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CITY OF MIAMI
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MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding ("MOU") is entered into this day of
, 2011 ("Effective Date"), by and between the City of Miami Department of
Off -Street Parking a/k/a Miami Parking Authority, an agency and instrumentality of the
City of Miami located at 40 N.W. 3"' Avenue, Miami, FL 33128, and the City of Miami,
a municipal corporation of the State of Florida located at 3500 Pan American Drive,
Miami, FL 33133, which owns the parking facilities and retail spaces included within the
multi -level structures at the site of the Miami Marlins, Baseball Stadium located at 1502
and 1402 NW 7th Street and 1502 and 1402 NW 46' Street, Miami, FL.
RECITALS
WHEREAS, the City of Miami ("City") is a municipal corporation and pursuant
to state law and the municipal charter has governmental, corporate and proprietary
powers that allows it to conduct municipal government, perform municipal functions and
render municipal services, and may exercise any power for municipal purposes except as
otherwise provided by law; and
WHEREAS, Section 23 of the City of Miami Charter created and established an
agency and instrumentality of the City of Miami, named the "Department of Off - Street
Parking of the City of Miami" ("MPA") which operates, manages and controls the off-
street parking facilities of the City and all properties pertaining thereto; and
WHEREAS, MPA has full power and authority to acquire, own, use, hire, lease,
operate and dispose of real property and personal property and any interest therein,. for
the purpose of constructing, maintaining or operating off-street parking facilities as shall
be necessary in the judgment of the off-street parking board, and to make and enter into
all contracts necessary or incidental to the exercise of its powers and the perfoiiiiance of
its duties and functions with respect to the operations, management and control of said
facilities; and
WHEREAS, the City owns certain real property upon which it is developing
improvements consisting of parking facilities and retail establishments located therein
(the "Parking Facilities") as set forth in Exhibit A; and
WHEREAS, such Parking Facilities are being developed by the City in
conjunction with Miami -Dade County and as part of the governmental project known as
the Miami Marlins Baseball Stadium; and
WHEREAS, the Parking Facilities, as shown in Exhibit A, encompass the
surface lots and multi -level structures designated as parking areas, toll plazas, control
devices, entrances, exits, parking office space, and valet parking services, if any, and any
and all things necessary to operate such parking facilities ("Parking Component"), in
addition to retail spaces included within the multi -level structures ("Retail Component");
and
WHEREAS, by virtue of that certain City Parking Agreement ("City Parking
Agreement") entered into on April 15, 2009, between the City, Marlins Stadium
Operator, LLC, and Miami -Dade County, the City is to operate the Parking Facilities for
the use of the Miami Marlins Baseball Team and guests of Stadium Events, as defined
therein. A true and correct copy of the City. Parking Agreement is attached as Exhibit B
and incorporated hereto; and
WHEREAS, by virtue of that certain Assignment and Assumption Agreement
("Assignment .and Assumption Agreement") entered into on May 7, 2010, between
Marlins Stadium Operator, LLC and Stadium Parking, LLC, the City's duties to operate
are to be rendered to Stadium Parking, LLC. A true and correct copy of the Assignment
and Assumption Agreement is attached as Exhibit C and incorporated hereto; and
WHEREAS, MPA desires to provide, and has the authority, knowledge and
experience to manage and operate the Parking Component at the Parking Facilities for the
City; and
WHEREAS, the City issued a Request for Letters of Interest ("RFLI") with the
intent to employ the services of a leasing agent, or property manager, or both, for the
leasing and management ofthe Retail Component; and
WHEREAS, the City intends to enter into an agreement with the selected
respondent to the RFLI to serve as the exclusive leasing agent for the Retail Component;
and
WHEREAS, this MOU furthers the purpose of making the most efficient use of.
the City's and MPA's powers by cooperating on a basis of mutual advantage and thereby
operating and managing the Parking Facilities in a manner that will maximize benefits to
the governmental project and health, welfare and economic well being of the City; and
WHEREAS, pursuant to Resolution 11- the City Commission has
authorized the City Manager to execute this MOU with MPA; and
WHEREAS, pursuant to Resolution 11- the MPA Board has authorized
the Chief Executive Office to execute this MOU with the City;
NOW THEREFORE, the Parties are entering into this MOU in order to establish
the terms and conditions that will be provided for in an Interlocal Agreement and Lease
for the purpose of leasing to MPA certain portions of the Parking Facilities and
establishing the parties' responsibilities and obligations with respect to the operation and
management of the Parking Component and the Retail Component including meeting the
City's obligations set forth in the City Parking Agreement, providing the public with
convenient and affordable parking and maximizing the revenues from the Parking
Component and Retail Component.
2
The following Exhibits, which form a part of this MOU and are to be incorporated herein,
are attached:
Exhibit A
Exhibit B
Exhibit C
Parking Facilities
City Parking Agreement
Assignment and Assumption Agreement
The parties acknowledge the City's contractual commitments under the various Stadium
Agreements governing the construction; operation and management of the Baseball
Stadium and ancillary facilities, along with the City's• outstanding indebtedness on the
Parking Facilities. These contractual commitments and obligations issued prior to the
date of this MOU and the documents governing same are hereby incorporated by
reference and shall govern, if any provisions of this MOU are in conflict therewith.
The Parties shall work diligently to prepare and present to their respective boards. the
Interlocal Agreement and Lease in an expeditious manner.
An ``Interlocal Agreement" is an agreement entered into by public agencies pursuant to
Florida Statute Section 163.01(5), Florida Interlocal Cooperation Act of 1969. The
Interlocal Agreement and Lease may provide for:
(a) The purpose .of such Interlocal Agreement and Lease and the method by which the
purpose will be accomplished.
(b) The duration of the Interlocal Agreement and Lease and the method by which it may .
be rescinded or terminated by the City or MPA prior to the stated date of teiiuination.
(c) The manner in which the Parties to the Interlocal Agreement and Lease will provide
from their treasuries the financial support for the purpose set forth in .the Interlocal
Agreement and Lease.
(d) The manner in which funds generated from the leasing, operation and management of
the Parking Facilities may be paid and disbursed.
(e) A method or formula for equitably providing for and allocating and financing the
capital and operating costs, including payments to reserve funds authorized by law and
payments of principal and interest on obligations.
(f) The manner of employing, engaging,. compensating, transferring, or discharging.
necessary personnel.
(g) The fixing and collecting of charges, rates, rents, or fees, where appropriate, and the
making and promulgation of necessary rules and regulations and their enforcement.
(h) The manner in which purchases shall be made and contracts entered into.
(i) The operation, maintenance, lease, or sale of real or personal property.
3
(j) The acceptance of gifts, grants, assistance funds, or bequests.
(k) The manner of responding for any liabilities that might be incurred through
performance of the Interlocal Agreement and Lease and insuring against any such
liability:
(1) The adjudication of disputes or disagreements.
(m) The manner in which strict accountability of all funds shall be provided for and the
manner in which reports of all receipts and disbursements shall be prepared and presented
to each participating party to the Interlocal Agreement and Lease.
(n) Any other issues necessary and proper for the management and operation of the
Parking Facilities.
(o) The acknowledgement that the Office of the City Attorney shall provide legal services
to the parties to the Interlocal Agreement and Lease.
Nothing in this MOU, express or implied, is intended to (a) confer upon any entity or
person, other than the expressed parties herein, any rights or remedies under or by reason
of this MOU as a third -party beneficiary, or otherwise; or (b) authorize anyone. not a
party to this MOU to maintain an action pursuant to or based upon this MOU.
Any notice provided pursuant to the terms and provisions hereof shall be deemed to be
delivered when sent by hand delivery, delivery service or by certified mail, return receipt
requested, postage prepaid and received by the addressee. Notices shall be sent to:
If to the CITY:
With a copies to:
City Manager
City of Miami
Miami Riverside Center
444 S.W. 211.d Avenue
10th floor
Miami, Florida 33130
City Attorney's Office
City of Miami
Miami Riverside Center
444 S.W. 2" d Avenue
9th floor
Miami, Florida 33130
Department of Public Facilities
City of Miami
Miami Riverside Center
444 S.W. 2°`' Avenue
3rd floor
4
If to MPA:
With a copy to:
Miami, Florida 33130
Chief Executive Officer
Miami Parking Authority
40 N.W..3rd Avenue
Miami, Florida 33133
City Attorney's Office
City of Miami
Miami Riverside Center
444 S.W. 2°`' Avenue
9th floor
Miami, Florida 33130
This Memorandum of Understanding was developed jointly by the City of Miami and the
Miami Parking Authority and the parties acknowledge that they will work together to
realize the goals and objectives articulated in this document.
IN WITNESS WHEREOF, the parties have caused this MOU to be executed by their
respective and duly authorized officers the day and year first above written.
CITY OF MIAMI, a Florida municipal.
ATTEST: corporation
By:
Priscilla A. Thompson, City Clerk Johnny Martinez, City Manager
Department of Off -Street Parking d/b/a Miami
Parking Authority, an agency and instrumentality of
the City of Miami
ATTEST:
By:
Arthur Noriega
Chief Executive Officer
APPROVED AS TO FORM AND APPROVED AS TO INSURANCE
CORRECTNESS: REQUIREMENTS:
Julie O. Bru
City Attorney
Calvin Ellis
Risk Management Director
5
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EXHIBIT "B"
City Parking Agreement
Execution Copy
CITY PARKING AGREEMENT
BY AND AMONG
THE CITY OF MIAMI,
MIAMI-DADE COUNTY
AND
MARLINS STADIUM OPERATOR, LLC
APRIL _, 2009;
9
TABLE OF CONTENTS
Article I DEFINED TERMS 1•
Article II PARKING FACILITIES ...........7
Article III TERM .7
3.1 Tenn 8
3.2 Options to Extend Term 8
3.3 Termination 8
Article IV DESIGN AND CONSTRUCTION OF PARKING FACILITIES 8
4.1 Design 8
4.2 Parking Development Requirements 9
4.3 Omitted 10
4,4 Construction Work 10
4.5 Project Costs 12
4.6 Master Project Schedule ,..12
4..7 Right to inspect and Receive information 12
4.8 Number of Spaces I 3
4.9 Liens 13
Article V OPERATION OF PARKING FACILITIES 13
5.l Operation 13
5.2 Revenue .14
5.3 Expenses 14
5.4 Maintenance and Repairs 14
5.5 Insurance 15
5.6 Third Party Manager 15
Article VI USE OF PARKING FACILITIES BY TEAM AFFILIATES 15
6.1 Team Reserved Parking 15
6.2 Stadium Event Parking 15
6.3 Payments for Stadium Event Parking I 6
6.4 Staffing 18
6.5 Soccer Stadium; Other Development 19
6.6 Advertising Rights, Concessions and Promotional Rights 1 9
Article VII Omitted 21
Article VIII DEFAULTS AND REMEDIES 21
8.1 Stadium Operator Default 21
8.2 Government Party Default 21
8.3 Remedies 22
8.4 Self -Help Remedies 22
8.5 Termination 23
8.6 Exclusive Remedies 23
•
Article IX INDEMNIFICATION 23
9.1 Indemnification by Stadium Operator 23
9.2 Indemnification by City and County • • • 24 .
9.3 Indemnification Procedures ?5
9.4 Survival' • - • 26
Article X. ARBITRATION 26
10.1 Arbitration 26
• 10.2 •. Expedited ADR • 27
10.3 No Indirect Damages 28
Article XI MISCELLANEOUS 28
11.1 • Notices • .28
11.2 Merger Clause 28
11.3 Amendment 29
1 1.4 Binding Effect 29
11.5 Waiver 29
11.6 Nonrecourse Liability of.Stadium Operator Personnel 29
11.7 Non -Recourse Liability of City Personnel 30
11.8 Non -Recourse Liability of County Personnel 30
11:9 Assignment �0
11.10 Consent of Parties 31
-11.11 Party Representatives 31
11.12 Headings 33
11.13 General Interpretive Provisions 33
11.14 Severability 33
11.15 Further Assurances 34
11.16 Absence of Third -Party Beneficiaries 34
ii
1 1.17 Governing Law 34
1 1.18 Time of Essenc- 34
l ] .19 Relationship of Parties 34
1 1.20 Sovereign Rights 34
1 ] .21 Force Majeure 35
11.22 Major League Baseball Requirements 35.
l 1.23 Mutual Covenants 35
11.24 Anti -Discrimination Clause 36
l 1.25 Valid Agreement 36
1 1.26 Books and Records; Audit 36
11.27 County Inspector General and Commission Auditor .. 36
11.28 Counterparts 37
iii
CITY PARKING AGREEMENT
This City Parking Agreement (this "Agreement") is made and entered into this (''day of
April, 2009 by and among the City of Miami, a municipal corporation of the State of Florida (the
"City'.'), Marlins Stadium Operator, LLC, a Delaware limited liability company _(the "Stadium•
• Operator"),and solely for. the purposes of the County Provisions (as defined in Article I), •Miami
Dade County,.a_politica]_sub_divisi.on.of..the State of Florida (the "County," and 'together .with .the
City and the Stadium Operator, the "Parties") •
RECITALS
. A. • On March 3, .2008, the County, the. City: and Florida Marlins, L.P. executed a
Baseball Stadium Agreement (the "BSA") outlining the general teens and conditions under
which they would move forwardto design, develop, construct and operate a Major League
Baseball stadium and related parking facilities .to be located on the Entire :Site. • (Capitalized •
teens used herein are defined in Article I.)
B. Contemporaneously with the execution of this Agreement: (i) the County, the City
and the Stadium Developer are entering into the Construction Administration Agreement that
provides for the design, development and construction of the Baseball Stadium and the Public
Infrastructure (as defined in the Construction Administration Agreement), and (ii) the County,
the City and the Stadium Operator are entering into the Operating Agreement that provides for
the operation and management of the Baseball Stadium by the Stadium Operator. once the
Baseball Stadium has been constructed •as provided in the Construction .Administration
Agreement.
• C. This Agreement provides for the :construction, operation and use of parking •
facilities to be made available to users of the Baseball Stadium.
NOW, THEREFORE, the Parties agree as follows:
ARTICLE
DEFINED TERMS
As used in this Agreement, the following terns have the following meanings:
"AAA" is defined in Section 10.1.
"Affiliate" means, with respect to any Person, another Person that directly or indirectly
owns or controls, is owned or controlled by, or is under common ,Control with such Person. For
purposes of this definition, one Person owns another when it owns more than fifty percent (50%).
of the equity interests in the other Person and one Person "controls" another when it has the right
to exercise more than fifty percent (50%) of the voting power of the other P erson.-
"Applicable Law" means any applicable law, statute, code, ordinance, administrative
order, charter, resolution, order, rule, regulation, judgment, decree, writ, injunction, franchise,
permit or license, of any Governmental Authority having jurisdiction with respect to the Parking
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Premises or to Persons or activities within the Parking Premises, now existing. or hereafier
enacted, adopted, promulgated, entered, or issued.
"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 giiidelines among Major League Baseball clubs and Major League .Baseball;
and (ii) any present .and future mandates, rules, regulations, policies, interpretations, bulletins or
directives issued or adopted by Major League Baseball applicable to Major League Baseball.
Clubs generally.
"Baseball Stadium" means the stadium being constructed on the Baseball Stadium Site
pursuant to the Construction Administration Agreement.
"Baseball Stadium Site" means the area of land depicted as such on Exhibit A:
"Board" means the Board of County Commissioners of Miami -Dade County.
"BSA" is defined in the Recitals to.this Agreement.
"Business Day" means any day other than a Saturday, Sunday or legal or bank holiday in
the County or the City. If any time period set forth in. this Agreement expires on a day other than
a Business Day, such period shall be extended to and through the next succeeding Business Day.
"Casualty" is defined in Section 5.4(b).
"Certificate of Occupancy" means a .certificate, whether temporary or permanent, issued
by the City's building official permitting public occupancy and use of the Parking Facilities.
"City" is defined in the Preamble to this Agreement.
