hours prior
to through at Least two hours following each such event. The City and the County shall study
and consider the implementation of a shuttle service for Event Parking between the Baseball
Stadium and the Off -Site Parking and shall consult with the Team regarding the establishment of
market -based pricing for Baseball Event or Other Event parking for Off -Site Parking.
ARTICLE VI
FUNDING
Section 6.01 Sources of Funds
The sources of funds for the Baseball Stadium Project are depicted in Exhibit C.
Section 6.02 County Funding
The Construction Administration Agreement shall provide that the County shall
issue and sell one or more series of taxable or tax-exempt revenue bonds and 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: (i) $347,000,000 of net proceeds into the County Account of the
Stadium Project Construction Fund and (ii) $35,000,000 of net proceeds into the County
Account of the Stadium Project Construction Fund as referenced in Sections 6.04(ii) and 7.04.
The Construction Administration Agreement shall provide that the County, in its sole discretion,
shall determine the details of the issuance of the County Bonds, including the use of capitalized
interest.
Section 6.03 City Funding
The Construction Administration Agreement shall provide that 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 $13,000,000 of net proceeds into the City Account of the Stadium
Project Construction Fund. The Construction Administration Agreement shall provide that the
City, in its sole discretion, shall determine the details of the issuance of the City Bonds,
including the use of capitalized interest.
Section 6.04 Team Funding
The Construction Administration Agreement shall provide that the Team
Affiliates shall fund $155,000,000 of the Stadium Project Budget by (i) directly paying Stadium
Developer Soft Costs that are included within the Stadium Project Budget and related to the
Baseball Stadium; (ii) a deposit of $35,000,000 into the Construction Fund as provided in
Sections 6.02 and 7.04, and (iii) following the exhaustion of the City Account and the County
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Account, including the funds set forth in Section 6.04(ii), depositing the balance of the
$155,000,000 amount as and when needed, less any earnings projected to be realized from the
investment of the funds, if any, and less any future projected Stadium Developer Soft Costs, into
the Team Account of the Stadium Project Construction Fund; provided that such funds may be
maintained in a third party account if required by the terms of the Team Affiliates' financing.
The County and City shall cooperate with the Team Affiliates in their efforts to obtain financing
including, if requested by the Team, by allowing the Team Affiliates to obtain any such
financing through an industrial development agency or other governmental body provided that
such financing is non -recourse to the County and City.
Section 6.05 [NOT USED]
Section 6.06 Construction Fund Disbursement Procedure
The Construction Administration Agreement shall provide a disbursement
procedure, including payment requisition requirements, by which the Stadium Developer may
draw upon the Stadium Project Construction Fund to pay costs of the Baseball Stadium or by
which the County and/or the City may draw upon the Stadium Project Construction Fund to
reimburse the City and County for advances made in accordance with the terms of the
Construction Administration Agreement. Disbursements from the Stadium Project Construction
Fund for advances made by the City and/or the County to meet any deadlines set forth in the
Construction Administration Agreement shall be from the Account into which the advance had
been deposited. The disbursement procedure set forth in the Construction Administration
Agreement shall incorporate sound and customary practices for the disbursement of funds to pay
costs of a large commercial project. Notwithstanding the foregoing, neither the Team nor the
Stadium Developer shall be reimbursed from the County Account or the City Account in the
Stadium Project Construction Fund for any costs associated with design, architecture or
engineering services described in Section 287.055, Florida Statutes, except in the case of
damages payable under Article IX hereof. The disbursement of funds from the Stadium Project
Construction Fund to pay costs of the Baseball Stadium shall be made first from the County
Account and the City Account ratably until such funds are exhausted, then from the Team
Account. Earnings from the investment of the County Account and the City Account shall be
distributed when realized to the County and the City, respectively, for their respective uses to
pay any additional costs, including soft costs, related to the Baseball Stadium with any remainder
to be used for any other lawful purpose. Earnings from the investment of the Team Account
shall be retained in the Team Account for the authorized uses thereof. Monthly statements of all
activity in the Stadium Project Construction Fund shall be furnished to the County, the City and
the Stadium Developer, and the parties shall have the right to audit those statements. The
Construction Administration Agreement shall provide that any balance in the Team Account of
the Stadium Project Construction Fund remaining after completion of the Baseball Stadium
Project (other than from earnings on the investment of monies deposited in the Stadium Project
Construction Fund, as covered above, and any funding by the Team Affiliates in excess of
$155,000,000, which amounts shall be returned to the Team Affiliates) shall be transferred to the
Capital Reserve Fund.
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Section 6.07 Stadium Developer to Keep Funding in Balance
The Construction Administration Agreement shall require the Stadium Developer
to maintain a true, accurate, complete and up-to-date record that reconciles each line item of the
Stadium Project Budget against (i) the total amount of the Stadium Project Costs for that line
item that are covered by contracts in force, including adjustments due to amendments and/or
change orders; (ii) the amount of Stadium Project Costs for that line item disbursed to date; (iii)
the estimated amount of Stadium Project Costs for that line item necessary to be disbursed in the
future to complete (in accordance with the Plans and Specifications) the design services, the
construction work, materials and other services covered by that line item; (iv) any reductions due
to sales tax savings achieved, if any; and (v) the variance between the sum of items (ii), (iii) and
(iv) for that line item versus the Stadium Project Budget for that line item. The Stadium
Developer shall be entitled to adjust the Stadium Project Budget by reallocating amounts
between line items. A copy of the record shall be furnished at least quarterly to the County and
the City. The Construction Administration Agreement also shall permit the Stadium Developer
to use reasonable efforts to apply value engineering techniques to limit or prevent Cost Overruns
where practical. The funding of the Baseball Stadium Project shall be deemed to be "in balance"
at a particular time of determination if the sum of the following equals or exceeds the amount
necessary to pay when due the total of the estimated remaining amounts necessary to complete
the Baseball Stadium in accordance with the Plans and Specifications and Project Program
Statement, namely the sum of (i) the then current balance (including any bank letters of credit
which may include the CM Services Security) in the Stadium Project Construction Fund, plus (ii)
prior to the issuance thereof, the projected net proceeds of the County Bonds and the City Bonds,
respectively, plus (iii) the projected investment earnings on the Team Account, plus (iv) the
amount of any Team Funding referenced in Section 6.04 or otherwise arranged by the Stadium
Developer and contractually committed solely for the purpose of funding the Baseball Stadium,
plus the remaining amount the Team Affiliates are required to fund, less (v) any interest earnings
from the investment of any funds on deposit in the County Account and the City Account.