"City Default" is defined in Section 8.2.1.
"City Parking Project" means the design, development, construction and equipping of the
Parking Facilities in accordance with the terns of this Agreement.
"City Parking Site" means the areas of land depicted as such on Exhibit A.
"City Personnel" is defined in Section 11.7.
"City Representative" is defined in Section 11.11.
"Claim" is defined in Section 9.3.
"Commission" means the City Commission of the City of Miami.
7
"Construction Administration Agreerent" means the Construction Administration
Agreement among the County, the City and the Stadium Developer dated as of the date of this
Agreement, as it may be amended and/or restated.
"County" is defined in the Preamble to this Agreement,
"County. Default" is defined in Section 8.2.2,
"County Personnel" is defined in Section 11.8.
"County Provisions" means Articles I and II; Section 3.3; and Articles IV„ VIII, IX , X
and XI.
"County'Reuresentative" is defined in Section 1 1.11. .
"Default"means a Stadium Operator Default, City Default or County Default..
•
"Design -Standards" is defined in Section 4.1.
"Entire Site" means the area of land described in Exhibit A.
"Expedited ADR" is defined in Section l 0.2.
"Expedited ADR•Dispute" is defined in Section 10.2.
"Force Majeure" means a war, insurrection, strike or lockout, riot, hurricane, flood,
earthquake, fire, casualty, act of God, act of the public enemy, epidemic, quarantine restriction,
freight embargoes, lack •of transportation, governmental restriction, court order; unusually severe
Weather, act •or.the failure to act of any public -governmental agency or entity, ten-orism,.or any
other cause in each base (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.
"Government Indemnitee" is defined in Section 9.1(a).
"Government Party" means each of the County and the City.
"Governmental Authority" means any federal, state, county, municipal or other
governmental department; entity, authority, commission, board, bureau, court, agency, or any
instrumentality of any of them.
• "Incremental Labor Costs" shall_mean the actual labor costs incurred by the City in the
staffing of the Parking Facilities for a Stadium Event (other than a regular season MLB Flome
Game) at staffing levels determined in accordance with Section 6.4., in excess of the labor costs
3
the City would have otherwise incurred at that time in the operation of the Parking Facilities .for
dates other than Stadium Events, soccer events or other extraordinary events.
"Indemnified Party" is defined in Section 9.3.
"Indenlnitor" is defined in Section 9.3.
"Losses" is defined in Section 9.1(a).
"Major League Baseball" Means, individually and collectively, the Office of the
Commissioner of Baseball, the Commissioner of Baseball, the Major League Baseball clubs,
Major League Baseball Enterprises, Inc., Major League Baseball Properties, Inc., Major League
Baseball Properties Canada, Inc., Major League Baseball Productions, MLB .Advanced Media,
Inc., MLB Advanced Media, L.P., MLB• Media Holdings, L.P., MLB Media Holdings,, Inc.,
MLB Online Services, Inc., each of their respective present and future affiliates, assigns and
successors, and any other entity owned equally by the Major League Baseball clubs.
"Major Sponsor" means a Person that spends at least the following amounts in -any
applicable Operating. Tear_ with the Team Affiliates (collectively) for Advertising (as defined in
the Operating Agreement) or other rights or benefits relating to the Team Affiliates and/or the
Baseball Stadium: (i) $500,000 in any of Operating.Years 1-15, (ii) $525,000 in any of Operating
Years 16-25, or (iii) $600,000 in any of Operating Years 26-35.
"Master Project Schedule" is defined in the Construction Administration Agreement:
"M•LB Events"means, collectively; MLB Home Gaines and MLB Jewel Events.
"MLB Horne- Games" means each of the Team 's scheduled or rescheduled baseball
games at the Baseball Stadium, including exhibition, spring training, regular season, playoff and
World Series games.
"MLB Jewel Events" means the Major League Baseball All -Star Game (and related
events), World Baseball. Classic and other Major League Baseball -controlled events expected to
have an attendance of more than 5,000 people scheduled or rescheduled at the Baseball Stadium.
"MLB Reserved Dates" means all dates (x) on which MLB. Events have been scheduled
(or rescheduled) or (y) that the Team is required to reserve for the scheduling of MLB Home
Games (including .potential post -season games) or MLB Jewel Events under MLB Rules and
Regulations.
"MPA" means the Departnent,of Off -Street Parking of the City, d/b/a the Miami Parking
Authority.
"Neutral" is defined in Section 10.2..
"NDZs" means the areas that have been designated in the City's Community
Development Plan as Neighborhood Development Zones. The NDZs have been qualified by the
Labor Market Statistics as Targeted Employment Areas due to their high unemployment rates
and are depicted in Exhibit-P. •
• "Non -Relocation Agreement" means the Non -Relocation Agreement among the. Team,
the County and the City dated as of the date of this Agreement, as it may be amended and/or
restated.
• "Operating Agreement" means the Operating Agreement among the County, the:.City.and
the Stadium. Operator _dated as of the date of this Agreement,' as it may be amended and/or
restated.
"Operating Standard".is defined in Section 5,1(f),
"Operating Year" Means (i) the period commencing on the Substantial Coinnpletion Date
and ending on the next succeeding October 31 and (ii) each subsequent twelve (12) month period
during the Term commencing on the November 1 following the Substantial Completion Date and
ending on the next succeeding October 31; provided that if this Agreement terminates on a date
other than October 31,. there shall be a partial last Operating Year ending on the date of such
termination.
"Other Development" is defined in the.Construction Administration Agreement.
"Other Events" means Stadium Events that are not MLB Events.
"Parking Architect" is defined in Section 4.1.
•"Parking Criteria" is defined in Article II.•
.
"Parking Design Documents"means, collectively, (i) the schematic design documents of
the Parking.Facilities,.as may be amended from time to time in accordance•with this Agreement,
illustrating the scale and relationship of the components of the Parking Facilities, _ (ii) the design
development documents of the Parking .Facilities, as may be amended from time, to time in
accordance with this Agreement, based upon and refining the:schenatic design documents set
forth in clause (i), illustrating the scope, relationship, forms, size and appearance of the Parking
Facilities by means of plans; sections and elevations, typical construction details;'and equipment
layouts and architectural drawings, and (iii) the final construction drawings and specifications, as
may be amended from time to time in accordance with this Agreement, setting forth the complete •
design of the Parking Facilities in sufficient detail for the permitting and construction of the
Parking Facilities.'
"Parking Development Requirements" is defined in Section 4.2(a).
"Parking Facilities" is defined in Article II.
"Parking Final Completion" means the occurrence of all of the following: (i) the Parking
Architect has signed and ,delivered to the City and the Stadium Operator a certificate of final
completion, (ii) a permanent Certificate of Occupancy has been issued with respect to the
Parking Facilities, and (iii) punch list items have been completed. •
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"Parking.Manager" is defined in Section 5.6.
"Parking Premises" means, collectively, the City Parking Site and the Parking Facilities.
"Parking Structures". -means the parking structures to be constructed by the City on. the
City Parking Site as described in the Parking Criteria.
"Parking Substantial Completion" means the.occurrence of both of the following:(i) the
Parking Architect has signed .and delivered to the City and the Stadium Operator a certificate
certifying that the Parking Facilities have been substantially completed subject to the coMpleiion
of minor punch list items that do not materially affect the use of the Parking Facilities as
contemplated by this Agreement, and (ii) a temporary or permanent Certificate of Occupancy has
been issued in respect of the Parking Facilities. •
"Parties" is defined in the Preamble to this Agreement.
"Person" means any natural. person, firm, partnership, association, corporation, limited
liability company, trust, public body, authority, governmental unit or other entity. •
"Promotional Rights" is defined in the Operating Agreement, and shall include all
Revenue Rights referred. to therein.
"RFP" means the solicitation documents for the procurement of a contractor . or•
construction manager for the perforihance and management of the construction of the Parking
Facilities in accordance with Applicable Law.
"Signage" means all signage (whether permanent or tennporary) in or on the Parking
Premises, including banners, fascia boards, displays, message centers, advertisements, signs and
marquee signs,. in each case, in accordance with this Agreement. The size, dimensions, location
and design of all Signage shall be subject to Applicable Law respecting such Signage.
"Small Business/Local Workforce Goals" means the local businesses and workforce
goals to be included in the RFP ..to be issued by the City for the development of the Parking
Facilities as provided in Section 4.3..
• "Stadium Agreemeiits" means, Collectively, this Agreement, the Construction
Administration Agreement, the Operating Agreement, the Non -Relocation Agreement, and the
Assurance Agreement.
"Stadium and Parking MUSP" is defined in the Construction Administration Agreement..
"Stadium Developer" means Marlins Stadium Developer, LLC, a. Delaware limited
liability company, and its permitted successors and assigns.
"Stadium Event" means any event held at the Stadium Premises, including: MLB Home
Games; MLB Jewel Events; Team practices, exhibitions, clinics, promotions and fan activities;
and other professional or amateur sporting events or exhibitions, concerts, trade shows,
conventions, general audience, family or other targeted audience shows, performances or
6
exhibitions. Notwithstanding the foregoing, Stadium Events shall -not include Community
Events (as defined. in the Operating Agreement). .
"Stadium Operator" means Marlins Stadium Operator, LLC, a Delaware limited liability
company, and its successors and assigns-. permitted under Section 1 1.9(a).
.."Stadium .O.nerator.Default'.'..is-defined in Section 8.1.
"Stadium Operator h demnitee" is defined in.Seon on 9.2(a).
"Stadium Operator Personnel" is defined in Section 11.6.
"Stadium Operator Representative" is defined in Section 1 l .1 1.
"Stadium Premises" is defined in .the Operating Agreement.
"State"-i»eans the State of Florida.
"Substantial Completion Date" is defined in the_Operating Agreement.
"Surface Lots" means the surface parking lots to be constructed by the City on the City
Parking Site as described in the Parking Criteria.
"Team means Florida Marlins, L.P., a Delaware limited partnership, and •its permitted
successors and assigns..
"Team Affiliate" means the Team, the Stadium Operator, the Stadium Developer. and any .
other entity that is an Affiliate of the Team:
"Tenn" is defined in Section 3.1,
• "Transfer" is defined in Section 11.9.(a).
• "Work" is defined in Section 4,4.
ARTICLE II
PARKING FACILITIES
The City shall construct or cause to be constructed, on the City Parking Site, Parking
Structures and Surface Lots.(together, the•"•Parking Facilities") that will include approximately
6,000 (subject to Section 4.8)parking- spaces held:for use as provided in this' Agreement, and will
operate and provide access to such Parking Facilities, on the terns •set forth in this Agreement.
The general configuration, layout and design features of the Parking Facilities are more
particularly described in Ihe Parking Criteria attache,d hereto as Exhibit B (the "Parking
Criteria."), and will be reflected. in the •Parking Design Documents. The City estimates the
construction cost of the Parking Facilities at.$94 million. The.Parties acknowledge that the City
will not use ad -valorem revenues to fund- construction of the Parking Facilities and the Parties
further acknowledge that if the cost of construction (exclusive of soft costs and tenant
improvements)•exceeds $94 million the number of parking spaces will be reduced accordingly.
ARTICLE III
• TERM
• 3.1 Term. The teen of this Agreement shall commence on the date hereof and, shall
expire on October 31 in the year in which .the twentieth (201h) annual anniversary of the
Substantial Completion Date occurs, unless sooner terminated pursuant to . any , applicable
provision of this Agreement (such term as it may be so terminated, or as it may be extended
pursuant to• Section 3.2, being referred to herein as the "Term").
3.2 gptions•to Extend Term. The Stadium Operator shall have the option (but not the
obligation) to extend the Tenn on the same terms and conditions set forth in this -Agreement for
(a) an additional term of ten (10) years, and (b) if so extended pursuant to clause (a), a further
additional term of five (5) years. The Stadium Operator shall exercise its option to extend the
Term- by delivering written notice of such exercise to. the City no later than three .hundred .sixty-
five (365) days prior to the expiration of the initial Tenn or any extended Term, as applicable..
3.3 Termination. Notwithstanding anything to the contrary in this Agreement, this
Agreement shall terminate with respect to the Stadium Operator upon the termination of the-.
Operating Agreement. Upon any early termination of the Operating Agreement, pursuant. to
Article XVII thereof, the County shall have the right, at its sole discretion, within." 80 calendar
days following the early termination of the•Operating Agreement, to elect to assume the Stadium
Operator's rights and obligations under this Agreement for the remainder of the Term. or such
earlier date upon which title to the Baseball Stadium Site may revert from the County to, or at
the direction of, the City pursuant to the Warranty Deed referred to in ,the Construction
Administration Agreement; provided, however, that upon expiration of such 180 clay period, if
the County is able to identify a replacement tenant who fits the criteria set forth in the Warranty
Deed prior to the reversion of the Baseball Stadium site back to the City, the Government Parties
agree to negotiate in good faith with such replacement tenant to enter into a new parking
agreement.
ARTICLE IV
DESIGN AND CONSTRUCTION OF PARKING FACILITIES
4.1 Design. The City shall manage and control the design of the Parking Facilities,
including the hiring of an architect (the "Parking Architect"), and their construction, (a) to
support a forty (40)-minute maximum. empty time; •(b) in conformity with (i) the. Parking
Criteria, (ii) the terms of this Agreement and the other Stadium Agreements, (iii) the functional
requirements of the Baseball Stadium as contemplated in the Construction Administration
Agreement and the Operating Agreement, and (iv) Applicable Law; and (c) in a manner that is
architecturally harmonious with the Baseball Stadium and does not contain highly reflective
materials facing the Baseball Stadium ((a)-(c), the "Design Standards"). The Stadium Operator
Representative and the County Representative shall each have. the right to review, comment upon
and approve each of the Parking Design Documents, provided such review and approval (1) shall
be limited to their confirmation that the applicable Parking Design Documents are in conformity
with the Design Standards, and.(2) shall not otherwise .be.unreasonably withheld, •conditioned or
delayed. The City shall deliver copies of each Parking Design Document, and any amendments
or modifications thereto, to the Stadium Operator Representative and the County Representative
promptly after they are •prepared by the Parking Architect: Each of the Stadium Operator•
Representative and .the. County Representative shall notify the City in writing, within ten (10)
Business Days after receipt of the applicable Parking Design Documents, if it•objects to all. or
any portion .of any Parking Design Document for lack of conformity to theDesign .Standards. • In
such event, the objecting •Party shall provide to. the City detailed comments setting forth, the
reasons that it has determined that the applicable Parking Design Document. is' nof generally
consistent in all material respects with the Design Standards. If, within such ten (10) Business
Dayperiod, the Stadium Operator Representative or the County Representative do not properly
object to the Parking Design Document as.set forth in this. Section 4.1, then the Stadium Operator
Representative or the County Representative (as applicable) shall be deemed to have approved.
the applicable Parking Design Document. Similarly, if the Stadium Operator Representative and
the County Representative 'reject only certain specified elements in the applicable Parking
Design.•Document as:non-conforming,• then the elements to which they do not • object shall he
deemed approved. if the City disagrees with any of the objecting Party's .comments, the
objecting Party and the City shall use good faith efforts to resolve any such objections and, if
applicable, revise the Parking Design Documents, in an expeditious manner so as not to delay the
production•of the Parking Design Documents or the City Parking Project • The City shall cause
the Parking Architect to revise the applicable Parking Design Documents to address any
comments raised by the County Representative or Stadium Operator Representative with which
the City agrees and shall submit revised Parking Design Documents to the• County
Representative and Stadium Operator Representative for their review and confirmation as
provided' above. The County Representative and Stadium: Operator Representative shal] have
five (5) BusinessDays from the receipt of the revised Parking Design Documents to. review and
approve them. The failure of the County Representative or Stadium Operator Representative to
respond within such five (5) Business Day period shal] be deemed approval. If the objecting
Party and the City are not able to resolve any disagreements under this Section 4.1, either of
them may file for Expedited .ADR pursuant to Section 10.2.
4.2 • Parking Development Requirements.
(a) The City or the County, as •applicable, shall expeditiously process all
applications for consents, approvals and permits necessary for the timely construction of the
Parking Facilities, which may include, if applicable, without limitation: (i) major use special
permit and any other special permits and/or special exception applications, (ii) road, alley, and/or
public right of way closure(s) and relocation petitions, (iii) re -platting petitions, including the
Replat, (iv) re -zoning or zoning ,variance applications, (v) Miami -Dade Department of
Environmental Resources Management and Miami -Dade Water and Sewer Department
approvals, (vi) petitions to relocate al] public and private utilities, including, without limitation,
electric, gas, cable, telecommunication, water, sewer, and storm drainage facilities, located
within the City Parking Site to areas to be located outside the'boundary of the City Parking Site,
and (vii) building permits (collectively, including (i) — (vii), •the "Parking Development
Requirements"). The City and the County shall each act reasonably to expedite any applications
for actions or approvals requested or. required of them in connection with the permitting and
construction of the Parking Facilities to allow for the timely completion of the Parking Facilities.
9
C )
The City and the County shall use reasonable and diligent efforts to issue and facilitate lawful
applications for permits, the consideration of which is a ministerial function, that are necessary
for the timely•construction, occupancy .and completion of the Parking Facilities.
(b) The City has confirrrred via separate letter from its Zoning Administrator
and Director of Planning, respectively; that the proposed use of the Entire Site for the. Parking
Facilities is consistent with the current zoning and the City's Comprehensive' Land Use Plan -for
the Entire Site.-
4.3 Construction Manager. The City shall retain a contractor or construction manager
for the performance and management of the construction of the Parking Facilities in accordance
with Applicable Law. The City shall include in the RFP Small Business/Local Workforce Goals
to be determined prior to the issuance of the RFP. The goals shall require that preference be
given to small'businesses-having an actual place of business in, and workers with a residence in,
the DTAs (as. defined in the County's CWP Regulations) and the NDZs. The Small
Business/Local Workforce Goals for the construction of the .narking Facilities will be established
• for each construction trade package by the City Manager. In the event the City wishes.to use or
design a program similar to the Miami -Dade 'County Community Small .Business Enterprise
programs and Community Workforce Program (the "Local Business Programs"), .the County
agrees to work in good faith with the City in establishing the procedures that will allow the City
and the contractor or construction manager to use the databases and services of the Local.
Business Programs, including (i) the County SBD will provide a listing of all certified CSBE.
fins (for the relevant construction trades) with their business addresses, .(ii) pennitting the
Construction Manager to utilize the Local Business Programs to satisfy the Small
Business/Local Workforce Goals, including but not limited to, submitting job hiring requests
through the County's Small Business Department (SBD) clearinghouse, and other .union and
non -union clearinghouses, and (iii) directing.the SBD to submit the hiring requests to all DTAs
and.NDZs, with the goal of filling such hiring needs as efficiently as possible and with as many
qualified candidates from within the DTAs and NDZs as possible.
4.4 Construction Work. The City shall be responsible for managing, directing,
supervising, coordinating and controlling the City Parking Project (the "Work"), including the
matters addressed in Sections 4.1 through 4.3 and the continuous and orderly performance of all
aspects of the following:
(a) retaining and managing the services of a construction. manager and other
contractors and personnel needed to improve the Surface Lots, as agreed to by the Parties,
construct and equip the Parking Structures, and otherwise perform the Work in accordance with
the Parking Design Documents; the Parking Criteria and the Master Project Schedule;
(b) maintaining, or causing to be maintained, complete and accurate books
and records, consistent with industry standards, regarding the City Parking Project, including the
Parking Design Documents;
(c) taking all action reasonably required to comply with all Applicable Laws
and taking all reasonable action required to cause the Parking Architect and contractors to design
and construct the Parking Facilities in accordance with Applicable Laws;
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(d) furnishing promptly to the Stadium Operator Representative and the
County Representative all documents and information required to be provided to them pursuant
to this Agreement and all other information within the City's possession or control relating to the
City Parking Project that the Stadium Operator Representative or the County Representative may
reasonably request (except :to the extent such -information may not be made available under_,.
Applicable Law);
(e) • notifying promptly the Stadium Operator Representative and the.-Connty
Representative.of any suit, proceeding or. action that is initiated or threatened:in: writing against
the City in connection :with the City Parking Project;
(f) providing the Stadium.. Operator Representative and the County
Representative, upon .the date, of Parking Final .Completion,. with a record set of the Parking
-Design Documents revised to show the "as -built" condition of the Parking Facilities and other
changes .made during constiuction.of the Parking Facilities;
(g) managing. punch .list and ..warranty work after Parking Substantial
Completion;
(h) providing the Stadium Operator Representative and the County
Representative with copies of any minutes prepared by the City or by •its contractors that are
received by the City, with respect to all project meetings;
(i) causing the completion of the Parking• Facilities in accordance with the.
approVed Parking Design Documents, the Design Standards, the Master Project Schedule. and
this Agreement;
(j) obtaining or causing to be obtained al] permits necessary for construction
of the City Parking Project in accordance with Section 4.2; .
• (k) . Maintaining the Parking Premises construction site in safe •condition,•
properly secured at all tinges with security against unpennitted access;
(I) subject to Section 5.4(c), promptly causing the repair and restoration of
any portion of the Parking Facilities affected by a Casualty;
(m) remediating, 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 ]ocated on, in or under or originating from the portion of the
City Parking Site, provided, the City shall have no obligation to conduct remediation of any
environmental contamination pursuant to this Agreement to the extent such contamination does
not impact the Parking Facilities or the Public Infrastructure;
(n) supervising and coordinating, or using reasonable efforts to cause the
construction manager to supervise and. coordinate, the construction of the Parking Facilities so
that the Parking Facilities are constructed, equipped, furnished and completed in a good and
workmanlike manner in accordance with this Agreement;. and
1l
(o) .providing the Stadium Operator Representative and the County
representative quarterly progress reports of the status of the City Parking Project through each
design phase and the construction of the Parking Facilities.
4.5 Project Costs. The City shall pay all costs and expenses for .the design,
develoninent, construction,: equipping and completion of the Parking Facilities, including (a) all
costs associated with any parking infrastructure required for/ the construction of the. , Parking
Facilities, (b) all amounts payable to the Parking Architect and contractors, (c) all_ permit fees
and other Parking Development Requireinent fees and costs, (d) all costs to remediate -(if -
required) the City Parking Site for construction of the Parking Facilities as provided in Section
4.4(m), and (e) all costs to equip the Parking Premises consistent with the Parking Criteria.
4.6 Master Project Schedule. The City shall use reasonable best efforts to .ensure that
the Work proceeds in accordance with the Master Project Schedule, subject to extensions
resulting from Force Majeure. The City shall cause Parking Substantial Completion. to occur no
later than thirty (30) days prior to the Substantial Completion of the Basebal] Stadium pursuant
to the Construction Administration Agreement, and Parking Final Completion .to occur as soon.
as practicable following Parking Substantial Completion. The Parking Facilities,. shall be
developed and constructed in a manner that will not delay or would reasonably be expected to
jeopardize Substantial Completion of the Baseball Stadium by the Targeted Completion Date or
. the Public Infrastructure by the Substantial Completion Date referenced in tlhe lvlaster. Project
• Schedule. Notwithstanding anything contained 'in this Section 4.6, the Stadium Operator.
acknowledges and agrees that in. the event the staging of construction for the Basebal] Stadium
interferes with or otherwise causes a delay in the City's construction of any of the Parking
Facilities, the construction schedules for the affected Parking Facility contained in the Master
Project Schedule shall be extended accordingly, provided that the City has provided the Stadium,
Operator with prompt written notice of any such interference with or delay to the construction of
the relevant Parking Facility.
4.7 Right to Inspect and Receive Information. The Stadium Operator Representative
(including the Architect and Construction Manager under the Construction Administration
Agreement) and the County Representative • shall be given an opportunity to inspect the
construction work and materials for the Parking Facilities as reasonably necessary to .verify that
the work and materials are in general conformity with the Design Standards. The Stadium
Operator Representative and the County Representative shall receive in writing from the City,
within ten (10) clays of providing the City with written request thereof, information regarding the
progress of the City Parking Project through each design phase and the construction of the
Parking Facilities. During the construction of the Parking Facilities, the Stadium Operator
Representative and the County Representative shall receive advance notice of, and shall have the'
right to attend, all scheduled meetings among the•City and project contractors related to the City.
Parking Project, and the right to inspect the Parking Facilities at all reasonable times, subject to
reasonable restrictions imposed by. the City or construction, manager. The City shall make itself
and the Parking Architect and contractors reasonably available to the Stadium Operator
- Representative, the County Representative and their representatives throughout the duration of
the City Parking Project in order to keep the Stadium Operator Representative and the County
Representative reasonably informed throughout the duration of the City Parking Project. Any
rights that the Stadium Operator Representative, the County Representative and their
12
representatives have under this Section 41.7 shall not be the basis for any liability to accrue to
them from the City or any other Persons for such monitoring or investigation or for the failure to
• have conducted such monitoring or investigation. • -
4.8 Number of Spaces: • The City shall have- the right to (a) replace spaces, in Parking.
Structures with spaces in Surface Lots on the City Parking Site; (b) reduce the number of spaces
in the Parking. Facilities, to approximately 5,700, and/or (c) relocate. the Surface Lots 'or any:
•
parking spaces to be located within Surface Lots to other surface lots located outside of the City
Parking Site that ate of comparable. distance -to the Baseball Stadium; provided that in no event
under (a) — (c) above shall the total niunber of spaces in the Parking Facilities (including any
surface lots and/or parking spaces located outside the City Parking Site as contemplated in clause .
(c) above). be less than 5,500. Notwithstanding the foregoing, the City shall have the.right to.
reduce the number of spaces in the Parking Facilities in the_event the cost of construction -.of the
Parking Facilities (exchisive of soft costs and tenant improvements) exceeds $94 million.
4.9 Liens. •Provided that no Stadium• Operator Default exists, the City shall use -
commercially reasonable efforts to cause the Parking Facilities to be constructed in accordance...
with the Parking Design Documents free and clear of any and all Liens except as otherwise
contemplated or permitted. -under this Agreement. In .the event any such Lien is filed by the
'Parking Architect, construction manager or any subcontractors or suppliers due to any • act or
omission of the City and provided that no. Stadium, Operator Default exists,. the City shall cause
• said Lien to be discharged or transferred to appropriate bond within thirty (30) days of recording.
If the City does not _discharge 'or transfer to • appropriate bond any such Lien within thirty (30)
clays of recording, the Stadivah•Operator shall have the:right; but not the obligation, to cause the
Lien to be released by any means .the Stadium Operator reasonably deems proper, including
payment of the .Lien from project funds. The City shall have the right to contest any such Lien in -
good faith and, so long as such contest does not result in•the imminent loss or forfeiture of•th.e-
City's title to the Parking Facilities, the Stadium Operator shall take no .actions permitted under
• • the preceding sentence.
. ARTICLE V .
OPERATION OF PARKING FACILITIES
5..1 Operation; Subject to Article VI and the other terms of this Agreement, the City;
through MPA or, in the event MPA declines to operate the.Parking Facilities, through a Third
Party Manager, as provided in Section 5.6, shall have the exclusive right, authority and
responsibility to operate, manage, maintain and control the Parking Facilities on a year-round
basis. These rights and responsibilities include:
(a) subject to Article VI with respect to Stadium Events, determining staffing
levels, scheduling hours of operation and establishing parking rates for the Parking Facilities;
• (b) employing; terminating and supervising all personnel necessary for the
operation of the Parking Facilities,' including cashiers, maintenance crews. and security
personnel;
13
(c)- procuring and entering into contracts for the furnishing of .all utilities,
equipment, services and supplies necessary for the operation of the Parking Facilities;
(d) performing, or causing to be performed,' all maintenance and repairs in
accordance with Section 5.4;
• (e) .maintaining or causing to be maintained all necessary, licenses, permits
and authorizations for the operation of the Parking Facilities; and
(f) • operating the Parking Facilities in accordance -with Applicable Law, the
Operating Standard attached hereto as Exhibit C (the "Operating Standard") and this Agreement.
5.2 • Revenues. Except as provided in Article VI with respect to Stadium Events, the
City shall have the exclusive right to establish .prices for, and to collect and retain, all parking
fees in the Parking Facilities.
• 5.3 Expenses. Except•as expressly provided in Sections 6.1, 6.3(d) and 6.3(e), the..
City shall be responsible for the payment of all expenses and taxes relating. to .the Parking
Premises and the ownership, use and operation thereof, including expenses and taxes arising
from or related to maintenance, repairs, insurance, utilities, event personnel, security and
cleaning services. •
5.4 Maintenance and Renairs.
•
(a) . The City shall keep the Parking Facilities in good maintenance and repair
in accordance with the Operating Standard.
(b) Subject to Section 5.4(c), if at any time after the Substantial Completion
Date, all or any part of the Parking Facilities shall be damaged or destroyed by a casualty of any
nature (a "Casualty"), the City shall repair, restore, replace and/or rebuild (such work being
- "Casualty Repair Work") the Parking Facilities as nearly as practicable to a condition that is at
least substantially equivalent to that existing immediately before the Casualty, with such changes
and alterations thereto as the City shall request and the Stadium Operator Representative shall.
approve in accordance with substantially the same procedures set forth in Section 4.1 The
Casualty Repair Work shall commence not later than one hundred eighty (180) days after the
Casualty occurs, which time shall be extended (provided. the City is proceeding, with reasonable
diligence) by such reasonable time as is commensurate with any delays due to adjustment of
insurance, preparation of any necessary plans and specifications, bidding of contracts, obtaining
of all required approvals and events of Force Majeure. The Casualty Repair Work shall be
performed in accordance with Applicable Law.
(c) Notwithstanding Section 4.4(1) or 5.4(b), if a Casualty also affects the
Baseball Stadium in a planner that results or may result in a termination of the Construction
Administration Agreement pursuant to Section 8.3(d) thereof or the Operating Agreement
pursuant to Section 11.2(c) or 11.4(a) thereof, the City shall have no obligation to undertake the
Casualty Repair Work if the Construction Administration Agreement or the Operating
Agreement is so terminated, or until the Construction Administration Agreement or Operating
Agreement may no longer be terminated under one of those sections.
14
5.5 Insurance, The City shall obtain and maintain, or shal] cause to be obtained. and
maintained, the insurance coverage for the•periods of time during the Tenn as set forth in Exhibit
D.
5.6. Third Party Manager. In the event MPA declines to operate the. Parking
Facilities, the•City may retain .a third party with experience in the management of large parking.
facilities (a "Parkingg, Manager") to manage the. Parking Facilities. The City shal] provide the
Stadium Operator an opportunity to review and comment upon the Request for Proposal -for. the.
Parking Manager..(which the City and Stadium Operator agree will include a requirement that..the
parties submitting -proposals thereunder shall consider alternative methods of .payment for
..patrons, including payment by .credit card) and:shall provide the Stadium Operator a voting seat
on the evaluation committee that selects the. Parking Manager. The management. agreement
between the City. and,.a Parking Manager shall expressly incorporate and require. -the Parking
Manager to adhere -to the. applicable terns of this Agreement. In• addition,. the management
agreement shall provide that the City•may amend any provisions in the .management agreement,
if necessary, •in order• to maintain the tax-exempt status of any bond issued .by the City- for
financing the construction of theParking Facilities: Pursuant to the management agreement, the -
City shall • cause the Parking Manager to indemnify and agree to defend the Stadium Operator
Indemnitees, the Team Affiliates, the County and each of their respective officers and employees
from and • against any. Loss arising out of the actions or omissions of the Parking Manager, its
employees, -contractors, .agents or .affiliates. .All fees..and other amounts owing to the Parking
Manager shall be paid by the. City. The retention of a Parking Manager shall. not.reliev.e the City
of its obligations under this Agreement, and all references to the "City".inthis Agreement shall
include the Parking.Manager as appropriate.