Notwithstanding and prevailing over the preceding sentence, the Construction Administration
Agreement shall provide that the County shall have the right to review all leases and related
documents associated with the leasing of material equipment and system components of the
Baseball Stadium. In addition, the Construction Administration Agreement shall provide that the
County shall have the right to approve any change in project scope or budget due to the leasing
of material equipment or system components of the Baseball Stadium if such lease is for a line
item in the Stadium Project Budget equal to or in excess of $7.5 million, which approval shall
not be unreasonably withheld or delayed. The Construction Administration Agreement shall
provide that if and whenever the Stadium Project Budget is not in balance with the Stadium
Project Costs as provided in this section and the Construction Administration Agreement, the
Stadium Developer shall report the details to the County and the City and, upon the written
demand by the County or the City, shall be obligated to bring funding of the Baseball Stadium in
balance within three months following the demand except as to any Governmentally Caused
Overruns described in Section 4.09 and any additional limitations set forth in the Construction
Administration Agreement.
Section 6.08 Public Infrastructure Funding
Except as otherwise provided in this Agreement, the Construction Administration
Agreement shall describe the sources, amounts of funding and the disbursement procedures by
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which the County or the City, as the case may be, shall fund the costs of the Public
Infrastructure. The disbursement procedures shall incorporate sound and customary practices for
disbursement of public funds to pay costs of large public projects. Monthly progress reports
related to the Public Infrastructure shall be furnished to the County, the City and the Stadium
Developer.
Section 6.08 State Funding
The County and the City shall use reasonable best efforts and work cooperatively,
including any reasonable assistance needed from the Team, to secure funding from the State in
the form of a sales tax rebate or other available State funding to defray costs related to the
Baseball Stadium Project or the Baseball Stadium. Unless otherwise required by the State, the
amount of any such State funding shall be deposited into the Capital Reserve Fund.
ARTICLE VII
MANAGEMENT OF BASEBALL STADIUM
Section 7.01 Management Agreement
The County, the Stadium Manager and, if necessary, the City shall enter into the
Management Agreement which shall set forth the terms for the operation, management and use
of the Baseball Stadium. The Management Agreement shall grant the Stadium Manager the
exclusive right, authority and responsibility to manage the Baseball Stadium on behalf of the
County. The Management Agreement shall provide that the Stadium Manager's rights and
responsibilities include (i) arranging for the Team's use of the Baseball Stadium for Baseball
Events; (ii) arranging for Other Events and any other lawful uses of the Baseball Stadium; (iii)
entering into agreements pursuant to which third parties conduct events or otherwise use the
Baseball Stadium for revenue producing purposes; and (iv) managing all operations of the
Baseball Stadium and retaining the revenues therefrom, following payment of the costs thereof,
including the reasonable cost of public safety services consistent with the customary operation
for other professional sports facilities to protect the Baseball Stadium and its patrons in
accordance with staffing procedures to be set forth in the Management Agreement, during all
Baseball Events and Other Events at the Baseball Stadium. The Management Agreement shall
provide that, except for Community Events, the Stadium Manager has the exclusive right (i) to
establish all prices and other terms and conditions for the uses of the Baseball Stadium and (ii) to
enter into contracts generating stadium revenues.
Section 7.02 Term
The initial teuu of the Management Agreement shall commence upon its
execution and delivery and, unless terminated in accordance with its terms, shall continue until
the 35th annual anniversary of the Completion Date. The Management Agreement shall have two
five-year renewal terms exercisable at the option of the Stadium Manager.
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Section 7.03 Community Events
The Management Agreement shall provide that the County and the City shall each
have the right to use the Baseball Stadium 8 days per year (a total of 16 days per year), for
amateur athletic, public service, or other non-profit events not including professional baseball
games ("Community Events"), subject to the following: (i) the Team shall have scheduling
priority for Baseball Events and the Stadium Manager shall have scheduling priority for Other
Events; (ii) written notice to the Stadium Manager of dates to be selected given not less than 10
days prior to contractual commitment and not less than 30 days prior to the Community Event;
(iii) no more than six of the Community Events shall be during the baseball season and none of
the events shall be within five days preceding a scheduled or previously rescheduled Baseball
Event or Other Events; (iv) the County or the City, as applicable, will bear all costs and expenses
of the Community Event, including the cost of appropriate liability insurance naming the
Stadium Manager as an additional insured and the cost of personnel and services provided by the
Team Affiliates; (v) the County or the City, as applicable, will provide and pay for proper
security and police protection during the Community Event; (vi) the County or the City, as
applicable, will hold the Stadium Manager and the Team harmless from liabilities and damage
arising out of such usage; (vii) the proposed usage will not include the infield unless the usage is
for a baseball game; (viii) the County or the City, as applicable, will return the Baseball Stadium
and the Baseball Stadium Site to the same or better condition than existed prior to the usage; (ix)
the Community Events shall be subject to all third party agreements of the Team Affiliates
relating to the Baseball Stadium (e.g., concession and ticketing agreements); and (x) if requested
by the Team Affiliates, the County and City shall use personnel and services designated by the
Team Affiliates for Community Events (e.g., ticket takers). The Stadium Manager may reject
any proposed Community Event if: (i) the Stadium Manager reasonably believes the usage
presents an unacceptable risk of damage to the playing field that cannot be repaired before the
next scheduled or previously rescheduled home baseball game; (ii) the usage would violate
Baseball Rules and Regulations relating to the public image of a Major League Baseball team or
the Baseball Stadium; or (iii) the promotional sponsorship connected with the usage, in the
opinion of the Stadium Manager, is incompatible with any major sponsorships or other exclusive
advertising or promotional arrangements connected with a Team Affiliate or the Baseball
Stadium.