• ARTICLE VI
USE OF PARKING FACILITIES BY TEAM AFFILIATES
6.J Team Reserved Panting. The Stadium Operator, the Team and their employees
and guests . shall have exclusive use of two hundred -fifty (250) of the -parking: spaces in the
Parking Facilities, at no. cost; on a twenty-four (24) hour per day, year-round basis throughout the
Tenn (the "Team Reserved Parking •Spaces"). The Team Reserved Parking Spaces shall be
located in Parking Garages Pl, P2 and/or P3, as determined by the Stadium Operator in its sole
discretion, provided that the Team Reserved Parking Spaces shall not be located on any Surface
Lots.. The Team Reserved Parking Spaces shall be separately secured and the Stadium Operator
shall be responsible_ for paying all of the City's incremental costs incurred or requested by
Stadium Operator in separately securing the Team Reserved Parking Spaces, such as additional
fencing or security cameras. The Stadium Operator shall remit, or cause to be remitted, to the
City such incremental costs within ten (10) Business Days after receiving a reasonably detailed •
invoice .from the City. The Stadium Operator shall separately provide and pay for any additional
security personnel or other services it.requires for the Team Reserved Parking Spaces.
6.2 Stadium Event Parking.
(a) Subject to the scheduling priorities set forth in Section 5.2 of the
Operating Agreement, (i) the Team Affiliates .and/or Major League Baseball, as applicable, and
15
their respective employees: guests, licensees and patrons, shall have prior and exclusive use of
all of the spaces in the Parking Facilities for all MLB Events, and (ii) the Team Affiliates and/or
the sponsors or proinoters of Other Events, as applicable, and their respective employees, guests,
Iicensees and patrons, shall have prior and exclusive use of as many spaces- in the Parking
Facilities as are projected to be .needed and have been .reserved for such Other Events by the
applicable Team Affiliate, sponsor or.protnoter in accordance with Section 6.2(b) below. All
parking made available for MLB Events .and Other Events hereunder shall be made available.
from two (2) hours prior to through at leasttwo..(2) hours following each such .event.
(b). The Stadium Operator shall notify. the. City or the Parking Manager in
writing of the MLB Reserved Dates for each Operating Year no later than ten (10) Business
Days after the Team's schedule is finalized for that Operating Year. If the Stadium Operator
wishes to reserve the Parking Facility for any other Stadium Event, it shall deliver to the City or.
the Parking .Manager a written notice setting forth the date of such proposed Stadium Event at
least fourteen (14) days before contractually committing to the Proposed Stadium Event. Such
.notice shall be given in good faith and shall identify in reasonable detail the nature of the
Stadium Event, the start time for such Stadium Event, the projected number of parking spaces
and portions of the Parking Facilities that are, projected to be used, any special security or other
staffing arrangements that are anticipated, and any other information reasonably necessary for
the City to perform its duties under this Agreement. The Stadium Operator shall promptly notify
the City or the Parking Manager if the scheduled date or start time of a Stadium Event is
changed; provided, however, no such notice from the Stadium Operator of a re -scheduled date or
start time shall in any event be given to the City or the Parking Manager less than fourteen.(14)
days • prior to. the previously scheduled date of such Stadium .Event. Notwithstanding the
foregoing, the Stadium Operator shall notify the City or the Parking Manager in writing at least
fourteen (14) days prior to a scheduled Stadium Event, of the terms of admission to the Parking
Facilities (i.e., parking fees to be collected for non -prepaid parking spaces). Subject to the
scheduling priorities set forth in Section 5.2 of the Operating Agreement, the City shall reserve
the Parking Facilities for the exclusive uses contemplated under Section 6.2(a), and shall not
permit any other Persons to use the Parking Facilities with respect to MLB Reserved Dates and
other Stadium Events (except to the extent all of the spaces in the Parking Facilities are not
needed for such other Stadium Events) as to which it•or the Parking Manager receives notice
under this Section 6.2(b). •
6.3 Payments for Stadium Event Parking.
(a) In addition to the Stadium Operator's obligation to pay the incremental
costs in separately securing the Team Reserved Parking Spaces under Section 6.1, as the sole
consideration payable by the Stadium Operator, the Other Team Affiliates, Major League
Baseball, Other Event sponsors or promoters, and their employees, guests, licensees and patrons,
for the use of the Parking Facilities pursuant to Sections 6.1 and 6.2 for all Stadium Events (other
than the Incremental Labor Costs of staffing the Parking Facilities for Stadium Events that are
not regular season MLB Horne Games as set forth in Section 6.3(e) below), and the operating
and other obligations performed. by or on behalf of the City under this Agreement, the Stadium
Operator shall pay, or cause to be paid, to the City an amount representing the purchase of the
Available Number of Parking Spaces for each regular season MLB Home Game played at the
Baseball Stadium in each Operating Year at the following price per space:
l6
Years Price
1 —5 $10.03
6-10 $10.10
11-15 $10.20
16 — 20 $10.86
21 — 25 S 11:56
26 — 30 $12.29
3.1 _ ..3.5......... _. $ 12:5:3
•For. purposes ofthe .foregoing, "Available Number of Parking Spaces" means the .number of
parking spaces in the Parking Facilities actually made available to the Stadium Operator for
regular season 1\4LB Home Gaines, after giving effect to Section 4.8. The Available Number of
Parking Spaces shall exclude the Team Reserved Parking Spaces and shall not exceed 5,750.
(b) If in any Operating Year there are fewer than eighty one (81) regular
season MLB Home. Game gal ayed at the Baseball Stadium .due solely to a strike or lockout of
MLB players, and one or more _other Stadium Events aie held .at the Baseball Stadium in such
Operating Year at which customers • pay the Stadium Operator for spaces in the Parking .
Facilities the Stadium Operator shall pay to the. City the revenues 'it receives. from those
customers in an amount not to exceed the per space amounts set forth in Section 6.3(a) until the
City has received the amount it would• otherwise have received under Section 6.3.(a) with respect
to the cancelled MLB Home Ganes. Such amounts shall not•include the taxes or surcharges,
which the Stadium Operator is obligated to remit to the applicable taxing- authoiities under
Section 6.3(d) below and other direct expenses, and the Incremental Labor Cost payable to the
City under Sectionr6.3(e):
(c) The_ amounts due to the City under Sections 6.3(a) and (b) with respect to _ .
each Operating Year•shall be payable semi-annually on orbefore May 31 of such Operating Year
and November 30 following such Operating Year. Such amounts shall be payable without taxes
or surcharges, provided that this shall not limit the Stadium Operator's obligation to remit. taxes.
and surcharges to the applicable taxing .authorities under Section 6.3(d) below.. The prices in
Section 6.3(a) assuine that the City is required to maintain a one (1) year debt service reserve for
the contemplated Parking Facility bond financing and that the City 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 to satisfy this requirement, the prices in Section 6.3(a) shall be increased by the net
incremental cost of maintaining such cash reserve on a S44,000,000 portion of such Parking
Facility 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 any such
incremental costs, including by maximizing the earnings on the reserves, provided that' such
earnings may not exceed the interest rate on 'the Parking Facility bonds. .
(d) The Teain Affiliates or their designees shall determine the prices and other
terms upon which the Parking Facilities will be made available to patrons for Stadium Events
(including regular season and post -season MLB Home Games and MLB Jewel Events) in their
sole discretion, and shall receive and retain all revenues derived therefrom. Such teens may
include higher or lower parking prices than those set forth in Section 6.3(a). above, and the
17
provision_ of free, discounted or prepaid parking passes for Stadium Events. The City shall honor
such parking passes without payment by the patrons. The City shall collect all parking revenues
payable at the Parking Facilities for Stadium Events as agent for the Stadium Operator in cash.
Except as provided in Section 6.3(g) below, all cash collections shall be deposited by the City on
the date of the Stadium Event or the next Business Day directly into an account designated by
the Stadium Operator. The StadiUM Operator shall be responsible for all generally applicable
taxes and surcharges payable from all sales from which the Stadium Operator or the.Team.or any
Team Affiliate is paid the revenues. The amount of such taxes and surcharges shall be calculated .
and paid by the Stadium Operator in accordance with generally Applicable.Law..In connection
therewith, the Parties agree that the parking surcharge to be remitted by the Stadium Operator for.
free, discounted or prepaid parking passes for regular season MLB Home Games shall be
calculated on an amount not less than the amount set forth in Section 6.3(a) above. Except as
provided herein, the City acknowledges that neither it .nor the Parking Manager. shall have any
right or interest in any parking revenue generated from Stadium Events or in any account or
funds held therein relating to such revenue.
• (e) The Stadium Operator shall pay the .Incremental Labor Costs of staffing
the applicable Parking. Facilities for Stadium. Events that are 'not regular season MLB I -Tome
Games. The .City and the Stadium Operator shall agree upon such staffing levels as set forth in
Section 6.4. The Stadium Operator shall remit, or cause to be remitted, to the City the
Incremental Labor Costs with respect to all such Stadium Events (that are not regular .season
MLB Home :Games) occun-ing during any calendar month within ten (1 0) Business Days after
receiving a reasonably detailed invoice following the end. of such month. Except as_ provided in
this Section 6.3, none of the Team Affiliates or Major League Baseball shall be required to pay
for their use. of the Parking Facilities for Stadium Events.
(I) The City • shall maintain accurate. and complete books and records,
compiled in a consistent manner, so as to permit an audit by the Stadium Operator of the parking
revenues relating to Stadium Events. The City shall retain such records for no less than three (3)
years. All such books and records shall be made available to the .Stadium Operator within
twenty (20) days of the . City's receiving written request from the .Stadium Operator, for
inspection; copying and audit,• The City shall implement appropriate entrance and exit controls
to calculate and compile entrance and exit data with respect to ,the number of vehicles entering
and exiting the Parking Facilities for Stadium Events.. The City shall submit to the Stadium
Operator a preliminary report of such entrance. and exit .data and parking revenues within
twenty-four (24) hours, and a final report within two (2) business clays, after each Stadium Event.
The Stadium Operator agrees that it shall be subject to and bound by the provisions of Chapter
35, Article IX of the City of Miami Code and other Applicable Law relating to the City's audit
rights.
(g) Notwithstanding anything contained herein, the City shall have the
exclusive right to establish prices for, and to collect and retain, all parking fees for apy and all
parking spaces that are not reserved.by a Team Affiliate for Stadium Events pursuant to Section
6.2.
6.4 Staffing. With respect to Stadium Events, the City shall employ, • at its .cost
(except as provided in Section 6.3(e)), sufficient, qualified and well -trained (a) cashiers and .other
18
personnel to allow for the shortest practicable entry and empty times; and (b) other personnel
consistent with the Operating Standard. The City and the Stadium Operator shall agree. -upon the
staffing levels for.traffic control and security personnel prior to any Stadium Event. If the parties
are unable to agree.despite their good faith efforts to do so, then the City shall decide the. final.
staffing levels for any regular season MLB Iloine Game and the Stadiunn Operator shall decide
the --final staffing levels•for all othei Stadium Events, in each case consistent with the Operating
Standard, The City. shall use reasonable efforts to Cause Parking Facility personnel to perform
their duties in a courteous, professional and timely Manner. All Parking Facility persoi nel.shall
be deemed employees or agents of the City or the Parking Manager and shall not for anypurpose
be considered employees or agents of the StadiumOperator or other Team Affiliates.
6.5 Soccer Stadium: Other Development.. The City shall not provide orpermit use of
the Parking Facilities by any owner or operator bf a soccer team or soccer stadium .(or.its
employees,' licensees, guests or patrons) at lower prices than those set forth in Section 6.3(a) or
on otherwise more favorable terms than those set forth in this Agreement, without the prior
written. consent_ of the Stadium Operator; provided, however, that the City. may impose on`the.:
soccer team or soccer •stadium a minim -Um space purchase requirement of less than 5,750 to;
reflect a relatively smaller size and projected attendance at the soccer •stadium. The City shall
not permit the use of Other Development that in any material respect •interferes with the
operation of the Parking Facilities for-MLB Events, or Other Events expected to have attendance
. of at least 5,000 people.
6.6 Advertising Rights; Concessions and Promotional Rights.
•
(a) The Team Affiliates shall have•the exclusive right to sell and enter into
agreements with respect to all Signage and advertising rights with respect to the Parking
Premises, on such terns and conditions as•the Team Affiliates shall determine. The Stadium
Operator shall pay to the City 50% of all stet revenues (i.e_; revenues less fulfillment costs and
sales commissions, but .excluding salary and benefits paid to the Team Affiliates' officers),
directors and employees) derived from such sales. • Such payments shall be made together with
the payments by the Stadium Operator under Section 6.3(a). If any such sale is for non -monetary
consideration, •the revenue from that sale shall be determined based on the •fair market value of ,
such consideration. The revenue •attributable to the Signage for purposes of this Section 6.6(a).
shall be based on the rate card for such Signage as approved by the City Representative. the
City Representative has not approved of a rate card for such Signage, the Stadium Operator shall
not sell such Signage without the City Representative's prior consent, which shall' not be
unreasonably conditioned, withheld or. delayed.
• (b) The Stadium Operator shall maintain accurate and complete books and
records, compiled in •a consistent manner, of the net revenues payable to the City under Section
6:6(a). The Stadium Operator, shall retain such records for no less than three (3) years. All such
books and records shall be made available to the City Representative within twenty (20) days of
the Stadium Operator's receiving written request from the City Representative, for inspection,
copying and audit,
(c) The Stadium Operator shall be responsible for installing al] Signage on the
Parking Premises resulting from sales under Section 6.6(a). The City shall permit the display of
19
all such Signage or other advertising sold by the Team Affiliates. Except as provided in Sections
6.6(d) below, the City shall not sell, authorize or permit any Signage or advertising in the
Parking Premises. Notwithstanding anything to the contrary in this Agreement, no Signage shall
promote tobacco, adult entertainment or guns.
(d) The provisions of Section 6.6(a) shall not apply to reasonable and
customary Signage placed in the -Parking Facilities by retail tenants in the Other Development
with respect to themselves.. Notwithstanding the foregoing, no such Signage may relate :.to a
business conducted by, or otherwise conflict _with; any Major Sponsor; provided, however, that
no retail tenant in the Other Development that competes with a new Major Sponsor (i.e., a Major
Sponsor that enters into an agreement with a Team Affiliate or the 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; provided,
further, that no such, agreement shall be.renewable if it conflicts with a Major Sponsor at the time,
Of such renewal.
(e) Ambush .Advertising shall be prohibited at the Parking Premises during
(and within two hours before and after) MLB Events, and Other Events expecting to have,.an
• attendance of at least 5,000 people. "Ambush Advertising" means any promotions, contests or
other sponsorship activation activities. directed at undercutting the value or impact of a
competitor's advertising signage or sponsorship at the Stadium Premises or the Soccer Stadium
(as defined in the Operating Agreement).
(f) - Nothing in this Agreement shall limit the Team Affiliates' exclusive..
ownership of, and rights to exercise and exploit, the Promotional Rights as set forth in the
Operating Agreement. Such exclusive exercise and exploitation shall extend to the .Parking
Premises with respect to Stadiiut Events, and- the City shall not exercise or exploit, or authorize.
or permit the exercise or exploitation of, any such rights (e.g., the City shall not permit MLB
I -tome Games to be broadcast from the Parking Premises).
(g) . The following uses shall not be permitted within the Parking Premises,
unless the Stadium Operator otherwise provides its prior written consent: ,(i) ticket brokerage
businesses (other. than brokerage services provided by a Team Affiliate 'for Major League,
Baseball 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 at
the Parking Premises, (iii) QSRs (as defined in the -Operating Agreement), (iv) portable or
temporary food, or the give-away of .food or beverage, during the period from three (3) hours
before and one (l) hour after MLB Home- Games, or other Stadium 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 MLB Home Games, or other Stadium Events expected to have attendance of at
least 5,000 people, and (vi) the promotion and sale of baseball branded or themed memorabilia
• and merchandise by persons other than a Team Affiliate. The City shall not permit the.use of the
Parking Premises that in any material respect interferes with the operation of the Baseball
Stadium for MLB IIome Games, or other Stadium Events expected to have attendance of at least
5,000 people.
20
ARTICLE VII
[Omitted]
ARTICLE VIII
DEFAULTS AND REMEDIES •
8.1. Stadium .O.nerator.D.efault...Each ofthe following shall constitutea default .by the
Stadium Operator hereunder(a "Stadium •Operator Default"):
(a)• If•the Stadium Operator fails to payor remit any amount payable by -the
Stadium Operator under this Agreement and fails to cure the same within twenty (20). days after
written notice thereof to the. Stadium Operator from the City.
(b) • •If the• Stadium Operator .shall • breach any of the other covenants dr
provisions in this Agreement and such failure is not cured within forty (40) days after written
notice thereof is given to the Stadium. Operator by -the City; provided, however; that if it is not
..reasonably possible to cure such breach within such forty•(40)=day period, such cure period. shall.
•
• be extended .for up to one hundred eighty (180)- days following the giving of the original notice if
within forty (40) days after such written notice the Stadium Operator commences and thereafter
diligently pursues the cure.
8.2 Government Party Default.
8.2.1. Each of the following shall constitute a default by the City hereunder (a
"City Default")`:
(a) If the. City fails to pay or remit any amount payable by it under this.
Agreement and fails to cure the same within twenty (20) days after written notice thereof to the
City.
(b) If the City shall breach any of the other covenants or provisions in
this. Agreement and such. failure is,not cured within forty (40) days after written notice thereof is
given to the City; provided, however, that if it is not reasonably possible to cure such breach
within such forty. (40)-day period, such cure period shall be extended for up to .one hundred
eighty (180) days.following the giving of the original notice if within forty (40) days after such
written notice the City commences and thereafter diligently pursues the cure.
8.2.2 Each of the following shall constitute a default by the County hereunder (a
"County Default"):
(a) If the County fails •to pay or remit any amount payable by it under
this Agreement and fails to cure the sane within twenty (20) days after written notice thereof to
the County.
(b) If the County shall breach any of the other covenants or provisions
in this Agreement and such failure is not cured within forty (40) days after written notice thereof
is given to the County; provided, however, that if it is not reasonably possible to cure such
breach • within such forty (40)-day period; such -Cure period shall be extended for up to one
21
hundred eighty (180) days following the giving of the original notice if within forty (40) days
/1 after such written notice the County commences and thereafter diligently pursues the cure.
8.3 • Remedies.
(a) . Subject to complying with Article X with respect to matters that must be
resolved by arbitration or Expedited ADR, as applicable, the Government Parties may institute
litigation to recover damages or to obtain any•other remedy at law or in equity (including specific
•performance, .permanent, preliminary or temporary injunctive relief, and' any. other kind of
equitable remedy) for any Stadium Operator Default.
(b) Subject to complying with Article X with respect to matters that must be
resolved by arbitration or Expedited ADR, as applicable, the Stadium Operator may institute
litigation to recover damages or to obtain any other remedy at law or in equity (including specific
performance, permanent,' preliminary or temporary. injunctive relief, and any other kind of
equitable remedy) for any City Default or County Default.
(c) 'Except with respect - to rights and remedies expressly declared to be
exclusive in this Agreement or the other Stadium Agreements, the rights and remedies of the
Parties are cumulative and the exercise by any Party of one or more of such rights or remedies
shall not preclude the exercise by it, at the same or different times, of any other rights or
remedies for .the same Default or any other Default.
• (d) Any failure of a Party to exercise any right or reined)/ as provided in•this
Agreement. shall not be deemed a waiver by that Party of any claim for damages it may have by
reason of the Default.
(e) Notwithstanding anything to the contrary in this Agreement, the County
may only provide a notice of default and exercise remedies with respect to a breach by another
Party of a County Provision.
Notwithstanding anything to the contrary in this Agreement or the other Stadium Agreements, so
long as the continues to perform its obligations Linder the Interlocal Agreement between
the County and the City, relating to•the disposition of Convention Development Tax receipts. for
the Ballpark project (the "CDT Interlocal") even while in default under this Agreement, any
recovery of damages by the City against the County under this Agreement shall be offset by any •
amounts the County is obligated to remit to the City pursuant to the CDT Interlocal.
Alternatively, if the City elects to recover and is awarded damages against the County which
include the amount the County is obligated to remit to the City pursuant to the CDT Interlocal,
the Country shall be relieved of its funding obligations under the CDT Interlocal as of the
juiclgnient date. Such proceeds from the recovery of damages shall be used for the repayment of
any outstanding Parking Facility bonds issued to fund the Parking Facilities.
8.4 Self=IIelp Remedies.
(a) If a court of competent jurisdiction or the arbitrators or the Neutral
pursuant to Article X has determined pursuant to a final judgment or award that a Stadium
Operator Default has occurred and such Stadium' Operator Default is continuing, in addition to
22
any other remedy available to the Government Parties .under. this Agreement, the Government
Parties shall have the right, but not the obligation, to render the performance required to cure the
Stadium Operator Default.
• (b) If a court of competent • jurisdiction or the arbitrators or the Neutral
pursuant to Article X has determined pursuant'to a final judgment or award that a City:Default or
County Default has occurred and such Default is continuing, in addition•.to any other remedy
available. to the Stadium Operator under this Agreement,. the Stadium Operator shal] have the.
• right; but not the obligation, to render the performance required to cure such Default.
8.5 Termination. Notwithstanding any other provision in this. Agreement to the
•contrary, this Agreement may not be terminated by any.Party (upon a Default or otherwise), and
each Party waives any right to terminate it may have at.law or in equity, except .(a) as provided in .
Sections.3.3, and (b) this..A -eement .shall automatically terminate upon .a termination of the
Construction Administration Agreement in. accordance with its terms and with the consequences
set forth therein, Notwithstanding the -foregoing, if this Agreement terminates. as a result of ;a
•tennination of the, Operating Agreement:pursuant to .Section.17.5.2(c) thereof; -.then. the City steal]
have the.right to institute litigation to recover•damages •or to obtain any other remedy at law or in
• equity (including specific performance, permanent, preliminary or temporary injunctive- relief)
and any other kind of equitable remedy) as if such termination would constitute a Stadium
Operator Default. Further, if the Construction Administration Agreement.is terminated pursuant
to Section 11.1.4 of the Construction Administration Agreement, then each of the Parties who
are not in Default under the Construction Administration Agreement shall have the .right to
institutelitigation against the Defaulting Party to recover' damages arising under this Agreement
or to obtain any other •remedy available at law or in equity (including specific performance,
permanent,. preliminary or temporary injunctive relief, and any other kind of equitable remedy)
• relating to the Parking Facilities. •
. 8.6 Exclusive Remedies. The rights and remedies conferred upon or reserved to the
Parties in this Article VIII are intended to be the exclusive remedies available to each of them
upon • a• breach dr defau]t by the other Parties, except as may be otherwise expressly set forth in.
this Agreement or in any of the other Stadium Agreements.
ARTICLE IX
- INDEMNIFICATION
9.1 Indemnification by Stadium Operator.
• (a) Except as otherwise provided in 'this Agreement or the other Stadium
Agreements, the Stadium Operator shall indemnify, defend and hold harmless the City and the
County and their respective officers, employees, attorneys, agents and instrumentalities
(collectively, "Government Indemnitees") from and against any and all losses, liabilities,
.damages, suits; claims, judgments and expenses (including reasonable attorneys' fees)
(collectively, "Losses") incurred by a Government Indemnitee and caused by any of the
following occurring during the Term:
23
(c) Notwithstanding the provisions ofSections 9.2(a) and (b),.the Govennnent •
Parties shall not be required to indemnify for any Losses arising from or in connection with:
(i) any injury to or death- of a Person or any damage to property
(including loss of use) to the extent caused by. the negligence or -willful act of the .Stadium
Operator•or•any ofits Affiliates.or its representatives or contractors;
(ii) :any:violation by..•the Stadium Operator or its Affiliate of .any
provisions of this Agreement, any other. Stadium Agreement or. any generally •Apple cable Law;.
(iii) any other matter for which the Stadium Operator or its Affiliate is
obligated to provide indemnification under this 'Agreement or any.otlier Stadium Agreement; or
.(iv) any Loss arising from or relating to a Force.Majeure.
9.3 Indemnification Procedures.
(a) If any Person entitled to -indemnification pursuant to this Article IX (an •
•"Indemnified Party") shall discover or have actual notice of facts that have given•rise, or which
may give rise to, a claim for indemnification under this Article IX, or shall receive notice of any
.action or proceeding of any matter for which indemnification may be claimed (each, a "Claim"),
the Indemnified Party shall; within twenty (20) days following service ofprocess or other written
. notification bf.such claim (or Within such shorter time as may be ,necessary to give the Person
•
obligated to indemnify the lndeinnified Party (the "Indemnitor") a reasonable opportunity .to
• respond to such service process or notice of .claim), and within twenty .(20) days after any other
such notice, notify the Indemnitor in writing thereof together with a statement. of such
information respecting such matter as the Indemnified Party then has; provided, however, the
failure to notify the Indemnitor shall not relieve the Indemnitor from any- liability which it may
have to the Indemnified Party except and solely to the extent that such failure or delay in
notification shall have adversely affected the 'Indemnitor's ability to defend against, settle or•
satisfy any such Claim. .•
(b) The Indemnitor shall be entitled, at its cost and expense, to contest or
defend any such Claim by all appropriate legal proceedings through attorneys of its own
choosing, provided the Indemnitor'shall have first notified the indemnified Party of its intention
to do so within twenty•(20) days -after its receipt of such notice from the Indemnified Party. If •
within twenty (20) days •following such. notice from the Indemnified Party, the Indemnified Party
has not received notice from the Indemnitor that such claim will be contested or defended by the
Indemnitor, the Indemnified Party shall have the right to (i) authorize attorneys satisfactory to it
to represent it in connection•therewith and/or (ii) subject to the approval of the Indemnitor, which ..
approval shall not be unreasonably withheld or. delayed, at any time settle, compromise or pay
such Claim, in either of which events the indemnified Party shall be entitled to indemnification
thereof as provided in this Article I:X. These provisions in no way prevent the Indemnified Party
from taking whatever actions are necessary to defend the Claim during the time before the
Indemnified Party learns whether the Indemnitor .will contest or defend the Claim. Attorneys'
.fees and costs accrued by the Indemnified Party during•this time are indemnifiable. If required
by the Indemnitor, the Indemnified Party shall cooperate fully with the Indemnitor and its
25
attorneys in contesting or defending any such Claim or, if appropriate,. in making .any
counterclaim or cross complaint against the Person asserting the Claim against the Indemnified
Party, but the Indemnitor will reimburse the Indemnified Party for any expenses reasonably
incurred by the Indemnified Party in so cooperating.
(c)' The Indemnitor shall pay -to the -Indemnified Party:in cash all amounts to
which the Indemnified Party may become entitled by reason of the provisions of. this Article IX,
such payment to be made within thirty (30).days after such amounts are finally determined either
by mutual .agi•eement.or by judgment of fi court of.competent jurisdiction. Notwithstanding that
the Indemnitor is actively conducting a defense or contest of any Claire against an •Indemnified,
Party, such Claim may be settled, compromised or•paid by the Indemnified Party without the
consent of the Indemnitor; provided however that if such action is taken without -the Indemnitor's
consent, its indemnification obligations with respect thereto shall be terminated and the
Indemnitor shall have no obligation to the Indemnified Party. The Indemnitor shall. have -the
right to settle, compromise or pay any Claim being defended by the Indemnitor without the
Indemnified Parry's consent solong as such • settlement or compromise does not cause the
Indemnified Party to incur any present or future material costs, expense, obligation or•lability of .
any kind of nature, or require any admission or action or forbearance from action 'by the.•
Indemnified Party that would have a material adverse effect on the Indemnified Party.
(d) In the event any Claim involves matters partly within or partly outside the
scope of the indemnification by an hndernnitor herebnder, then the attorneys' fees, costs and
expenses of contesting or defending such Claim shall be •equitably allocated between • the
Indemnified Party and:the Indemnitor. If 8 conflict of interest. exists between • the Indemnified
Party and the Indemnitor with respect to any Claim, the Indemnified Party shall have.the right to
participate.in the defense of such Claim with separate counsel chosen by the. Indemnified Party,
subject to the reasonable approval of the Indemnitor, and paid by the Indminified Party.
9.4 Survival. The obligations contained in this Article IX will survive the expiration
or earlier termination of this Agreement but only with respect to an event that may give rise to a
Claim that in turn gives rise to a right of indemnification under this Article IX and which such
event occurs prior to such expiration or termination.
ARTICLE X
ARBITRATION
10.1 Arbitration. Subject to Section 10.2; any dispute or controversy among the
Parties or their Affiliates arising under or with respect to this Agreement shall be resolved
exclusively by final and binding arbitration in the City of Miami before a panel off, three
independent arbitrators under the auspices and pursuant to the rules of the American Arbitration
Association ("AAA"). Unless otherwise provided. in this Agreement, the arbitration hearing
will be scheduled so that it is completed within sixty (60) days from the date of the furling of the
arbitration and a written award is rendered within forty-five (45) days from the date of such
completion. Arbitrators will be chosen from the AAA Large and Complex Case Panel of
Arbitrators except that none of the arbitrators shall have performed, directly or indirectly, a
material amount of work for the County, the City or a Team Affiliate within the five (5)-year
26
prod >mrinediate]ypreceding.the date of their selection or intend or desire to perform Work for
the County, the City or a Team Affiliate within one (1) year following the date of their selection.
Issues determined by arbitration pursuant to this Section 10.1 shall be given preclusive or
collateral estoppel effect: The decision rendered by the arbitrators shall be final and conclusive
• :and binding upon .the Pal -ties. Judgment may be entered on the arbitrators' award .in any court
having jurisdiction. Each 'Party shall bear its own attorneys' fees and costs relating to the
• arbitration, but the costs and .fees of the panel and the AAA shall be bonne equally by. the Par 'i es
to the arbitration,
10.2 . Expedited ADR.
. (a) Disputes -•or deadlocks among any of the Parties arising under or with
respect to Article IV (each, an "Expedited ADR Dispute"), shall be submitted to expedited
alternative dispute resolution :("Expedited ADR") under this Section 10.1 The Patties .have
mutually agreed to establish .a panel ("Panel") of at least three (3) or more arbitrators (with the
lead Pane] member to be •reached by mutual agreement)..qualified to - resolve design. and
construction -related contract disputes to be available to. resolve Expedited ADR'Disputes. The
Parties shall exchange proposed Panel compositions within ten (10) days following the effective
date of this Agreement airs -agree on the Panel (and the lead Panelist) _within thirty (30) days •
following the effective date of this Agreement. •The arbitrator selected from the approved Panel
to resolve each Expedited .ADR Dispute shall be designated as the Person (the "Neutral") to •
whom Expedited ADR Disputes are to be submitted for= resolution under- this Section 14.2.
(b) • The Neutral shall not have the power- or authority to award any damages
or require any payments. other than those •described in the last paragraph of this Section 10.2.
There. shall be no discovery permitted with respect. to any Expedited .ADR other than that
required by the Neutral and each of the Parties who is party to such Expedited ADR shall present
its position with respect to the issue(s) to 'be determined by such Expedited ADR by an oral
.presentation to the Neutral. Each •of the Parties who is party to such Expedited ADR shall be
given the opportunity to hear and orally respond to the others' presentations to the Neutral, and
to present documents to the Neutral iri support of such Party's position. The Neutral shall have
the right to limit the documents presented to the Neutral to assure a prompt resolution of the
issue(s) to be determined by the Neutral. The Parties who are party to such Expedited ADR may
have their respective counsels present at such Expedited ADR, but there shall be no examination
Or cross-examination of witnesses other than as required or permitted by the Neutral.