Section 7.04 Team Rent
One of the Stadium Agreements shall provide that the Team shall pay, or cause to
be paid, rent of $2,300,000 per year from the Completion Date through the expiration of the
Management Agreement. In consideration of such rent payments, the County shall deposit into
the County Account on behalf of the Team the $35,000,000 referenced in Section 6.04(ii). Rent
shall be payable in monthly or semi-annual installments each year.
Section 7.05 Maintenance and Repairs; Operating Expenses
The Management Agreement shall require the Stadium Manager to undertake and
pay the costs of all Maintenance and Repairs. The Management Agreement shall also require the
Stadium Manager to pay all expenses associated with the operation of the Baseball Stadium and
the Baseball Stadium Site, including, but not limited to, game day operations, security on the
Baseball Stadium Site, utilities, custodial services, premiums for the insurance described in
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Section 7.12, and supplies and other consumable goods. The Stadium Manager shall be
responsible for the payment of any shortfalls. The County shall use reasonable best efforts to
assist the Stadium Manager to secure utilities for the Baseball Stadium at rates comparable to the
County's reduced bulk rates.
Section 7.06 Capital Improvements
The Management Agreement shall permit the Stadium Manager to make
Necessary Improvements on behalf of the County as it deems necessary or appropriate and
provide that the cost of Necessary Improvements shall be paid or reimbursed to the Stadium
Manager from funds in the Capital Reserve Fund. In addition, the Management Agreement shall
permit the Stadium Manager to make such Capital Improvements (other than Necessary
Improvements) as it deems necessary or appropriate, and the cost of such Capital Improvements
shall be borne by the Team Affiliate and shall not be deemed an expense eligible for
reimbursement from the Capital Reserve Fund; provided, however, in the case of Capital
Improvements (other than Necessary Improvements) having a cost of $400,000 (in April 1, 2011,
dollars to be thereafter adjusted by a mutually agreed upon price index) or more, the Stadium
Manager's authority to make such Capital Improvements is subject to the prior written approval
of the County which shall not be unreasonably withheld or delayed.
Section 7.07 Capital Reserve Fund
The Management Agreement shall provide for the creation of the Capital Reserve
Fund and, commencing with the year of the opening of the Baseball Stadium and continuing for
the term of the Management Agreement, shall require annual contributions into the Capital
Reserve Fund of $250,000 by the City and $750,000 by each of the County and the Team
Affiliate. If State funding contemplated under Section 6.09 is obtained that provides for deposits
into the Capital Reserve Fund of at least $2,000,000 per year, the City shall not be required to
contribute to the Capital Reserve Fund in any such year, and the County's and the Team
Affiliate's respective contribution obligations shall be reduced to $250,000 for the first ten years
and $500,000 for each subsequent year during the term of the Management Agreement. If State
funding is obtained in any amount less than $2,000,000 per year, the parties' respective Capital
Reserve Fund contributions shall be reduced pro-rata. In addition, the County and the City shall
deposit or cause to be deposited into the Capital Reserve Fund annual amounts of $250,000 for
years 11-20 and $500,000 for all subsequent years during the term of the Management
Agreement to the extent the CDD contemplated under Section 10.14 directly or indirectly
generates those amounts. In the event the CDD does not directly or indirectly generate those
amounts, the City and the County shall meet with the Team to discuss alternative sources of
funding, but the County and the City shall have no obligation to provide that alternative funding.
All earnings and profits from the investment of the Capital Reserve Fund shall be for the account
of the Capital Reserve Fund. The County, the City and the Team intend that the Capital Reserve
Fund is an asset of the County designed to protect its ownership interest in the Baseball Stadium
and shall not be an asset of the Team, any Team Affiliate or the City. The Management
Agreement shall provide that in the event of a named storm or a terrorist act that damages the
Baseball Stadium, the County and the City shall work in good faith with the Stadium Manager to
apply for all appropriate disaster and Homeland Security relief from Federal, State and local
agencies.
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Section 7.08 Ownership of Team Revenues
The Management Agreement shall provide that all Team Revenues belong to the
Team Affiliates.
Section 7.09 Ownership of Promotional Rights
The Management Agreement shall provide that, as between the County and the
City on the one hand and the Team and Team Affiliates on the other hand, the Team or Team
Affiliates own all Promotional 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 Team which may be given or withheld in the Team's absolute discretion. As
between the County and the City on the one hand and the Team, the Team Affiliates or Major
League Baseball on the other hand, all Propriety Indicia are solely and exclusively the property
of the Team, the Team Affiliates, Major League Baseball or their respective assigns. As between
the County and the City on the one hand and the Team, 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 Team, Team Affiliates, the 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 Team which may be given or
withheld in the Team's absolute discretion. The Management Agreement shall provide that the
Team and/or the 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 of
the Management Agreement and shall provide the City or the County an opportunity to cure.
The Management Agreement shall provide that the Stadium Manager shall have, subject to
compliance with applicable law, the exclusive right to sell, license or otherwise grant the naming
rights to the Baseball Stadium for the term of the Management Agreement. Specifically, the
Management Agreement shall provide that the Stadium Manager must obtain the written
approval of the name(s) of the Baseball Stadium from the County, subject to the conditions set
forth below, which approval shall not be unreasonably withheld or delayed. The Management
Agreement shall provide that the County may disapprove any name that is in conflict with
standards of public decency, including, without limitation, association with tobacco or adult
entertainment. The name (including the commonly known name and the parent company name,
but excluding any name associated with tobacco or adult entertainment) of any Fortune 1000
company or any of its subsidiaries or products, any bank, any cruise line, any airline, or any
nationally recognized beverage company (including alcohol) shall each be deemed to be an
approved name.