(c) The Parties shall use Expedited ADR. exclusively, rather than litigation or
arbitration, as a means of resolving al] Expedited ADR Disputes. The Expedited ADR will be
scheduled so that it is 'completed and a decision is rendered within twenty (20)• days from the
date of the filing ofthe Expedited ADR Dispute, and, if requested by the Parties,,.a written award
is rendered within twenty (20) days of such completion. The .writtenaward by the•Neutra] shall
be the binding, final determination on the merits of the Expedited ADR Dispute, and shall
preclude any subsequent litigation or arbitration on such merits. The Parties agree that any
disputes that arise out of such a written award shall be resolved exclusively by Expedited ADR
pursuant to this Section 10.2, provided that the Parties may institute legal proceedings in a court
of competent jurisdiction to enforce judgment upon an Expedited ADR award in accordance with
generally Applicable Law. Each Party shall bear its own attorneys' fees and costs relating to the
27
Expedited ADR, but the costs and fees of the Neutral shall be borne equally by the Parties to the
Expedited ADR.
10.3 No Indirect Damages. In no event .shall, any party be liable under any provision
of this Agreement for any special,. indirect, . incidental, consequential, exemplary, treble or
punitive_ damages, in contract, tort or otherwise, whether or not provided by statute and :.
whether or not caused by or resulting from the sole orconcurrent negligence or intentional acts -
.of such party or any of its affiliates or related parties. Notwithstanding the foregoing, this
limitation of liability shall not apply to any indemnification for third -party claims available at
law or pursuant to, and subject to the limitations in,.Article IX. The preceding limitation shall
not be a basis for any claim or arguinent.that a dispute should not be arbitrated..
ARTICLE XI .
MISCELLANEOUS
11.1 Notices. Any notice, consent or other communication under this Agreement shall
be in writing and shall be considered given when delivered in person -or sent by facsimile or
electronic mail (provided that any notice sent by facsimile or electronic mail -shall
simultaneously be sent personal delivery, overnight courier or certified mail as provided herein),
one (1) Business Day after.being sent by reputable overnight carrier, or three (3) Business Days
after being trailed by certified mail, return receipt requested, to the Parties at -the addresses set
forth below • (or at such other. address as a Party may specify by notice given pursuant to this
Section•to the other Parties):
If to the County:
To the attention of:
With.a copy to:
If to •the City:
To the attention of:
County Manager
111 NW.1 s' Street, Suite 2900
Miami, Florida 33128
Attn: George M. Burgess
County Attorney
111 NW 1" Street, Suite 2810
Miami, Florida 33128
Attn: Robert A. Cuevas, Jr,
and Geri Keenan
City Manager
444 SW 2" `' Avenue, 10(I Floor
Miami, Florida 33130
Attn: Pedro G. Hernandez
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With. a copy to:
• If to the Stadium Operator: -
To the attention of:
With a copy to:
City Attorney
444 SW 211d Avenue, 9`1' Floor
Miami, Florida 33130
Attn: Julie O. Bill
and Olga Ramirez-Seijas
'2267 Dan Marino Boulevard
Miami, Florida 33056
Attn: David Samson
. and Derek Jackson
Proskauer Rose LLP
1585 Broadway
New York, New York 10036.
Attn: Wayne Katz
Notwithstanding the foregoing, periodic and ordinary course. notices, deliveries - .and
communications between the Stadium Operator and the Government Representatives ,may be
given (and shall be considered given when provided) by any of the means set forth above, .and to
the address provided by thei Government Representatives to' the Stadium Operator from time to .
time.
11.2 Merger Clause. This Agreement, including the schedules and • exhibits to this
Agreement, and the other Stadium Agreements contain the sole and entire agreement .among the
Parties and their Affiliates with respect to their subject matter, are fully integrated, and supersede •
all .prior written. or oral agreements among them relating to that subject matter, including the
BSA. Except as specifically set forth in this Agreement and the other Stadium Agreements;•
there shall he no warranties, representations or other agreements among .the Parties or ..their.. ":
Affiliates in. connection with the subject matter hereof or thereof.
11.3 Arimendment. This Agreement may not be amended or modified except in -a
writing signed by the Parties affected by the amendment or modification, or except as otherwise
provided in this Agreement.
11.4 Binding Effect. This Agreement shall be binding .upon the Parties and their
respective successors and assigns, subject to the limitations on Transfer stated herein.
11.5 -Waiver. Waiver by any Party of any breach of any provision of this Agreement
shall not be considered as or constitute a continuing waiver or a waiver of any other breach of the
same or any other provision of this Agreement. Any waiver must be in writing and signed by all
Parties whose interests are being waived.
11.6 Nonrecourse Liability . of Stadium Operator Personnel. Notwithstanding and
prevailing over any contrary provision or implication in this Agreement and. except for their
29
criminal acts with. respect to this Agreement. (i.e., acts which would constitute crimes were they
prosecuted for and convicted of such acts), the officers, directors, partners, shareholders,
members, employees and agents ofthe •Stadium Operator, the Team and the Team Affiliates (the
"Stadium Operator Personnel") shall not in any way be liable under or with respect to this
Agreement; no deficiency or other. monetary or personal judgment ofany kind shall be sought or
entered against any of the Stadium "Operator Personnel with respect to liability under or with
respect to this Agreement; no judgment with respect to liability under or with respect to this
Agreement shall give -rise to any right of • execution or levy against the assets of. any of the
Stadium Operator Personnel; and the liability of the Stadium Operator under this Agreement.
shall be limited to the assets of the Stadium Operator.
11.7 Non -Recourse Liability of City Personnel. Notwithstanding and prevailing over
any contrary provision or implication in this Agreement and except for their criminal acts with
respect to this Agreement (i.e., acts which would constitute crimes were they prosecuted for and •
convicted of such acts), no member, elected or appointed official, officer, employee or agent of
the City (the "City Personnel"). shall not in any way be liable under or with respect to this
Agreement to the Stadium. Operator, or any successor in interest to the Stadium Operator; no .
deficiency or other monetary or personal judgment of any kind shall be sought or entered against
any of the City Personnel with respect to liability under or with respect to this Agreement; and
no judgment with respect to liability under or with respect to this Agreement shall give rise to
any right of execution or levy against the assets of any of the City Personnel.
11.8 Non -Recourse Liability of County Personnel. Notwithstanding and prevailing
over any contrary provision :or implication. in this Agreement and except for their .criminal acts
with respect to this Agreement (i.e., acts which would constitute crimes were they prosecuted_ for
and convicted of such acts), no member, elected or appointed official, officer,. employee or agent
of the County (the "County Personnel") shall not in any way be liable under or with respect to
this Agreement to the Stadium Operator, or any successor in interest to the Stadium Operator; no
deficiency or other monetary or personal judgment of any kind shall be sought or entered against
any of the County Personnel with respect to liability under or -with respect to this Agreement; and
no judgment with respect to liability under or with respect to this Agreement shall give rise to
any right of execution or levy against the assets of any of the County Personnel,
11.9 • Assignment,
(a) The Stadium Operator shall not sell, assign, convey, transfer, pledge or
otherwise dispose of voluntarily or involuntarily (each, a "Transfer") this Agreement or any of
its rights under this Agreement without the prior written consent of the City; provided, however,
that the Stadium Operator rnay, without the prior written consent of the City or any other
Governmental Authority:
(i) Transfer all of its rights hereunder to any Person (or Affiliate of
any Person) that acquires directly or indirectly.the controlling interest in the Team or the Major
League Baseball franchise owned by the Team with the approval of Major League Baseball,
provided that (A) such transferee executes and delivers to the City its agreement, in forth and
substance reasonably satisfactory to the City, to assume all of the obligations of the Stadium
Operator under this Agreement and to keep and perform all provisions of. this Agreement, and
30
(B) such transferee or its Affiliates assume all of the other obligations of the Stadium Operator
and its Affiliates under the other Stadium Agreements;
(ii) • Transfer•any of all of its rights hereunder to the Team and/or one
or more Team Affiliates; and
`(iii) pledge or collaterally assign any or all of its rights hereunder to
any provider, guarantor or insurer of financing to the Stadium Operator or its .Affiliates, provided •
that such pledge or collateral -assignment shall not relieve the.Stadium Operator.of its obligations
under this Agreement, The provisions of Section 14.8 of the Operating Agreement shallapply to
this Agreement as if contained herein.
(b) • The Stadium .Operator shall be relieved of its obligations under .this.
Agreement from and after the date of a Transferpursuantto Section 1•1.9(a)(i) or:(ii) above:
(c) . Other than a Transfer of the City's rights and obligations regarding the
operation .of the Parking Facilities to .MPA, the -City and the County shall .not Transfer this..
Agreement or any .of their rights. hereunder, and the City shall not Transfer its ownership of the
Parking Premises, without the prior written consent of the Stadium Operator.
• (d) Any Transfer or.attempted Transfer by a Party in violation of .this. Section
11.9.shallbe void.
1 1.10 Consent of Parties.
• Whenever in this Agreement the consent or approval .of any Party is required, such
•consent or approval: (i) shall not be unreasonably or arbitrarily withheld, conditioned or..delayed
unless specifically provided to the .contrary in this •Agreement;:(ii) shall not be•effective unless it
is in writing; and (iii) shall apply only to the specific act or .transaction so. approved or consented
to and shall not relive the other- Parties of the obligation of obtaining the consenting Party's prior
written consent or approval to any future similar. act or transaction. Notwithstanding anything
contained in this Agreement,. in :the event• a consent or .approval is required, by generally
Applicable Law; to be granted by the Commission or Board, then such consent or approval. shall
be subject to the Commission's or Board's standard process of review.
11.11 Party Representatives.
(a) The County Manager or his designee (the "County Representative") shall
act as liaison and contact person between the Stadium Operator and the County in administering
and implementing the terms of this Agreement.. The• City Manager or his designee (the "City
Representative" and, together with the County Representative, the "Government
Representatives") shall act as liaison and contact person between the Stadium Operator and the
City in administering and implementing the tens of this Agreement. The County Manager and
City manager shall notify the other Parties in uniting if they designate (or re -designate) another
individual to serve as County Representative or City Representative, respectively. Each of the
County Representative and the City Representative shall have the power, authority and right, on
behalf of the County and City, respectively, and without any further resolution or action of the
Board or Commission, to:
31
• (i) review, approve and consent, in writing, to documents and requests
required or allowed by the .Stadium Operator to be submitted to the Government
Representative(s) pursuant to this Agreement;
(ii) consent to_ and approve, in writing, actions, events and
undertakings by the Stadium Operator or other Persons for which consent• and/or, approval is
required. from -the Goveinment Representatives(s);
(iii) - Make appointments, in writing, of individuals or entities .required
to be appointed: or designated by. the Government Representative(s) in this Agreement;
(iv) sign any and all documents on behalf of the County and/or City, as
the case may be, necessary or convenient to the foregoing approvals, consents and appointments;
.and
(v) grant written time extensions that extend deadlines or time periods
up to 1.80 days, and that do not otherwise materially affect the rights or obligations of the
County or City; as the case may:.be, under this Agreement.
However, nothing contained _herein shall preclude the County Representative and the City
• Representative from seeking Board and/or Cormnission approval for the delegated authority
contained in 1 1.11(a)(i)-(v). In addition, and .notwithstanding any of the foregoing, the
Government Representatives shall be required to seek Board and/or Commission approval, as
applicable, for any•approvals; consents, actions, events or undertakings by any Party or any other
third parties that would violate, alter, or ignore the substantive provisions of this Agreement, or
that would create a financial 'obligation, cost, or expense to the County and/or the City that is
greater thani -the delegated procurement authority of -the. County Mayor or City Manager, as set
forth in the applicable County and City Charters,. County and City Codes,. and any related
administrative or implementing' orders. Any consent, approval, decision, determination or
extension under this Agreement by the County Representative or the City Representative .shall be
binding on the County and the City, respectively. Notwithstanding and prevailing over anything
to the contrary in this Section and this Agreement, the parties agree that the Boarcl .may at any
time rescind any or all delegations of authority to the County Representative. In such instances,
the approval, consent or action sought shall be subject to approval by the Board and, if a time
frame for the County Representative's approval, consent or action is set forth in this, Agreement,
the Board shall consider the platter no later than the 2" d regularly scheduled meeting of the Board
after committee consideration. All such time frames for County Representative approvals set
forth in this Agreement shall be deemed amended accordingly. The Stadium Operator and any
other Person dealing with the County or City in. connection with this Agreement or any matter
'governed by this Agreement may rely and shall be fully protected in relying upon the authority
of its Government Representative to act for and bind the County and City; as the case may be, in
any such matter, The County and City shall cause its Government Representative to comply
with all of the provisions of this Agreement.
(b) The President of the Stadium Operator or his designee (the "Stadium
Operator Representative") shall act as liaison and contact person between the Stadium Operator,
on "the one hand, and the County and/or the City, on the other hand, in administering and
32
implementing the terms of this Agreement. The President of the Stadium Operator. shall notify
the other Parties in writing if he designates (or re -designates) another individual to serve as
Stadium Operator Representative. The Stadium Operator Representative shall have the power;
authority and right, on behalf .of the Stadium Operator, and without any further resolution or
action of the Stadium Operatorto: •
(i) review, approve and consent to documents and requests required or
allowed by the .Government Representative(s), the County and/or the City; as the case may be,_ to
be submitted to the -Stadium Operator pursuant to this.Agreement;
(ii) consent to •.and approve actions, events and undertakings by the
• Government Representatives(s), the County and/or the City, -as the case May, or other- Persons for
which consent and/or approval is required from the Stadium Operator;
(iii) make appointments of individuals or entities required to be•
.appointed or designated -by the Stadium Operatorn.this Agreement;
(iv) sign .any and all documents on • behalf of the .Stadium Operator
necessary or convenient to the foregoing.approyals, consents and appointments; and
(v) grant waivers and enter into amendments to this Agreement.
Any consent, approval, .decision, determination, waiver or amendment under this Agreement•by,
the Stadium Operator Representative shall be binding on the Stadium Operator. The
Governnent Parties and any other Person dealing with the Stadium Operatorin connection with
•
this Agreement or any:Matter atter governed. by this Agreement may rely and shall be fully protected
in relying upon the authority .of the Stadium Operator Representative to a:ct for and. bind the
Stadium Operator in any such matter. The Stadium Operator shall cause the Operator Stadium.
Representative to comply with all of the_provisions of this Agreement.
• 11.12 Headings. • The headings in this Agreement are included for convenience and
identification only and are in -no way intended to describe, interpret, define or lirnit the _scope,
extent OT intent of this Agreement or of its provisions. •
11.13 General Interpretive Provisions... Whenever the context may require, terms used in
this Agreement shall include the singular and plural forms, and any pronoun shall include the
corresponding masculine and feminine forms. The ten] "including", whenever, used in any.
provision of this Agreement, means including but without limiting the generality of any
description preceding or succeeding such term. Each reference to a Person shall •include a
• reference to such PersOn's successors and assigns. All references to "Articles", "Sections
"Schedules" or "Exhibits" shall be references to the Articles, Sections, Schedules and Exhibits to
this Agreement, except to the extent that any such reference specifically refers • to another
document. Bach of the Parties has agreed to the use of the particular language of the provisions
of this Agreement and any questions of doubtful interpretation shall not be resolved by any rule
or interpretation against the draftsman.
11.14 Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under Applicable Law, but if any
33
C s)
provision of this Agreement is held to be prohibited by or invalid under generally Applicable
Law, the parties to this Agreement shall, to the extent possible, negotiate a revised provision
which (a) cornplies.with generally Applicable. Law, (b).does not alter any of the substantive
rights, obligations or liabilities of any Party under this Agreement or any other Stadium
Agreement, and (c) confers upon the Parties the benefits intended fo be conferred by the invalid
provision.; and the remaining provisions of this Agreement, if capable of substantial performance,
shall be enforced as if this Agreement was entered into without the invalid provision..
.11.15 Further Assurances. The Parties, whenever and as often as each shall be.
reasonably requested to do so by another Party, shall execute or cause to be executed any further
documents and take any further actions as may be reasonably necessary or expedient in order to
consummate the transactions provided for in, .and to carry out the purpose and intent of, this
Agreement and each of the other Stadium Agreements. The City shall assist and.cooperate with
the Stadium Operator and its Affiliates -in connection with their financing activities, including by
executing such documents as the Stadium Operator or its Affiliates may reasonably request to
facilitate such financings.
11.16 Absence of Third -Party Beneficiaries. Except for the Team Affiliates, nothing in
this Agreement, express or implied, is intended to (a) confer upon any Person other than the
Parties and their permitted successors and assigns any rights or remedies under or by reason of
this Agreement as a third -party beneficiary or. otherwise except as specifically provided -in this
Agreement; or (b) authorize anyone not a Party to maintain an action pursuant to or based upon
•
this Agreement.
11.11 Governing Law. This Agreement and the interpretation of its terms shall be
governed by the laws. of the State, without application of conflicts, of law principles. .Venue for
any judicial, administrative. or.other action to enforce or construe any term of this Agreement or
arising from or relating to this Agreement shall lie exclusively in Miami, -Florida.
11,18 .Time of Essence. Time is of the essence with respect to the performance of each
of the covenants and obligations contained in this. Agreement.
1 1.19 Relationship of Parties. No partnership or joint venture is established. among the
Parties under this Agreement. Except as expressly provided in this Agreement, no Party or its
officers, elected or appointed officials, employees, agents, independent contractors or consultants.:
shall be considered employees or agents of any other •Party or to have been authorized to .incur
any expense on behalf of any other Party or to act for or to bind any other Party. No Party shall
be liable for any acts, omissions or negligence on the part of the other Party or their employees,
officials, agents, independent contractors, licensees and invitees.
11.20 Sovereign Rights. The City and the County retain all of their respective sovereign
prerogatives and rights as a city or county under State law with respect to the City Parking
Project and the operation of the Parking Facilities, respectively.- It is expressly understood that
notwithstanding any provisions of this Agreement and the Stadium Agreements and the City's or
the County's status thereunder:
34
• (a) The City and the County retain all of its -respective sovereign prerogatives and rights
and regulatory authority (quasi-judicial or otherwise) as a city or a county under State law and
Shall in no way be estopped from withholding or refusing to issue' any approvals of applications
for building; zoning, planning or .development under present or future laws and regulations
whatever nature applicable to the planning, design, construction and development of.the Parking -
Facilities or the operation thereof, or be liable for the same; and
(b.) any -City or ,County covenant or obligation that may be contained in this Agreement. .
shall not- bind the Board,• the County's .Planning and Zoning Department, Miami -Dade
Department of. Environmental Resources Management, the Commission or any other City, •
County, federal or state department or authority, connnittee or agency to b ant or ]eave 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 City, the -County or other
applicable govenunenta] agencies in the exercise of its police power.
11.21 Force Majeure. Except as otherwise -herein expressly provided, if.any.Party shall
be delayed in the performance of any covenant or obligation hereunder (other than any covenant
or obligation to pay money), as a result of any Force Majeure, then the .perforniance.of such
. covenant or obligation shall be excused for -the period of such delay and the period •for the -
perfonnance of such covenant or obligation shall be. extended by -the number of days .equivalent
to the number of days.of the impact 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...
11.22 Major League. Baseball Requiternents. Notwithstanding any other provision of
this Agreement, except for the last sentence in this Section, the . obligations of the .Stadium'
Operator 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.City and the.County agree not to seek an injunction or similarrelief against
Major. League Baseball to enjoin its implementation of the Baseball Rules and Regulations.. In
the event that any- act or omission taken by the Stadium Operator to comply with Baseball Rules
and Regulations materially affects the rights of _the City or the County.und.er this Agreement or •
deprives the City or the County of the essential benefits of this Agreement, the Parties will work
in good faith to amend the .terms of this Agreement to neutralize the effect. The Stadium
Operator agrees in any event that if compliance by it with Baseball Rules and Regulations results
in .a failure of the Stadium Operator to fulfill its obligations under this Agreement, the City and
the County may enforce remedies for the Stadium Operator's failure to fulfill its obligations as
provided in this Agreement and the other Stadiurn Agreements.
11.23 Mutual- Covenants.
(a) The Parties, whenever and as often as each shall be reasonably requested
todo so by another Party or by the Team, shall execute or cause to be executed any further
documents and take any further actions as may be reasonably necessary or expedient in order to
consummate the transactions provided for in,•and to carry out the purpose and intent of, this
35
Agreement and each of the other Stadium Agreements, except to the. extent such actions by the a
Government Party requires approval by the Board or the Commission, as applicable.
.(b) No P.arty'shall terminate this Agreement on the ground of ultra vires acts
or for any illegality or on the basis of any challenge to the .enforceability of..this Agreement,
except as otherwise permitted in this Agreement or in the other Stadium Agreements. Subject to
the preceding sentence, no such .challenge.rrray be asserted by any Party except by the institution
of a declaratory .action in which the Parties and the Team are parties.
(c) Bach • Party shall • vigorously • contest any challenge to the validity,
authorization or enforceability of this Agreement (a "Challenge"), whether asserted by a
taxpayer or any other Person, except where to clo so would be cleeined by such Party as
presenting a conflict of interest or would be contrary to Applicable Law. The applicable Party
shall pay all of the legal fees, costs and other expenses incurred by it in contesting -the. Challenge.
The applicable Party shall consult with the Parties in contesting any Challenge. The Parties shall
take all ministerial actions and proceedings reasonably necessary or .appropriate to remedy any
apparent invalidity, lack or defect in authorization, or illegality, or to cure any other defect,,
which has been asserted or threatened, '1-Iowever, the County. or City, shall not be obligated to
take any action which requires approval of the Board or Commission, as the case may be, or
which is deemed by the County or City to present a conflict of interest or is deemed by the
County or City to•be contrary to Applicable Law.
(d) In exercising its rights and fulfilling its obligations under this Agreement,.
each Party shall act in good faith. Notwithstanding the foregoing, each party acknowledges that
in each instance under this Agreement where a Party is obligated to exercise good. faith, to use
good faith efforts onto use diligent reasonable efforts or other similar efforts, such Party shall not
be required to expend any funds, or grant any other consideration of any kind, in the performance
of such undertaking, and each Party further- acknowledges that the obligation of any Party.to. act
in good faith, undertake good faith efforts, or to use diligent reasonable efforts or other similar
efforts does not Constitute -a warranty, representation. or'other guaranty that the result which the.
Parties are attempting to achieve will be successfully achieved and no Party shall be liable for
any failure to achieve. the'result or results .intended so long 'as the Party has complied with its
obligation to act in accordance with the applicable standard.'
11.24 . Anti -Discrimination Clause. In accordance with Applicable Law, the Parties
shall not discriminate against any person or group of persons on the basis of race, sex, religion,
national or ethnic origin; age or disability.
11.25 Valid Agreement. Each Government Party agrees for the benefit of the Stadium
Operator that the Stadium Operator shall have the right to collect damages and otherwise enforce
this Agreement against such Government Party with respect to any breach of this .Agreement .by
such Goveininent Party, including for any third party claims against the Stadium Operator
arising from any breach of this Agreement by a Government Party.
11.26 Books and Records; Audit. The Stadium Operator shall keep and maintain all
books, records and documents. of all kinds in any way related to the Stadium Operator's rights
.and obligations under this Agreement, separate and identifiable from its other books, records
36
r-_
and documents, and shall make such books and records available to the City for inspection,
copying and audit, in accordance with Applicable Law.
11.27 County inspector .General and -Commission Auditor. The attention of the Parties
is hereby directed to Section 2-1076 of the County Code establishing the Miami -Dade County
Office.of ,.the_ ,Inspector :General ..(the "OIG"), which .has _the... authority and .power .to investigate
County affairs and review past, present and proposed County programs, accounts, records,
contracts and transactions. The OIG contract fee shall not apply to this Agreement or any other
Stadium Agreement, and the . City and the Team Affiliates shall not be..responsible for any
expense reimbursements Or other amounts payable to the OIG or its contractors. The:attention.of
the Parties is hereby directed to Section 2-481 of the County Code related to the Commission
Auditor.
11.28 Counterparts. This. Agreement may be executed in any number of counterparts
with the same effect as if all Parties had executed the same document. All counterparts shall be
construed together and shall constitute one instrument.
With respect to the County Provisions only:
CITY O, FLORIDA IYIIAMI-DADE COUNTY, FLORIDA
By:
lizge Hernandez
City Manager
City of Miami
Al _LEST:
By:
City Clerk
APPROVED AS TO FORM
AND CORRECTNESS:
City Attorney v(-k
J ULIE 0 BIt
By
George M.urgess
County Manager
Miami -Dade County
IEST:
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY:.
J i< .4-n C- k
County Attorney
MARLINS STADIUM OPERATOR,.LLC APPROVED AS CE
REQUIREMENTS:
37
By:
Name:
Risk. ManZgeme t D,i� cto
( '��2 V�\Nni i r� e
Exhibit List
Exhibit A — Entire Site, Baseball Stadium Site and City Parking Site
Exhibit B — Parking Criteria.
Exhibit C — Operating Standard
Exhibit D — Insurance
Hot: SIT.
APPROX,
1:85 .SP.
•
Baseball Stadium Site/City Parking Site •
Exhibit A
is -1
Pie q' �`7'+, � �i•�- .'�>l r.
cstWAy
NW 7TH STREET
:BAS.FI3'1
APPROX.
109 SP.-
.ARP:ROX.
• lT,
..1'; 27• S P.
FACE •PARKING'
OCT _MED P IrkikiN G
iIV4STAbIU116SITE
MIAMI BALLPAR K
NORTH
21 JANUARY 2009
BASEBALL STADIUM SITE, PARKING FACILITIES •
FLORID}. MARLINS
CRY OF MIAMI
M IAMI- HARE COMM:
EXHIBIT B
PARKING CRITERIA
General
•
Approximately 5,713 parking spaces available for the Baseball Stadium, located within
the Entire Site, which comprise of approximately 4,744 spaces in four (4) parking
structures and 969 spaces in six (6) surface lots with the following allocation:
Description
Structured Parking Garages:
Pl: Located to the East of the building that is located at the S/E corner of
NW 7'1' Street and NW 16th Avenue.
• • Approximate number of spaces: 928 . •
Nuinber. of levels::•5 •
APPrOXiniatetotaIparking area: 354,700 sq. ft..
Approximate height to top tier: 47 ft.
• Width oflypical •spaces:. 9)0;' on first five levels.
P.2: Located at S/W corner of NW 7' Street and NW 14'h Avenue.
Number of levels: 5 .
Approximate number of spaces: 1,316
Approximate total parking area: 495,700 sq. ft.
Approximate height to top tier: 47 ft.
Width oftypical spaces: 9'0" on first five levels.
P3: Located at N/E corner of NW 3rd Street and NW 16111 Avenue.
Number oflevels: 6
Approximate number of spaces: 1,226
Approximate total parking area: 480,400 sq. ft.
Approximate height to top tier: 54 ft.
Width of typical spaces: 9'0" on first six leVels,
Page 1 of 3
P4: Located at N/W comer of NW 3 rd Street and NW 14`1' Avenue,
Number of levels; 6
Approxuiate number of spaces: 1,274
Approximate total parking area: 491,400 sq. ft.
Approximate height to top tier: 54 ft.
Width of typical spaces: 9'0" on first six levels.
Surface Lots: .
A total of six (6) lots, three (3) lots located West of NW 16th Avenue between NW 4`°
Street and NW 7th Street, and three (3) lots located East of NW 14°i Avenue between NW
3'd Street and NW 6"' Street.
Approximate number of spaces: 969
Design Criteria
. Approximately 5,700 to 6,000 parking spaces located within the Entire Site.
• Design should be governed as "event" style parking structure (ability to support large
events). •
▪ All ADA spaces.to be located on grade level -of each structured parking garage.
A . Design to support a 40-minute exit time at capacity.
a) Plan for one exit lane for every 400/450 cars.
b) Ramps strategically located to accommodate required exiting time.
c) Build number of stairs and elevators to support the exiting criteria.
• Develop building edges .that compliment the architecture of the neighborhood and •the
. ballpark with approximately 15 feet sidewalks.
• Design Parking Facilities to support the Baseball Stadium in achieving certification via •• :
the Sustainable Buildings Program (i.e.: space for Alternative Fuel and Low Emissions -
Vehicles, provision for charging stations.for electric vehicles (empty conduits) and space
allocated for carpool vehicles, dedicated area for bicycles in one or more structured
•
parking garage).
-Vehicular Entrance/Exit points cannot be placed on either 4lb. Street or 6°i Street. These
•
streets will be closed on game days.
Lobbies to provide clear vertical circulation and to be focal points of the structure.
Integrate parking access control system for baseball games, other events and non event
days (i.e. ticket dispensers for other events and non -game days).
Page 2 of 3
•
d Two-way traffic flow with 90 degree parking; or One -way traffic flow with 60/75 degree
parking at the. option of the City.
• Minimum 60' parking bays, aisle .widths of.24', 9' by 1.8'.parking stalls on.all levels of
each structured parking garage lot on the North and South side.
• All surface lots will consist of 9' by 18' parking stalls with markers for each stall (except
for W3).
O For surface lots, except for W3, the minimum drive aisle will be 20' and all drive aisle
will be paved, subject to zoning and code -compliance.
First floor must clear height of 12' to meet ADA standards.
:o Ramp parking cannot exceed a 6% slope while speed ramps cannot exceed a 13% slope.
Specifications for elevators in structured parking garages:
a) Ratio of 2 elevators for the first 500 parking spaces, 1 for every 500 spaces
thereafter;
b) IVIinimurn of 3,000 lb capacity.
o Safety and security requirements:
a. Well lit, and well distributed lighting systems including perimeter lighting
(average of 40 foot candles at entrance, exits, stairs, and elevator lobbies,
average of 10 foot candles at driving sites);
b. Provisions (empty conduit) for "Call for assistance" stations with blue
lights, located at pertinent locations on each floor, including at the end of
parking aisles, in front and inside of elevators, in lobbies and stairs;
c. Provisions (empty conduit) for CCTV at entrances/exits to and from the
facility, elevator lobbies, and security office;
d. Concrete filled steel pipe bollards and curbs to protect equipment.
Page 3 of 3
EXHIBIT C
OPERATING STANDARD
General:.
The Parking Facilities shall be operated as "event parking" (in a manner that
allows the ingress and egress of a large volume of cars in a short period oftim.e in a
safe and efficient manner) in accordance with other comparable sports facilities
with adjacent parking.
All parking spaces in each Parking Facility will be individually numbered
with:a distinct numbering systern from other Parking Facilities. Each season ticket
parking pass will be.associated with a specific Parking Facility (or -portion thereof);
as designated by the Stadium Operator. All .Parking Facilities will be individually
named and clearly identified for patrons to easily return to their vehicles after
Stadium Events.
Staffin
• Personnel Standards: The City will hire qualified and well -trained personnel
to operate the Parking Facilities efficientlyand to assure collection, security, and
•
reconciliation of revenues, mrith emphasis on customer service, All personnel will
treat patrons in a courteous, .professional and timely manner. All employees will
wear a uniform so as. to present a neat, clean and professional appearance at all
times,
Types of Personnel: The City will provide sufficient personnel tooperate,
maintain and secure the Parking Facilities, including the following:
Cashiers/Parking attendants to control access at entries and collect
fees and/or.passes to allow for the fastest entry and empty times;
Supervisor and cashiers to reconcile cash and passes with number of
parked cars at the end of each event;
Supervisors to generally assist with ingress and egress from the
parking facility in an orderly and efficient manner;
Custodial personnel to clean i) the Parking Facilities before each
Stadium Event, ii) stairs, lobbies and the elevators before each
Stadium Event and as required during and after Stadium Events.