Section 7.10 Intanmible and Ad Valorem Taxes
The Team's use of the Baseball Stadium is subject, under existing law, to the
annual intangible tax imposed by Chapter 199 of the Florida Statutes. As a County -owned
facility, the Baseball Stadium is immune from ad valorem real property taxes. Without limiting
the foregoing, if any ad valorem, real property taxes shall be levied in respect of the interest of
39
the Team or any Team Affiliate in the Baseball Stadium during the term of the Management
Agreement, to the extent permitted by then applicable law, the Team Affiliates shall (i) 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 (ii) 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 7.11 Assignments and Liens
The Management Agreement shall grant the Stadium Manager rights on behalf of
the County to assign or lease the portions of the Baseball Stadium for uses permitted under the
Management Agreement, and to sell or grant sponsorships, licenses, or similar rights in and to
the Baseball Stadium or any portion of it for uses permitted under the Management Agreement.
The Management Agreement shall not permit the County to transfer or assign the Baseball
Stadium or the Baseball Stadium Site or the Management Agreement or to grant or allow any
liens or encumbrances on the Baseball Stadium Site, the Baseball Stadium or the Management
Agreement other than those granted by the Team Affiliates.
Section 7.12 Targeted Taxes
The Management Agreement shall provide that neither the County nor the City
shall impose any Targeted Taxes during the term of the Management Agreement. The
Management Agreement also shall provide that, if at any time during the term of the
Management 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. The
Management Agreement shall further provide that, 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 Stadium Agreements (including
any amounts payable with respect to Capital Improvements).
Section 7.13 Insurance
The Management Agreement shall require the Stadium Manager, on behalf of the
County, to carry and maintain insurance from financially sound carriers, at levels customarily
maintained by other Major League Baseball clubs:
(a) Commercial general liability insurance against claims for bodily injury,
death or property damage arising out of the operations of the Baseball Stadium and the
Baseball Stadium Site under the Management Agreement;
(b) Property insurance on an all risk basis for the Baseball Stadium and all
improvements at any time situated upon or forming part of the Baseball Stadium with overall
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coverage limits on a replacement cost basis and sub -limits in amounts customarily maintained
by other Major League Baseball Clubs and reasonably available in the insurance marketplace,
as established using an appropriate industry standard probable maximum loss analysis (as long
as the sub -limits are within amounts that are reasonably available in the insurance
marketplace);
(c) Workers' compensation insurance coverage or a qualified self insured
program complying with the statutory limits of the State and including employers liability
coverage;
(d) Umbrella liability coverage as necessary to obtain customary limits for the
commercial general liability and employers liability limits as described above; and
(e) Automobile liability coverage, if applicable, covering owned, non -owned,
leased or hired automobile.
(f) Each year during the term of the Management Agreement, the Stadium
Manager shall provide the County with certificates of insurance covering the above -described
insurance policies and providing the limits and sub -limits of each such policy. The
Management Agreement shall require the Stadium Manager to provide the County notice of
any material changes to the Team's or Stadium Manager's insurance policies covered
hereunder. The Management Agreement shall further provide that, upon reasonable advance
notice, the County may request the right to inspect at the Stadium Manager's offices any of the
above -referenced insurance policies.
The general and excess liability policies shall include the County, and the Team and applicable
Team Affiliates as additional insureds.
Section 7.14 Community Benefit Obligations
The Team acknowledges a civic responsibility to promote and contribute to
charitable, educational and community organizations and other public works in South Florida.
The Management Agreement shall require the Team to develop and deliver a strong and
substantial community benefits package 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 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.
(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 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.
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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 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 year the Team shall (i) provide Affordable Seats, and (ii) distribute at least 5,000
regular season individual tickets on a complimentary basis each year to appropriate Miami -Dade
County charities that will make such tickets available to underprivileged youth accompanied by
adult mentors.
(f) Each season, the Stadium Manager shall make available at no charge one
standard luxury suite to each regular season home game for public and/or charity use. Each
season, the County and the City each shall have the right to designate the public or charity use
for the suite for 27 games, and the Stadium Manager shall designate the charity or other use for
the remaining games. In the case of any post season baseball game or other MLB Jewel Event,
the City and County will have the right to purchase tickets for the suite on the same basis as any
other suite owner is permitted to purchase suite tickets.
(g) The Team shall participate in Major League Baseball's Diverse Business
Partners Program. The Diverse Business Partners Program is an initiative designed to increase
opportunities for minority and women owned businesses to participate in the procurement
activities of Major League Baseball organizations.
(h) Upon either a sale to a third party of a "control interest" (as defined in the
Major League Baseball Constitution in Baseball Rules and Regulations) in the Team or a sale of
the Team's Major League Baseball franchise in either case within the first five years after the
execution of this Agreement (other than following the death of the controlling owner), the Team
shall or shall cause seller to pay to the County and the City, to be split on a pro-rata basis
(including the value of the City's contribution of the Baseball Stadium Site, the amount of the
City's and the County's expenditures as required by Section 4.01, and the value of the City and
the County's respective expenditures associated with the Public Infrastructure) determined by
each respective parties' contribution to the Baseball Stadium, an amount equal to the following
percentage of the net proceeds (as such term is defined in the Management Agreement), after any
applicable taxes, of sale that are attributable to any increase in value of the franchise from the
date of this Agreement (pro -rated in the case of a sale of the control interest):
42
If the sale occurs in: Percentage
Year 1 10%
Year 2 9%
Year 3 7%
Year 4 6%
Year 5 5%
The increase in value shall be based on an assumed value of the franchise of $250,000,000 as of
the date of this Agreement, which assumed value shall be increased to give effect to any
additional capital funding to the Team Affiliates (net of distributions) and an imputed increase in
value of 8% per annum from the date of this Agreement.
(i)
Completion Date.
The Team shall change its name to the Miami Marlins prior to the
Section 7.15 Annual Reports
The Management Agreement shall require the Stadium Manager to provide the
County and the City with an annual report on Maintenance and Repairs and Capital
Improvements paid in the preceding year and budgeted for the following year.
ARTICLE VIII
DEADLINE DATES
Section 8.01 Impact of Deadline Dates
The Construction Administration Agreement shall provide an appropriate
mechanism for adjusting any deadline dates that are affected by another party's failure to meet a
prior and related deadline date.
Section 8.02 Execution and Delivery of Stadium Agreements
Prior to July 1, 2008, the County, the City and the Team (with all requisite
approvals from Major League Baseball) shall, as applicable, execute, deliver and approve the
Construction Administration Agreement, the Non -Relocation Agreement, the Assurance
Agreement and the Management Agreement. The Team shall deliver to the County and the City
comprehensive initial drafts of each of the Stadium Agreements on or before March 30, 2008 and
each party agrees to provide comments and response drafts in a timely fashion. The Team may
cause one or more Team Affiliates to execute and deliver the Construction Administration
Agreement and the Management Agreement in place of the Team as the Stadium Developer and
the Stadium Manager, respectively. With the exception of terms and provisions expressly agreed
to in this Agreement, if the parties are unable to reasonably agree to the terms and conditions to
be set forth in the Stadium Agreements and as a result any document is not approved, executed
and delivered by the date set forth herein, the parties' failure to approve, execute and deliver
43
such document by such date shall not be deemed a breach under this Agreement and the parties
shall not be liable to each other, except as specified in Section 9.03. The parties acknowledge
that the Board of County Commissioners of Miami -Dade County (the "Board") may approve the
Construction Administration Agreement and certain of the other Stadium Agreements, only upon
the written recommendation of the County Manager, and a resolution adopted by two-thirds vote
of the members present, that a waiver of competitive bidding to select the Stadium Developer
and the Stadium Manager is in the best interest of the County, and such approval will occur
following the Effective Date. The parties hereby agree that the Board's failure to approve such
waiver shall not in itself constitute an Event of Default hereunder and shall solely be subject to
the Stadium Agreements' Termination provision set forth in Section 9.03.
Section 8.03 County Funding
The Stadium Agreements shall provide that prior to October 31, 2008, the County
shall make the deposits described in Sections 6.02, except that the $35,000,000 amount funded
on behalf of the Team shall not be required to be deposited in the County Account until the later
of (i) 3 months prior to the Team Affiliates' initial deposit of the amounts specified in Section
6.04(iii); and (ii) 12 months prior to the projected Completion Date; and so long as in the interim
the County advances by deposit into the County Account such amounts as are required to make
timely disbursements from the County Account in accordance with the Draw Down Schedule.
Section 8.04 City Funding
The Stadium Agreements shall provide that prior to March 1, 2009, the City shall
make the deposit described in Section 6.03; 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.
ARTICLE IX
REMEDIES
Section 9.01 Termination Rights in General
The County, the City and the Team entered into this Agreement to set forth their
respective undertakings to assure the retention of a Major League Baseball franchise in the City
of Miami. Each understands that a successful result is dependent upon their mutual cooperation
and adherence to the dates set forth in this Agreement. Accordingly, each is willing to proceed
under this Agreement knowing that, as a practical matter, proceeding under this Agreement
forecloses or alters the timing of other possible desirable courses of action.
Section 9.02 Termination Rights of County and City
By written notice to the City and the Team, the County may terminate this
Agreement and be relieved of all obligations and liabilities under this Agreement (except with
respect to any breaches by the County prior to termination) if (i) the Team or the City breaches
this Agreement in any material respect and has not cured such breach within 30 days after
44
written notice from the County specifying the breach and demanding that it be cured; or (ii) as
provided in Section 4.01(e). By written notice to the County and the Team, the City may
terminate this Agreement and be relieved of all obligations and liabilities under this Agreement
(except with respect to any breaches by the City prior to termination) if the Team or the County
breaches this Agreement in any material respect and has not cured such breach within 30 days
after written notice from the City specifying the breach and demanding that it be cured.
The County or the City may, by written notice to the other parties, terminate this
Agreement and be relieved of all liabilities under this Agreement (except with respect to any
breaches by the County or the City prior to termination, as the case may be) if the parties cannot
agree to the terms of any one or all of the Stadium Agreements by August 31, 2008. In such
event, each of the County, City and Team shall be responsible for one-third of the total
reasonable actual out-of-pocket costs expended by all three parties relating to the Baseball
Stadium Project, from the Effective Date through the earlier of (i) the date of the notice of
termination and (ii) July 1, 2008, in the categories and the approximate amounts detailed in the
initial Draw Down Schedule provided in Exhibit E, which shall not include any costs expended
by the City relating to the demolition of the existing Orange Bowl stadium or any other costs that
would have been incurred by the City if there were no Baseball Stadium Project or that can be
used towards a separate City development project or that otherwise can be used to provide value
to the City unless such costs were expressly set forth in Exhibit E ("Reimbursable Interim
Costs"). In the event, any of the three parties has expended more than one-third the amount of
the total Reimbursable Interim Costs, the party or parties, as the case may be, having spent less
than one-third the total amount of Reimbursable Interim Costs shall reimburse such party all
amounts necessary to reduce that party's total portion of the Reimbursable Interim Costs to one-
third of the total amount expended by the parties from the Effective Date. (By way of example,
if through the date of termination, the County had spent $100,000, the City had spent $250,000,
and the Team had spent $250,000 in reimbursable costs, the County would reimburse the City
$50,000 and reimburse the Team $50,000, such that all parties would end up with a final
contribution of $200,000 to the project upon termination).
Section 9.04 Termination Rights of the Team
The Team may, by written notice to the County and the City, terminate this
Agreement and be relieved of all obligations and liabilities under this Agreement (except with
respect to any breaches by the Team prior to termination) if (i) the County or the City breaches
this Agreement in any material respect and has not cured that breach within 30 days after written
notice from the Team specifying the breach and demanding that it be cured; or (ii) a deadline
specified in Section 4.01 or Article VIII shall be missed; or (iii) all of the Stadium Agreements
have not been executed and approved on or before July 1, 2008; or (iv) as provided in Section
4.01(e). In the event of a termination under clause (iii), each of the County, City and Team shall
be responsible for one-third of the total Reimbursable Interim Costs as provided in the
reimbursement calculation set forth in Section 9.02.