Trash will be removed before each Stadium Event and durnpster areas
will be sanitized as required;
e Security personnel to ensure i) patrons can access and exit the
Parking Facilitiesin a safe manner, ii) no unauthorized person is
present in or around the Parking Facilities, and iii) elevators are
functioning, and the stairwells and Parking Facilities. are lighted
adequately. Security to periodically circulate the Parking Facilities to
Page 1 of 3
prevent theft and vandalism and to assist patrons with disabled
vehi cles.
Staffing Levels: The City shall consult with the Stadium Operator with
respect to its staffing levels from time to time, and at least prior to each home stand
of MLB I-Iome Games. If the parties .are unable to agree to staffing levels for MLB
1-Iome Games, the City shall decide the final staffing levels, which shall not be less;
than the minimum staffing levels with respect to MLB Home Games:
Cashiers/Parking Attendants
Directors
Custodial Personnel
Security Personnel
26 (5 per structured lot; 1 per surface lot)
44 ( for each structured lot: 2 per floor on .
first 3 floors, 2 for upper floors; 2 per
surface lot)
6 (1 per structured lot; 1 for each of East
. and West surface lots)
8 during MLB Home Games (2 for each of
the structured lots, and roving in the
surface lots)
Custodial:
The Parking Facilities, including their entrances, elevators, stairwells, aisles
and ramps, will be kept in a clean condition at all times, free of odors, debris and
trash.
Maintenance and Repairs:
The City shall keep the Parking Facilities in good maintenance and proceed
\nvith repairs as needed, including by procuring all work, labor and materials
necessary to (a) maintain the Parking Facilities in good, clean, working order, (b)
'maintain the surfaces and 'striping of the Parking Facilities in good conclition,.(c)
promptly repair or restore equipment, fixtures and other components of the Parking
Facilities as a result of ordinary wear and tear or•casualty of any nature (including
promptly repairing elevators, signs and lighting equipment), (d) replace equipment,
fixtures and components of the Parking Facilities at the end of their economic life
cycle, and (e) improve the Parking Facilities so that they comply with this Operating
Standard. To ensure the Parking Facilities are operated in a safe manner with a
minimum of inconvenience to its patrons, the City will establish and maintain a
Preventive Maintenance Program. The City shall conduct maintenance and repairs
so as not tolimit the availability of all spaces in the Parking Facilities for Stadium
Events.
Regular equipment maintenance must be conducted on all parking control
equipment in each Parking Facility to ensure that revenues and accounting systems
are accurate. Parking equipment must be inspected daily prior to each Stadium
Page 2 of 3
Event. This includes computers, ticket dispensers, gates, counters, credit card and
debit card machines. Parking control devices shall be equipped with locks to
prevent the devices from:being manipulated. ,In addition,, securi.ty_s.eals.m.ustbe.in
place on every piece of equipment. City or Parking Manager employees will be
responsible to visually inspect equipment daily to ensure that all locks and
equipment seals are in place
Inoperable motor vehicles, trailers, storage or similar items shall not be
allowed to remain in the Parking Facilities and shall promptly be removed by the
City.
Records and controls;
The "City will follow prudent policies and. procedures so as to secure the.
parking fee revenues .from• the .Stadium • Events and to provide complete and
accurate information on parking proceeds and use.
The City shall, and shall cause its parking personnel and Parking Manager (if
any) to, liaise with Stadium Operator for the planning of the staffing and other
operational issues regarding .the Stadium Events, andto review and reconcile; all
accounting reports and records regarding the event parking activities.
Signage;
The City will be responsible for appropriate directional and informational
signage related to the Parking Facilities on and around the Entire Site.
Vehicle Towing Service:
As part of basic service made available to patrons for all MLB Events and
Other .Events .;expected' .to have attendance of at least 5,000 people, the City will be
responsible for having a vehicle towing service on -site from at least one hour before
through at least two hours after each such Stadium Event.
Parking Procedures Manual:
The City and the Stadium Operator shall develop, at least 90 days prior to
opening of .the Baseball .Stadium, a detailed Parking Procedures Manual that will
contain specific information regarding' the operation of the Parking Facilities in
accordance with this Operating Standard. A Parking Employee Handbook shall be
provided to parking personnel (and updated from time to time) with all relevant
customer service information on the Baseball Stadium, the Parking Facilities, traffic,.
and directions.
Page 3 of 3
CITY PARTING AGREEMENT
EXIII3IT D-1
INSURANCE REQUIREMENTS
MIAMI CITY PAIRING CONSTRUCTION PHASE
I. Commercial General Liability (PRO.TECT SPECIFIC)
A. Limits of.Liability
..Bodily Injury and Properly Damage Liability
Each Occurrence
General Aggregate Limit
.Products/Completed Operations
Personal and Advertising Injury
Medical Payments
$ 1,000,000
$ 2,000,000
$ 1,000,000
1,000,000
$ 10,000
B. Endorsements Required
City of Miami, Marlins Stadium Operator, LLC, Marlins Stadium
Developer, LLC, Florida Marlins, LP and Miami -Dade County included as
an additional insured (CG 2010 11/85)
• Contingent Liability (Independent Contractors Coverage)
Contractual Liability
Waiver of Subrogation
Premises & Operations Liability
Explosion, Collapse and Underground Hazard
Loading and Unloading
Completed Operations for a period of I 0 Years
IL Business Automobile Liability
A. Limits of Liability
Bodily Injury and Properly Damage Liability
Combined Single Limit
Any Auto/Owned Autos/Scheduled Autos
Including Hired, Borrowed or Non -Owned Autos
Any One Accident $1,000,000
Page 1 of 4
B.. Endorsements Required
City of Miami, Marlins Stadium Operator, LLC, Marlins Stadium
Developer, LLC, Florida Marlins, LP, and Miami Dade County included as
an Additional Insured
Employees as insureds
Worker's Compensation
Limits of Liability: meeting the statutory requirements of the State of
Florida, including, as applicable, Chapter 440, Florida Statutes.
Waiver of subrogation
N. Employer's Liability
A. Limits of Liability
$1.,000,000 for bodily injury caused by an accident, each accident.
$1,000,000 for bodily injury caused.by disease; each eniployee
$1,000,000 for bodily injury caused by disease, policy limit
V. Umbrella Toncy/Excess Liability (Excess Following Form/True Excess
Following Form/True Umbrella) in excess of the commercial general
liability, employer's liability and business automobile liability coverage
provided hereunder..
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence
Aggregate
B. Endorsements Required
$20,000,000
$20,000,000
City ofMiani, Marlins Stadium Operator LLC, Marlins Stadium
Developer, LLC, Florida Marlins, 1✓P and Miami Dade County included
as an additional insured
Increased limits to General Liability, Auto and Ernployer's Liability
Coverage
Page 2 of 4
VI. Payment and Performance Bond Full Contract: Amount
City of Miami, Marlins Stadium Operator LLC, Marlins Stadium
Developer,, LLC, Florida Marlins, LP and Miami Dade County included as
Obligees.
VTI. Builders' Risk
Causes of Loss: All Risk -Specific Coverage Project Location
Valuation: Replacement Cost
Deductible: $25,000 All other Perils
5% maximum on Wind & Hail and Flood
City of Miami, Marlins Stadium Operator, LLC, Marlins Stadiumn
Developer, LLC, Florida Marlins, LP, Marlins Stadium Developer, LLC
and Miami Dacle County listed as an Additional Insured
A. Limit/Value at Location or Site: Replacement cost of Parking
Facilities, subject to customary sub -limits in the South Florida
insurance market
B. Coverage Extensions
.• Materials, supplies and similar property owned by others for
which you are responsible.
• Full coverage up to policy limits for equipment breakdown.
• Temporary storage/transit coverage.
• Full coverage up to policy limits for site preparation,
re -excavation, re -preparation and re -grade in the event of a loss.
• Fences, scaffolding, construction forms coverage and signs
• .Valuable papers coverage .for blueprints, site plans and similar
documents. •
Trees, shrubs, sod, plants while at premises.
• Flood, including inundation, rain, seepage and water damage.
• Earthquake
• Terromisrn
• Business Interruption (Delay in Completion /Soft Costs)
• New ordinance or law; reimbursement for any resulting loss of
value to the undamaged portion, and required demolition
expenses, including construction necessary to repair, rebuild or re-
construct damaged parts.
• Temporary structures, cribbing and false work built or erected at
construction site.
• Unintentional errors and omissions in reporting clause
.,, • Debris Removal
• Expediting and contractor's extra expense.
Page 3 of 4
..ViI. Professional.L-iability
A. Limits of Liability
At a minimum
Each Claim
General Aggregate Limit
$ 5,000,000
$ 5,000,000
The above policies shall provide the City of Miami and each additional insured with
written notice of cancellation or material change from the insurer not less than (30) days
prior to any such cancellation or material change. Further, -coverage for the Additional
Insureds shall apply on a primary basis irrespective of any other insurance, whether.
collectible or not. Any policy deductibles or retentions, whether self -insured or self -
funded, shall be the :obligation of City and shall not apply to Team Affiliates: Alf policies
shall be endorsed to provide a waiver of subrogation in favor of .the "Additional
Insureds". City Shall furnish Team Affiliates with certificates of insurance evidencing
compliance with all insurance provisions noted above prior to the commencement of the
Work and annually prior to the expiration of each required insurance policy.
Companies authorized to do business in the State of Florida, with the following qualifications,
shall issue all insurance policies required above:
The company must be rated no less than "A-" as to management, and no less than
"Class VII"as to Financial Strength, by the latest edition of Best's Insurance Guide,
published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies
and /or certificates of insurance are subject to review and verification by Risk
Management prior to insurance approval.
Page 4 of 4
CITY PARKING AGREEMENT
EMEOLBIT D-2
INSURANCE REQUIREMENTS TO BE PROVIDED .
BY CITY OR PARIcLNIG MANAGER FOR THE
OPERATIONAL PHASE OF THE PARKING
GARAGE FACILITY
I. Commercial General Liability (Primary & Noiz Contributor))
•
A. Limits of Liability
Bodily Injury and Property Damage
Each Occurrence
• General Aggregate Limit
• Products/Completed Op erations
Personal and Advertising Injury
Damage to Rented Premises
Medical Payments
Liability
$1,000,000
$2,000,000
$1,000,000
$1,000,000
S300,000
$10,000
B. Endorsements Required .
City of Miami, Marlins Stadium Operator, LLC,.Florida Marlins, LP and
Miami -Dade County included as an additional insured (CG 2010 11/85) or
its equivalence
Contingent Liability (Independent -Contractors Coverage)
Contractual Liability •
Waiver of Subrogation
Premises & Operations Liability
Explosion, Collapse and Underground Hazard
Loading and Unloading
II. Business Automobile Liability
• A. Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto/Owned Autos/Scheduled Autos Including Hired, Borrowed or
Non -Owned Autos Any One Accident $ 1,000,000
Page 1 of 4
B. Endorsements Required
City of Miami, Marlins Stadium Operator, LLC, Florida Marlins, LP, and
1Ydami.Dade County included as an Additional Insured
'Employees as insureds
iTT. Worker's Compensation
Limits of Liability: meeting the statutory requirements of the State of
Florida
Waiver of subrogation
• • IV: •Employer's Liability
• A: Limits .of Liability ..
$500,000 for bodily injury caused by an accident, each accident.
• 5500,000 for bodilyinjury caused by disease, each employee •
$500,000 for bodily injury caused by disease, policy limit
1/. -Umbrella Policy/Excess Liability (Excess Following Form/True Excess
Following Form/True Umbrella) in excess of the commercial general
liability, employer's liability and bizsiness automobile liability coverage.
• • provided hereunder.
A; Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence
Aggregate
$10,000,000
$10,000,000
B. Endorsements Required.
City of Miami, Marlins Stadium Operator LLC, Florida Marlins, LP and
Miami Dade County included as an additional insured
Increased limits to General Liability, Auto and Employer's Liability
Coverage
Page 2 of 4
VI. Garage keeper's .Legal Liability (GKL)
A. Limits of Liability •$2,000,000
Other than Collision Deductible .$500/2,500 maximum
Collision Deductible . $1,000/5,000 maximum
.City of Miami, Marlins Stadium Operator LLC, Florida Marlins, LP and
Miami Dade County included as an additional insured
VII. Crime Coverage
A. Limits of Liability •
Employee Dishonesty including
Forgery and alteration $1,000,000
Money & Securities In & Out Coverage $ 25,000
City of Miami, Marlins Stadium Operator LLC, Florida Marlins, LP and
Miami Dade County included as Loss -Payee on this coverage
VIII. • Property Coverage
City will provide the County and the Team Affiliates with evidence of insurance
affording coverage against "All Risk" of direct physical loss or damage and Time Element
coverage, in an amount equal to the replacement cost of the Parking Facilities, including
coverage for windstorm, hail, _earthquake and flood, subject to sub -limits customarily
•
maintained by the City. This policy shall further provide coverage for contingent business
income to protect against potential loss of income under the terims of this Agreement as a
result of a casualty to the Stadium Premises from a covered cause of loss.
IX. Performance Bond (If Applicable) $ TBD
City of Miami, Marlins Stadium Operator LLC, Florida Marlins, LP and Miami Dade
County included as Obligees.
The above policies shall provide the City of Miami and each additional insured with
written notice of cancellation or material change from the insurer not less .than (30) days
prior to any such cancellation or material change. Further, coverage for the Additional
Insureds shall apply on a primary basis irrespective of any other insurance, whether
collectible or not. Any policy deductibles or retentions, whether self -insured or self=
funded, shall be the obligation of City and shall not apply to Team Affiliates. All policies
shall be endorsed to provide a waiver of subrogation in favor of the "Additional
Insureds". City shall furnish Team Affiliates with certificates of insurance evidencing
compliance with all insurance provisions noted above prior to start of operations of the
Parking Facilities and annually prior to the expiration of each required insurance policy.
Page 3 of 4
Evet,y five, years from the date of this Agreement, the Parties will revisit the limits and
sub -limits of the policies above and adjust to levels that are reasonable and customary in
the'South-Florida-insurance market..
Companies authorized to do business in the State of Florida, with the following qualifications,
shall issue all insurance policies required above:
The company must be rated no less than "A-" as to management, and no less than "Class
VII" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by
A.M. Best' Company, Oldwick, New Jersey, or its equivalent, All policies and /or..
certificates of insurance are subject to review and verification by Risk Management prior
to insurance approval.
Page 4 of 4
EXHIBIT "C"
Assignment and Assumption Agreement
Assignment. and Assumption Agreement
The parties to. this Assignrnent and Assumption Agreement, dated as of May 7, 2010, are
Marlins Stadium Operator, LLC, a Delaware limited liability company ("Assignor"), and
Stadium Parking, LLC, a Delaware limited liability company ("Assignee").
Assignor is:party to a City Parking Agreement dated as of April 15, 2009 (the "Parking
Agreement") with the City. of'Miami and Miami -Dade County. (Capitalized terms used herein
and not otherwise defined are defined in the Parking Agreement.)
Assignor and Assignee agree as follows:
1. Assignor hereby assigns to Assignee its rights under the Parking Agreement to
receive revenues derived from the use of the Parking Facilities for Stadium Events.
2. Assignee hereby assumes Assignor's obligation to pay, or cause to be paid, to the
City (a) the amounts payable by Assignor under Sections 6.3(a) and (b) of the Parking
Agreement and (b) the generally applicable taxes and surcharges payable by Assignor under
Section 6.3(d) of the Parking Agreement.
3. Assignee shall have the same rights and obligations as Assignor under the Parking
Agreement with respect to procedural matters governing the revenues and payments referred to
above, such as the right to audit the City's books and records and the obligation to make its
books and records available to the City for audit.
Assignor:
Marlins Stadium Operator, LLC
Assignee:
Stadium Parking, .LLC
By:
0255/48633-016 Current/16651635v2