45
Section 9.05 Remedies
The County, the City and the Team agree that their respective remedies for any
breach of or default under this Agreement shall be as set forth below:
(a) The County, the City or the Team, as the case may be, shall have the right
to terminate this Agreement as set forth in Section 9.02 or Section 9.03, as applicable.
(b) The County, the City or the Team, as applicable, shall have the right to
seek an injunction, mandamus, or other equitable relief in the nature of an injunction or
mandamus, for violations of this Agreement, including particularly, but without limitation, a
violation of Section 3.01 by the Team.
(c) The County, the City and the Team shall each be entitled to recover
damages from a party who breaches its representations or obligations under this Agreement;
provided, however, that the damages shall be limited to each non -breaching parties'
Reimbursable Interim Costs through the date this Agreement is terminated due to such breach.
Damages shall not include punitive damages or consequential damages such as, for example, lost
profits, lost tax collections, lost opportunities, and the like.
(d) The County, the City or the Team agree that the remedies set forth in
paragraphs (a) through (c) shall be the sole and exclusive remedies for any breach of or default
under this Agreement and hereby waive any and all other remedies, including, without limitation,
any form of equitable relief and any and all claims to any form of compensatory damages,
consequential damages, incidental damages and punitive damages other than the remedies
allowed in paragraphs (a) through (c). The remedies in paragraphs (a) through (c) are
cumulative.
(e) [NOT USED]
(f) Nothing contained herein is intended to waive any right or remedy
available to the County, the City or the Team under any of the other agreements contemplated
under this Agreement, including, without limitation, the Construction Administration
Agreement, the City Parking Agreement, the Management Agreement, the Assurance Agreement
and the Non -Relocation Agreement.
(g) All damages to be paid by the County or the City under this Section 9.04
shall be payable from non -ad valorem revenue sources. The County, the City, and the Team
each hereby represent that the remedies set forth in this Section 9.04 are legally enforceable as
described in this Section 9.04.
Section 9.05 Mediation and Arbitration
(a) If the parties are unable to reach mutual agreement with respect to any
matter requiring the parties' mutual agreement under this Agreement within 10 days following
the unmet deadline prescribed herein for such agreement, the parties shall submit such matter to
mediation under the Mediation Procedures of the American Arbitration Association. Real estate
development or construction matters shall be subject to the Construction Industry Mediation
Procedures and other matters shall be subject to the Commercial Mediation Procedures. Once
46
commenced, no such mediation shall be permitted to proceed for more than 15 days. Each party
shall bear its own expenses, and the costs and expenses of the mediator and any administrative
expenses of the mediation shall be borne one-third each by the Team, the County and the City.
(b) Disputes arising under the following provisions of this Agreement shall be
resolved exclusively by arbitration in accordance with this paragraph (b): Sections 4.01
(excluding any disputes relating to the selection of the Baseball Stadium Site), 4.11, 9.02, 9.03,
9.04(a), 9.04(c), 9.04(d), and 10.12. Disputes relating to any impasse reached in negotiating any
Stadium Agreement shall not be eligible for resolution by arbitration under this Section 9.05.
Disputes to be resolved by arbitration shall be resolved by binding arbitration in the City of
Miami before a panel of three independent arbitrators under the auspices and pursuant to the
rules of the American Arbitration Association. Any dispute regarding real estate development or
construction matters shall be governed by the Complex Construction Arbitration Rules then in
effect, and any dispute regarding other matters shall be governed by the Commercial Arbitration
Rules then in effect. Unless otherwise provided in this Agreement, the arbitration hearing will
be scheduled so that it is concluded within 60 days from the date of the filing of the arbitration
and the panel shall render its decision within one month after the closing of the hearing.
Arbitrators will be chosen under the usual procedures and from the usual panels of the American
Arbitration Association except that none of the arbitrators shall have performed, directly or
indirectly, a material amount of work for the County, the City or the Team within the five-year
period immediately preceding the date of their selection or intend or desire to perform work for
the County, the City or the Team within one year following the date of their selection. Issues
determined by arbitration pursuant to this Section 9.05 shall be given preclusive or collateral
estoppel effect. Each party shall bear its own attorneys' fees and costs relating to the arbitration
(and such fees and costs are specifically excluded from Stadium Project Soft Costs), but the costs
and fees of the panel, the fees to the American Arbitration Association, and any other costs of
such arbitration shall be borne one-third each by the Team, the County and the City.
(c) The Stadium Agreements shall provide for resolution of certain disputes
by arbitration as specifically set forth in the Stadium Agreements, which shall, at a minimum,
contain expedited arbitration resolution processes for disputes involving design and construction
matters. Notwithstanding the foregoing, the arbitrator(s) shall not have the authority to amend or
insert any provisions in the Stadium Agreements.
ARTICLE X
MISCELLANEOUS
Section 10.01 Parties and Interests
This Agreement sets forth the entire agreement of the County, the City or the
Team with respect to the subject matters covered by this Agreement. Any prior understandings
or agreements, whether oral or written, with respect to subject matters covered by this
Agreement are terminated and replaced by this Agreement. This Agreement is solely for the
benefit of the County, the City or the Team, and no other person shall have any rights under or
by virtue of this Agreement.
47
Section 10.02 Notices
All notices, demands, certificates or other communications under this Agreement
shall be sufficiently given and shall be deemed given when hand delivered or when delivered by
commercial same day or overnight courier, with proper address as follows:
If to the County:
If to the City:
To the attention of: 111 NW 1st Street, Suite 2900
Miami, Florida 33128
Attn: County Manager
With a copy to: County Attorney
111 NW 1st Street, Suite 2810
Miami, Florida 33128
Attn: Robert A. Cuevas, Jr.
To the attention of:
48
With a copy to: [City Attorney]
If to the Team:
To the attention of:
With a copy to:
Any party, by written notice to the others, may change its address for purposes of this Agreement
or the person to whose attention deliveries should be made. Any time period for action
following a delivery of notice or materials under this Agreement shall not begin to run unless and
until the delivery is to the attention of the proper person as provided above.
Section 10.03 Amendments and Waivers
No amendment to this Agreement shall be binding upon the County, the City or
the Team until the amendment is reduced to writing, approved by the Board and by the City
Commission of the City of Miami (the "Commission"), and executed by the County, the City and
the Team. No waiver of any terms of this Agreement shall be binding on the party granting the
waiver until the waiver is reduced to writing, approved by the Board, and the Commission, and
executed by the party granting the waiver. Contemporaneously with the approval of this
Agreement, the Board and the Commission are adopting resolutions authorizing the County
Manager and the City Manager, respectively, to approve amendments and waivers to this
Agreement that extend deadlines by up to 60 days, without requiring Board or Commission
approval.
Section 10.04 Governing Law
The internal laws of the State shall govem this Agreement excluding the conflicts
of laws principles thereof. All references in this Agreement to "applicable law" and similar
terms, and the County's and the City's exercise of their governmental and regulatory authorities,
shall mean and be in accordance with all laws as generally applied to all businesses in the
County or City as applicable.
Section 10.05 Captions
The captions and headings in this Agreement are only for convenience and do not
define, limit or describe the scope or intent of any of the provisions of this Agreement.
49
Section 10.06 Counterparts
This Agreement may be signed in any number of counterparts with the same
effect as if the signatures thereto and hereto were upon the same instrument.
Section 10.07 Assignment
The Team shall not have any right to assign its rights or delegate its obligations
under this Agreement, other than to an affiliate of the Team or a purchaser of the Team's Major
League Baseball franchise in a transaction approved in accordance with Baseball Rules and
Regulations, without the prior written consent of the County and the City, which consent shall
not be unreasonably withheld or delayed. Without limiting the generality of the foregoing, the
Team shall have the right to substitute a Team Affiliate in place of the Team as the party to any
one or more of the Construction Administration Agreement, the City Parking Agreement and the
Management Agreement, provided such substitution does not affect, either directly or indirectly,
the Team's obligations to guarantee, give assurance of or otherwise secure the Team Affiliate's
obligations as required by this Agreement. The County and the City shall not have any right to
assign their respective rights or delegate their respective obligations under this Agreement, other
than to another entity of the County or the City, as applicable, without the prior written consent
of the Team, which consent shall not be unreasonably withheld or delayed.
Section 10.08 Sovereign Rights
The County and City retain all of their respective sovereign prerogatives and
rights 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 Florida
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 City Parking, 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
Stadium Agreements be obligated to grant the other, or the Team, any Team Affiliate, or the
Stadium Developer any approvals of applications for building, zoning, planning or development
under present or future laws and ordinances of whatever nature applicable to the planning,
design, construction, development and/or operation of the Baseball Stadium, the Baseball
Stadium Site, the Public Infrastructure, the Other Development or the City Parking.
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 of
County Commissioners, the County's Planning and Zoning Department, DERM the City
Commission or any other County, City, federal or state department or authority, committee or
50
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 10.09 MLB Requirements
Notwithstanding any other provision of this Agreement, except for the last
sentence in this section, the obligations of the Team under this Agreement shall in all respects be
subordinate to the approval requirements and other Baseball Rules and Regulations as they are
applied generally to all Major League Baseball clubs. The County and the City agree not to seek
an injunction or similar relief against MLB to enjoin its implementation of the Baseball Rules
and Regulations. In the event that any act or omission taken by the Team to comply with
Baseball Rules and Regulations materially affects the rights of the County or City under this
Agreement or deprives the County or City of the essential benefits of this Agreement, the parties
will work in good faith, with the assistance, if necessary, of mediation under Section 9.04(a) to
amend the terms of this Agreement to neutralize the effect. The Team agrees in any event that if
compliance by it with Baseball Rules and Regulations results in a failure of the Team to fulfill its
obligations under this Agreement, the County and the City may enforce remedies for the Team's
failure to fulfill its obligations as provided in this Agreement and the Stadium Agreements,
including specifically the right to seek an injunction or similar relief against the Team to enforce
the provisions of Section 3.01 and the Non -Relocation Agreement.
Section 10.10 Legal Effectiveness
This Agreement is signed on behalf of the parties by appropriate officers and
officials to evidence their agreement on behalf of the County, the City and the Team,
respectively, but subject in each case to the authorization and approval of the City Commission
and the Board. This Agreement shall become binding and legally effective upon approval by the
City Commission and the Board, unless vetoed by either Mayor within ten (10) days, and if
vetoed, shall become effective only upon an override by the City Commission or the Board, as
applicable. The City, the County and the Team agree that in the event this Agreement is not
approved by the City Commission and the Board, this Agreement shall be null and void and of
no further force and legal effect and the parties shall have no rights or obligations under this
Agreement. This Agreement shall be binding upon the respective successors and authorized
assigns of the parties. If the Management Agreement is terminated prior to the expiration of its
term, the County shall have the right to succeed to all of the Stadium Manager's rights and
obligations under, and which accrue after the termination of, the Management Agreement and
any other agreements to be identified in the Management Agreement, including the City Parking
Agreement. If any provision or provisions of this Agreement are determined to be invalid or
unenforceable for any reason, such determination shall not affect the validity or enforceability of
the remaining provisions of this Agreement, unless such invalid provision affects a major
business component of this Agreement.
By the execution of this Baseball Stadium Agreement, the County, the City and
the Team acknowledge and agree that the condition subsequent set forth in (i) Paragraph 10 of
the lnterlocal Agreement by and among the County, the City, the Southeast Overtown Park West
Community Redevelopment Agency and the Omni Community Redevelopment Agency (the
51
"Interlocal") dated December 31, 2007 and (ii) the First Amendment to Interlocal Cooperation
Agreement dated December 31, 2007 by and among the County, the City and the Community
Redevelopment Agency for the OMNI district (the "First Amendment") have been satisfied and
hereby waive all rights they may have to challenge the satisfaction of such conditions subsequent
and to seek to void such (i) Interlocal pursuant to Paragraph 10 thereof and (ii) First Amendment
pursuant to Article VI thereof.
Section 10.11 Relationship of County and Team
No partnership, joint venture or other business relationship is established between
the County and the Team under this Agreement other than the relationship of the County as the
owner of the Baseball Stadium and the Baseball Stadium Site and the Team as an independent
contractor. Except as expressly provided in this Agreement or in the Stadium Agreements, the
Team and its employees, agents, independent contractors and consultants shall not be considered
employees or agents of the County or to have been authorized to incur any expense on behalf of
the County or to act for or to bind the County. The County and its elected and appointed
officials, officers, employees, agents independent contractors and consultants shall not be
considered employees or agents of the Team or to have been authorized to incur any expense on
behalf of the Team or to act for or to bind the Team. Neither the County nor the Team shall be
liable for any acts, omissions or negligence on the part of the other party or its employees,
agents, independent contractors, licensees and invitees. The relationship created hereby is solely
that of owner -independent contractor.
Section 10.12 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.
"Force Majeure" shall mean a war, insurrection, strike or lockout, riot, hurricane,
flood, earthquake, fire, casualty, act of God, act of the public enemy, epidemic, quarantine
restriction, freight embargoes, lack of transportation, governmental restriction, court order,
unusually severe weather, act or the failure to act of any public governmental agency or entity,
terrorism, or any other cause in each case (including the events specified above) beyond the
reasonable control and without the fault of the party claiming an excuse from performance;
provided, however, that any Force Majeure involving or relating to County or City governmental
restrictions or acts or failures to act of any County or City agency or entity shall not relieve the
County or City, as the case may be, of their obligations under this Agreement unless the failure
to act is as a result of another Force Majeure event beyond the reasonable control and without the
fault of the party claiming an excuse from performance.
52
Section 10.13 Inspector General and Independent Private Sector Inspector General
(a) Office of Inspector General. The attention of the City and the Stadium
Developer are hereby directed to Section 2-1076 of the Code of Miami -Dade County
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, projects, contracts and transactions.
(b) Independent Private Sector Inspector General. Pursuant to Board
Resolution No. R-516-96 and Administrative Order 3-20, the County may authorize, retain and
coordinate the services of an independent private sector inspector general ("IPSIG") for
construction, capital development, procurement, retail, concession, lease and management
agreements and/or contracts and other agreements exceeding $1 million. The County has at its
expense, appointed the Inspector General as its independent private sector inspector general
("IPSIG") for the Baseball Stadium Project. The IPSIG may audit, investigate, monitor,
oversee, inspect and review the operations, activities and performance of the Stadium
Developer, the City and the County in connection with project design and construction matters
under this Agreement. The scope of services performed by the IPSIG may include, but are not
limited to, monitoring and investigating compliance with contract specifications; project costs;
and investigating and preventing corruption and fraud.
The IPSIG may perform its services at all levels of the construction contracting
and procurement process under this Agreement, including but not limited to, project design,
establishment of bid specifications, bid submittals, activities of the City, the Stadium Developer
and their officers, agents and employees, lobbyists, City and County staff and elected officials.
Upon fifteen days' written notice to the City or the Stadium Developer from the IPSIG, the City
or the Stadium Developer shall make all requested non-proprietary project -related records and
documents available to the IPSIG for inspection and copying.
The IPSIG shall have the right to examine all documents and records in the City's
or Stadium Developer's possession, custody or control which, in the IPSIG's reasonable
judgment, pertain to the project design and performance of construction matters under this
Agreement, including but not limited to, original estimate files; change order estimate files;
worksheets; proposals and agreements from and with subcontractors and suppliers; all proj ect-
related correspondence, memoranda, instructions, financial documents, construction documents,
bid and contract documents; back -charge documents; documents and records which involve cash,
trade or volume discounts, insurance proceeds, rebates, or dividends received; payroll and
personnel records; and supporting documentation for the aforesaid documents and records.
The provisions in this section shall apply to the City, the Stadium Developer and
their officers, agents and employees. The City and the Stadium Developer shall incorporate the
provisions in this section in all subcontracts executed by the City or Stadium Developer in
connection with the perfoiniance of this Agreement.
Nothing in this section shall impair any independent right the Stadium Developer
may grant to the County to conduct audit or investigative activities. The provisions in this
section are neither intended nor shall they be construed to impose any liability on the County by
the City, the Stadium Developer or third parties.
53
Section 10.14 Community Development District
The City, the County and the Team shall take such steps as necessary pursuant to
and in accordance with Chapter 190, Florida Statutes, (the "Act"), to establish a Community
Development District ("CDD") for the purpose of developing, financing, operating, managing
and maintaining certain basic infrastructure, public improvements and community facilities
(collectively, "CDD Improvements") for the Entire Site. The City, the County and the Team
agree that the approval of this Agreement by the parties does not constitute approval of those
matters set forth in Chapter 190, Florida Statutes, which require approval by the Commission and
the Board. Therefore, the City, the County and the Team agree that as a matter of their sovereign
power and legislative authority if the City Commission and the Board, as the case may be, do not
approve the matters set forth in Chapter 190, Florida Statutes, the failure to approve such matters
shall not be deemed an event of default under this Agreement and the parties shall not be liable
to each other. Subject to Section 7.07, the types and extent of the CDD Improvements shall be
as determined by the City as part of the implementation of the development plan for the Entire
Site and as permitted by the Act, provided that in no event shall the Team Affiliate be
responsible for the repayment of any bonds issued for the CDD Improvements or otherwise be
responsible for the funding of the CDD, without its express consent. To the extent permitted by
the Act the Team shall be permitted to have one member on the Board of Supervisors of the
CDD.
[End of Agreement. Signatures are on the following page.]
54
The County, the City, and the Team have executed this Agreement as of
, 2008.
MIAMI-DADE COUNTY, FLORIDA
By
Name:
Title:
Attest:
Name:
Title:
CITY OF MIAMI, FLORIDA
By
Name:
Title:
Attest:
Name:
Title:
FLORIDA MARLINS, L.P.
By DOUBLE PLAY COMPANY
Its General Partner
By:
Name:
Title: