Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
Exhibit 1 SUB
5-,(Lsii tele i k ca 4, he f2_,PA_ doctome MIAMI BALLPARK PARKING FACILITIES INTERLOCAL COOPERATION & LEASE AGREEMENT TABLE OF CONTENTS ARTICLE I: DEFINITIONS 2 Section 1.1 Definitions 2 Section 1.2 Exhibits 7 ARTICLE II: TERM Section 2.1 Section 2.2 Section 2.3 Section 2.4 ARTICLE III: Section 3.1 Section 3.2 Section 3.3 Section 3.4 Section 3.5 Section 3.6 Section 3.7 Section 3.8 Section 3.9 Section 3.10 ARTICLE IV: Section 4.1 Section 4.2 Section 4.3 Section 4.4 Section 4.5 ARTICLE V: Section 5.1 Term Options to Extend Termination 8 Partial Termination 8 8 8 8 THE PROPERTY 8 Title 8 Lease of Property 8 Right of Entry 8 Initial Construction 8 Uses 9 Alterations 9 Damage or Destruction 9 Easements 9 Hazardous Materials; Environmental Laws 9 Surrender • 10 Advertising; Signage 10 Team Advertising 10 PARKING FACILITIES Operation Operating Hours W3 Operations Surface Lot Alternative Use Private Drives Personnel Maintenance; Repairs; Casualty Maintenance Tasks; Schedule Wear Mitigation Parking Fees Fee Adjustments Fee Collection Surcharges Fee Management Priority Use Revenue Generation; Incentives 10 10 10 10 11 11 11 11 11 12 12 12 12 12 12 12 12 RETAIL FACILITIES 12 Purpose; Supplemental Revenue 13 Miami Ballpark Parking Facilities Inte1ocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking Retail Facility Development 13 Subtenant Mix 13 Section 5.2 Subleases & Other Interests 13 Non -Disturbance & Attormnent 13 Section 5.3 Appropriate Subtenants 13 Section 5.4 Retail Interests; Minimum Requirements 14 Fair Market Value 14 Award of Retail Interests; Conflicts of Interest 14 Security Deposits 14 Restricted Uses 14 Games of Chance; Gambling Activities 15 Notice of Interlocal 15 Insurance 15 Indemnification 15 Alterations 15 Utilities 15 Access to Retail Facilities 15 Hazardous Materials 16 Liens and Encumbrances 16 Audit Rights; Records Maintenance 16 Audited Reports of Gross Revenues 16 Nondiscrimination 16 Executed Documents; Notices 16 Section 5.5 Subtenant Default 16 Section 5.6 No Liability 16 Section 5.7 Operation 17 Section 5.8 Revenue Management 17 ARTICLE VI: REVENUE MANAGEMENT 17 Section 6.1 Purpose; Intent 17 Section 6.2 Special Revenue Fund 17 Sole Source 17 Tiered Sourcing; Source Priority 17 Insufficient Funds 17 Excess Funds 18 Bond Obligations 18 Section 6.3 Revenue Collection 18 Other Fees Collected 18 Cash Losses 18 Income and Expense Statement 18 Section 6.4 Operating Budget 18 Budget Preparation 19 Initial Budget 19 Budget Amendments 19 Budget Increases 19 Section 6.5 Combined Expenses 19 Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities > Asset Management > Real Estate> Miami Ballpark Parking Reimbursable Expenses 19 Expense Invoices 19 Reimbursement 19 Invoices Disputed 20 Operating Reserve 20 Section 6.6 Annual Audit 20 Additional Audits 20 Audit Discrepancies 20 ARTICLE VII: CAPITAL IMPROVEMENTS 20 Section 7.1 Purpose 20 Section 7.2 Capital Improvements Plan 21 Section 7.3 Annual Contribution 21 Section 7.4 Annual Budget 21 Section 7.5 Performance 21 Emergency Improvements 21 Section 7.6 Title to Improvements 21 ARTICLE VIII: INSURANCE 21 Section 8.1 Insurance Requirements 21 Property Insurance 21 Liability Insurance 22 Insurance Proceeds 22 ARTICLE IX: ADMINISTRATION 22 Section 9.1 Contract Administration 22 Section 9.2 Notices 22 Section 9.3 Meetings 23 Section 9.4 Monthly Reports 23 Section 9.5 Records Maintenance; Rights to Audit 23 Section 9.6 Disputes 23 Prompt Performance 23 Right to Dispute 23 Dispute Resolution 23 Findings Conclusive 24 Option to Resolve 24 ARTICLE X: WARRANTIES AND REPRESENTATIONS 24 Section 10.1 MPA's Representations 24 ARTICLE XI: MISCELLANEOUS 24 Section 11.1 Recitals 24 Section 11.2 Entire Agreement 24 Section 11.3 Recognition of Existing Agreements 24 Section 11.4 Assigmnent 25 Section 11.5 Amendment 25 Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities > Asset Management > Real Estate > Miami Ballpark Parking Section 11.6 Successors 25 Section 11.7 Governing Law; Severability 25 Section 11.8 Venue 25 Section 11.9 Independent Contractors 25 Section 11.10 Force Majeure 25 Section 11.11 Non -Discrimination 26 Section 11.12 Judicial Interpretation 26 Section 11.13 Captions; Headings; Sections 26 Section 11.14 Conflicting Terms 26 Section 11.15 Waiver 26 Section 11.16 Third -Party Beneficiaries 26 Section 11.17 Time of Essence 26 iv. Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities > Asset Management > Real Estate> Miami Ballpark Parking MIAMI BALLPARK PARKING FACILITIES INTERLOCAL COOPERATION & LEASE AGREEMENT This MIAMI BALLPARK PARKING FACILITIES INTERLOCAL COOPERATION & LEASE AGREEMENT ("Agreement") is entered into this day of , 2011 ("Effective Date"), by and between the DEPARTMENT OF OFF-STREET PARKING of the City of Miami, an agency and instrumentality of the City of Miami, Florida ("MPA"), and the CITY OF MTAMI, FLORIDA, a municipal corporation of the state of Florida ("City" and, together with the MPA, the "Parties"). RECITALS A. The City owns the surface lots, parking structures and retail facilities, as more particularly described in Exhibit "B," attached hereto and made a part hereof, surrounding the Miami Ballpark, located at 501 Marlins Way, Miami, Florida ("Ballpark"). B. The Miami City Commission, by Resolution No. R-09-0509, passed and adopted on October 22, 2009 ("Bond Resolution"), authorized the issuance of Revenue Bonds on a taxable and tax-exempt basis to finance the City's portion of the construction of the Facilities, the proceeds of which are governed by Internal Revenue Code Requirements and Revenue Bond Requirements. C. Pursuant to that certain City Parking Agreement dated April 15, 2009 by and between the City, Marlins Stadium Operator, LLC, and Miami -Dade County ("City Parking Agreement"), a copy of which is attached as Exhibit "D" hereto and made a part hereof, the City (through the MPA or other third -party manager) has the exclusive right, authority and responsibility to operate, manage, maintain and control the Parking Facilities. D. The terms and conditions regarding the operation of the Parking Facilities, as an integral part of the Ballpark project, are assigned to Stadium Parking, LLC, pursuant to that certain Assignment and Assumption Agreement dated May 7, 2010 by and between Marlins Stadium Operator, LLC and Stadium Parking, LLC ("Parking Assignment Agreement"), a copy of which is attached as Exhibit "E" hereto and made a part hereof. E. The MPA was created, pursuant to Section 23 of the Charter of the City of Miami, Florida ("Charter"), to manage off-street parking facilities throughout the city of Miami. F. For purposes of operational efficiency, the City desires to have the management of the Parking Facilities include the leasing of the Retail Facilities. G. The Florida Interlocal Cooperation Act of 1969, Chapter 163, Part I of the Florida Statutes ("Act"), permits local governmental units to make the most efficient use of their powers by enabling them to cooperate with other agencies on a basis of mutual advantage and thereby to provide services and facilities in a manner and pursuant to forms of governmental organization that will accord best with the needs of local conununities, such as those contemplated herein. H. Pursuant to Sections 23 and 29-B(c) of the Charter, the Parties are entering into this interlocal and lease agreement. I. The MPA shall operate the Parking Facilities in a manner that encourages the hiring of small businesses and local workforce that reflects the cultural and ethnic diversity of the city of Miami. J. The express purpose and intent of this Agreement is to accomplish various governmental purposes, including the City's obligations set forth in the City Parking Agreement, to promote economic development, provide the public with convenient and affordable parking, and to maximize the revenues generated by the Facilities, thereby providing the City with additional monies to achieve the improvement of the City overall. K. Pursuant to the Act, the City and the MPA wish to enter into this Agreement to set forth the terms and conditions relating to the management and operation of the Facilities. NOW, THEREFORE, in consideration of the mutual promises of the parties contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City and the MPA agree as follows: ARTICLE I: DEFINITIONS 1.1 Definitions. Any word contained in the text of this Agreement shall be read as the singular or the plural and as the masculine, feminine or neuter gender as may be applicable in the particular context. More specifically, however, for purposes of this Agreement, the following words shall have the meanings ascribed to them in this Section. All terms not defined in this Agreement shall have the meanings ascribed to them in the City Parking Agreement. 1.1.1 "Advertising Fee" shall mean all payments made by the Stadium Operator pursuant to Section 6.6(a) of the City Parking Agreement. 1.1.2 "Alternative Use" shall have the meaning ascribed to it in Section 4.1.3. 1.1.3 "Appropriate Subtenant" shall have the meaning ascribed to it in Section 5.3. 1.1.4 "Bond Resolution" shall have the meaning ascribed to it in the Recitals. 1.1.5 "Capital Improvements" shall mean improvements to the Facilities of a character required to be capitalized under generally accepted accounting principles. 1.1.6 "Capital Improvements Plan" shall have the meaning ascribed to it in Section 7.2. 1.1.7 "Casino Adjustment" shall have the meaning ascribed to it in Section 5.4.5. 1.1.8 "CDT Receipts" shall mean those Convention Development Tax Receipts received by the City, pursuant to that certain Interlocal Agreement dated July 1, 2009, by and between the City and Miami -Dade County, a copy of which is available at the Office of the City Clerk, 3500 Pan American Drive, Miami, Florida. 1.1.9 "Charter" shall have the meaning ascribed to it in the Recitals. -2- Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking 1.1.10 "City Attorney" shall mean the city attorney of the City, and the general counsel to the MPA pursuant to Section 23(g) of the Charter, or his/her designee. 1.1.11 "City Manager" shall mean the chief administrator of the City, or his/her designee. 1.1.12 "Combined Expenses" shall mean the Parking OEM and Retail OEM, collectively. 1.1.13 "Combined Revenues" shall mean Pledge Excess, Parking Fee, Retail Revenue, Advertising Fee, and any other revenue derived from the operation of the Facilities and collected by the Parties, collectively. 1.1.14 "Contract Administrators" shall have the meaning ascribed to it in Section 9.1. 1.1.15 "Debt Service" shall mean the debt service for the Revenue Bonds to be paid by the City. 1.1.16 "District Commissioner" shall mean that certain member of the Miami City Commission for the commission district within which the Property is located. 1.1.17 "El" shall mean the surface parking lot located at 1380 Northwest Sixth Street, Miami, Florida, and being more particularly described in Exhibit "A," attached hereto and made a part hereof. 1.1.18 "E2" shall mean the surface parking lot located at 1390 Northwest Fifth Street, Miami, Florida, and being more particularly described in Exhibit "A." 1.1.19 "E3" shall mean the surface parking lot located at 1350 Northwest Fourth Street, Miami, Florida, and being more particularly described in Exhibit "A." 1.1.20 "Emergency Improvements" shall have the meaning ascribed to it in Section 7.5.1. 1.1.21 "Event Parking Fee" shall mean all payments made to the City by the Stadium Operator, Team, Team Affiliates, Major League Baseball, other sponsors and promoters of events at the stadium, and their respective employees, guests, licensees and patrons pursuant to Section 6.3 of the City Parking Agreement. Article VII. 1.1.22 "Expense Invoice" shall have the meaning ascribed to it in Section 6.5.2. 1.1.23 "Facilities" shall mean the Parking Facilities and the Retail Facilities, collectively. 1.1.24 "Facility CTCI" shall mean the contribution to capital improvements as provided in 1.1.25 "Fair Market Value" shall have the meaning ascribed to it in Section 5.4.1. -3- Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking 1.1.26 "Fiscal Year" shall mean the twelve (12) month period commencing on the first (1st) day of October of every year and ending on the thirtieth (30th) day of September of the year immediately succeeding. For purposes of identification during the ordinary course of operations, and other documents as may be required by this Agreement, a specific Fiscal Year shall be identified as follows: either (1) "Fiscal Year x," where "x" equals the year in which the Fiscal Year ends; or (2) "Fiscal Year y — z," where "y" equals the year in which the Fiscal Year begins and "z" equals the year in which the Fiscal Year ends. 1.1.27 "Funding Deficit" shall mean those times when the projected Level A revenues are insufficient to fund one hundred (100%) percent of the Combined Expenses for any Fiscal Year. 1.1.28 "Generally Reimbursable Expense" shall have the meaning ascribed to it in Section 6.5.1. 1.1.29 "Gross Pledge Excess" shall mean those remaining Pledged Revenues following the City's full payment of Debt Service for each Fiscal Year. 1.1.30 "Hazardous Materials" shall mean any material, substance or waste that is or has the characteristic of being hazardous, toxic, ignitable, reactive or corrosive, including, without limitation, petroleum, PCBs, asbestos, materials known to cause cancer or reproductive problems and those materials, substances and/or wastes, including infectious waste, medical waste and potentially infectious biomedical waste, which are or later become regulated by any local governmental authority or the United States Government, including, but not limited to, substances defined as "hazardous substances," "hazardous materials," "toxic substances," or "hazardous wastes" under any Hazardous Materials Laws. 1.1.31 "Hazardous Materials Laws" shall mean all applicable requirements of federal, state and local environmental, public health and safety laws, regulations, orders, permits, licenses, approvals, ordinances and directives, including but not limited to, all applicable requirements of: the Clean Air Act; the Clean Water Act; the Resource Conservation and Recovery Act, as amended by the Hazardous and Solid Waste Amendments of 1984; the Safe Drinking Water Act; the Comprehensive Environmental Response, Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act of 1986; the Occupational Health and Safety Act; the Toxic Substances Control Act; the Pollutant Discharge Prevention and Control Act; the Water Resources Restoration and Preservation Act; the Florida Air and Water Pollution Control Act; the Florida Safe Drinking Water Act; and the Florida Environmental Reorganization Act of 1975. 1.1.32 "Initial Construction" shall have the meaning ascribed to it in Section 3.3.1. 1.1.33 "Internal Revenue Code" shall mean the Internal Revenue Code of 1986, as amended, together with all regulations promulgated thereunder. 1.1.34 "Internal Revenue Code Requirements" shall mean those requirements relating to tax-exempt bonds under Sections 103(a) and 141 through 150 of the Internal Revenue Code. 1.1.35 "Level A" shall have the meaning ascribed to it in Section 6.2.2. 1.1.36 "Level B" shall have the meaning ascribed to it in Section 6.2.2. -4- Miami Ballpark Parking Facilities Inte1ocal Cooperation & Lease Agreement Public Facilities > Asset Management > Real Estate> Miami Ballpark Parking 1.1.37 "Local Business Advocacy Organization" shall mean the Greater Miami Chamber of Commerce, the Beacon Council, or other similar organization to be determined by the chief executive officer of the MPA from time to time. Agreement. Florida. 1.1.38 "Major League Baseball" shall have the meaning ascribed to it in the City Parking 1.1.39 "Miami City Commission" shall mean the Commission of the City of Miarni, 1.1.40 "MPA Representatives" shall have the meaning ascribed to it in Section 3.8. 1.1.41 "Monthly Report" shall have the meaning ascribed to it in Section 9.4. 1.1.42 "Net Pledge Excess" shall mean those remaining Pledged Revenues following the City's full payment of Debt Service for each Fiscal Year, less that portion set aside for Facility CTCI pursuant to Section 7.3 herein, and that portion set aside for the City's contribution to the capital reserve fund pursuant to Section 9.3 of the Stadium Operating Agreement. 1.1.43 "Notice Recipient" shall have the meaning ascribed to it in Section 3.8. 1.1.44 "Notifying Party" shall have the meaning ascribed to it in Section 3.8. 1.1.45 "Operating Budget" shall have the meaning ascribed to it in Section 6.4. 1.1.46 "Operating Reserve" shall have the meaning ascribed to it in Section 6.5.5. 1.1.47 "Operating Standard" shall have the meaning ascribed to it in the City Parking Agreement. 1.1.48 "P1" shall mean the structured parking facility located at 1502 Northwest Seventh Street, Miami, Florida, and being more particularly illustrated in Exhibit `B," attached hereto and made a part hereof. 1.1.49 "P2" shall mean the structured parking facility located at 1402 Northwest Seventh Street, Miami, Florida, and being more particularly illustrated in Exhibit "B." 1.1.50 "P3" shall mean the structured parking facility located at 1502 Northwest Fourth Street, Miami, Florida, and being more particularly illustrated in Exhibit "B." 1.1.51 "P4" shall mean the structured parking facility located at 1402 Northwest Fourth Street, Miarni, Florida, and being more particularly illustrated in Exhibit "B." 1.1.52 "Parking Facilities" shall mean all Structured Parking, Surface Parking, and Private Drives, excluding the Retail Facilities. -5- Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking 1.1.53 "Parking Fee" shall mean the fee paid by Persons for the use of the Parking Facilities, excluding those Persons whose use is related to MLB Events pursuant to Sections 6.1 and 6.2 of the City Parking Agreement. 1.1.54 "Parking OEM" shall mean those Generally Reimbursable Expenses necessary for the operation and maintenance of the Parking Facilities after giving effect to Sections 4.1 and 4.2. 1.1.55 "Parking Surcharge" shall mean the eighty (80%) percent portion of the total funds derived from the fifteen (15%) percent surcharge to be charged on fees charged by, or imputed on, the Stadium Operator for the use of the Parking Facilities pursuant to Sections 6.1 and 6.2 of the City Parking Agreement. 1.1.56 "Person" shall mean any natural person, firm, partnership, association, corporation, limited liability company, trust, public body, authority, governmental unit or other entity. 1.1.57 "Pledged Revenue" shall mean CDT Receipts, Event Parking Fee, and Parking Surcharge, collectively. 1.1.58 "Private Drives" shall have the meaning ascribed to it in Section 4.1.4. 1.1.59 "Property" shall mean the properties, including the Facilities and other improvements thereon, located in the county of Miami -Dade, state of Florida, as more particularly described in Exhibit "A." 1.1.60 "Receipt" shall have the meaning ascribed to it in Section 9.2. 1.1.61 "Retail Facilities" shall mean those spaces located within structured parking facilities P1, P2, and P3 designated for commercial/retail use, as depicted in Exhibit B. 1.1.62 "Retail Interest" shall mean any sublease, license, concession or other agreement by which the MPA or any Person claiming under the MPA (including, without limitation, a Subtenant) demises, leases, subleases, licenses or sublicenses to or permits the use or occupancy by another Person of the Retail Facilities. 1.1.63 "Retail OEM" shall mean those Generally Reimbursable Expenses necessary for the operation and maintenance of the Retail Facilities after giving effect to Section 5.7. 1.1.64 "Retail Revenue" shall mean revenue collected by the Parties from Subtenants for the use of the Retail Facilities, excluding those amounts collected in addition thereto for the recovery of other building expenses (i.e., real estate taxes, insurance, maintenance, etc.). 1.1.65 "Revenue Bonds" shall mean those certain City of Miami, Florida Tax -Exempt Special Obligation Parking Revenue Bonds, Series 2010A and City of Miami, Florida Taxable Special Obligation Parking Revenue Bonds, Series 2010B. 1.1.66 "Revenue Bond Requirements" shall mean those requirements, restrictions, and covenants of the Revenue Bonds and the Bond Resolution. -6- Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities > Asset Management > Real Estate> Miami Ballpark Parking 1.1.67 "Revenue Control Device" shall mean any mechanical or electronic equipment installed for purposes of recording and controlling the entrances to, and exits from, the Parking Facilities, which equipment shall include, but not be limited to: loop detectors, treadles, gate arms, automated ticket dispensers and pay stations, cash registers, etc. 1.1.68 "Revenue Fund" shall have the meaning ascribed to it in Section 6.2. 1.1.69 "Risk Manager" shall mean the director of the Department of Risk Management of the City of Miami, Florida, or his/her designee. 1.1.70 "Stadium Operating Agreement" shall mean that certain Operating Agreement dated April 15, 2009 by and between the City, Miami -Dade County and Marlins Stadium Operator, LLC, a copy of which is available at the Office of the City Clerk, 3500 Pan American Drive, Miami, Florida. 1.1.71 "Stadium Operator" shall have the meaning ascribed to it in the City Parking Agreement. 1.1.72 "Statement of Use" shall mean a statement detailing those Combined Expenses paid by the MPA where the funding source used was, in whole or in part, Operating Reserve. Agreement. 1.1.73 "Structured Parking" shall mean the parking facilities PI, P2, P3, and P4. 1.1.74 "Subtenant" shall mean any Person with a Retail Interest. 1.1.75 "Surface Parking" shall mean the parking facilities E1, E2, E3, W1, W2, and W3. 1.1.76 "Team" shall have the meaning ascribed to it in the City Parking Agreement. 1.1.77 "Team Affiliate" shall have the meaning ascribed to it in the City Parking 1.1.78 "Term" shall have the meaning ascribed to it in Section 2.1. 1.1.79 "W1" shall mean the surface parking lot located at 1600 Northwest Seventh Street, Miami, Florida, and being more particularly described in Exhibit "A." 1.1.80 "W2" shall mean the surface parking lot located at 1610 Northwest Sixth Street, Miami, Florida, and being more particularly described in Exhibit "A." 1.1.81 "W3" shall mean the surface parking lot located at 1680 Northwest Fifth Street, Miami, Florida, and being more particularly described in Exhibit "A." 1.2 herein: Exhibits. The following Exhibits shall form a part of this Agreement and are incorporated Exhibit "A" The Property -7- Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities > Asset Management > Real Estate> Miami Ballpark Parking Exhibit "B" Exhibit "C" Exhibit "D" Exhibit "E" The Facilities City Insurance Requirements City Parking Agreement Parking Assignment Agreement ARTICLE II: TERM 2.1 Term. The initial term of this Agreement shall commence on the Effective Date, and shall terminate on the 30th day of September, 2031, unless sooner terminated pursuant to any applicable provision of this Agreement. The initial term, together with any renewal terms, shall be referred to individually and collectively as the "Term." 2.2 Options to Extend. The City, at its sole and exclusive option, may extend the Term of this Agreement for two (2) additional successive periods of ten (10) years each. The City shall exercise its option to extend the Term by delivering written notice of the same to the MPA no later than one hundred twenty (120) days prior to the expiration of the Term. 2.3 Termination. The City may terminate this Agreement, in whole or in part, with or without cause upon no less than ninety (90) days notification of termination in writing. 2.4 Partial Termination. In the case of a partial termination of any portion of the Property or provision of this Agreement, the terminated portion shall be eliminated from the effect of this Agreement; the remaining portion of the Property shall remain subject to the terms, conditions and privileges contained herein. ARTICLE III: THE PROPERTY 3.1 Title. The City represents and warrants that it is well seized of the Property, together with all buildings, improvements, facilities and fixtures, and has good title to it free and clear of liens and encumbrances having priority over this Agreement and that the City has full right and authority to enter into this Agreement. 3.2 Lease of Property. The City hereby leases to the MPA, and the MPA hereby leases from the City, subject to the terms and conditions of this Agreement, to have and to hold, the Property, tenements and hereditaments, with all of the rights, privileges and appurtenances, thereunto belonging and pertaining unto the MPA for the Term. 3.3 Right of Entry. The MPA shall permit the City and its employees, agents, representatives, and designees to enter the Property at all times reasonable upon advanced written notice for any proper purpose; provided, however, that the City's right under this Section 3.3 shall not unreasonably interfere with the operation of the Facilities. 3.3.1 Initial Construction. Notwithstanding Sections 3.2 and 3.3 above, the MPA acknowledges that as of the Effective Date, the City engages, by itself and through third -party representatives, in construction activities related to the larger Ballpark project ("Initial Construction"), and occupies certain portions of the Property, and the Facilities thereon. Until such time as the Property is not required for Initial Construction, the MPA's rights, as lessee, under this Agreement, for those portions so affected, shall be non- -8- Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities > Asset Management > Real Estate > Miami Ballpark Parking exclusive and shared with the City. Upon completion of Initial Construction, with written notice thereof, the MPA shall enjoy the exclusive right to the affected portions as provided under Section 3.2. 3.4 Uses. The MPA shall use the Property as authorized by this Agreement, and for no other purpose. The MPA shall not permit the Property to be used in any manner inconsistent with the restrictions of the City Parking Agreement or any applicable law. The use of the Property shall be further subject to Internal Revenue Code Requirements and Revenue Bond Requirements, where applicable. 3.5 Alterations. The City reserves the right, at any time it deems necessary, to lawfully alter or change the Property, upon the City giving notice to MPA no less than thirty (30) days prior to the proposed alterations. The MPA shall not alter, or cause to be altered, the Property in any way without having first received the written consent of the City Manager, which consent may be withheld or granted upon consultation with the District Commissioner. 3.6 Damage or Destruction. In the event the Property is damaged or otherwise destroyed due to the fault of the MPA or a Subtenant, the liable party shall: (i) immediately notify the City; and (ii) secure the Property in order to minimize injury to persons; and (iii) provide all insurance proceeds from any insurance policies carried by the liable party to the City. The City shall not be liable for any inconvenience or annoyance to the MPA, or other Subtenants, or for injury to a Subtenant's operations resulting in any way from damage, destruction or repair of the Property, unless caused by the gross negligence or willful misconduct of the City, its agents, representatives and employees. 3.7 Easements. The City agrees to grant such temporary non-exclusive easements in, over, upon, through and under the Property, as may be needed and requested by the MPA or Subtenants in connection with the development, construction, operation, maintenance and repair of the Property. The City Manager shall have the right to determine the location of all easements, and said easements shall be specifically authorized by a duly adopted resolution of the Miami City Commission where required by the City Charter or Code. 3.8 Hazardous Materials; Environmental Laws. The MPA hereby agrees that the MPA and its officers, directors, employees, representatives, agents, contractors, subcontractors, and any other users of the Property (collectively, "MPA Representatives") shall not use, generate, manufacture, refine, produce, process, store or dispose of, on, under or about the Property or transport to or from the Property in the future for the purpose of generating, manufacturing, refining, producing, storing, handling, transferring, processing or transporting Hazardous Materials, except in compliance with all applicable Hazardous Materials Laws. Furthermore, the MPA shall, at its own expense, procure, maintain in effect and comply with all conditions of any and all permits, licenses and other governmental and regulatory approvals required for the storage or use by the MPA or any of the MPA's Representatives of any Hazardous Materials on the Property, including without limitation, discharge of (appropriately treated) materials or wastes into or through any sanitary sewer serving the Property. Each party hereto (for purposes of this Paragraph, "Notifying Party") shall immediately notify the other party (the "Notice Recipient") in writing of: (a) any enforcement, clean up, removal or other govermnental or regulatory action instituted, contemplated or threatened concerning the Property pursuant to any Hazardous Materials Laws; (b) any claim made or threatened by any person against the Notifying Party or the Property relating to damage contribution, cost recovery, compensation, loss or injury resulting from or claimed to result from any Hazardous Materials on or about the Property; and (c) any reports made to any environmental agency -9- Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking arising out of or in connection with any Hazardous Materials in or removed from the Property including any complaints, notices, warnings or asserted violations in connection therewith, all upon receipt by the Notifying Party of actual knowledge of any of the foregoing matters. Notifying Party shall also supply to Notice Recipient as promptly as possible, and in any event within five (5) business days after Notifying Party first receives or sends the same, copies of all claims, reports, complaints, notices, warnings or asserted violations relating in any way to the Property or MPA Representatives use thereof. 3.9 Surrender. Upon the termination of this Agreement, the MPA shall peaceably and quietly leave, surrender and deliver to the City, the Property, together with any improvements, alterations, changes and additions made upon the Property. 3.10 Advertising; Signage. The MPA shall not permit the installation upon the Property, or the display from within the Property, any Signage, whether permanent or temporary, without having first received the written consent of the City Manager, which consent may be withheld or conditioned in his/her sole discretion. 3.10.1 Team Advertising. Notwithstanding the foregoing, the MPA shall permit on the Property, the display of Signage related to the advertising rights granted to the Team Affiliates pursuant to Section 6.6 of the City Parking Agreement. The MPA shall grant the Stadium Operator access to the Property for the installation and maintenance of such Signage, upon such reasonable terms and conditions, with the written consent of the City Manager. ARTICLE IV: PARKING FACILITIES 4.1 Operation. Except as may be otherwise required herein, the MPA agrees to operate, manage, direct, and supervise the use of the Parking Facilities pursuant to the Operating Standard as established in the City Parking Agreement at all times during the term thereof. It is understood and agreed by the Parties that the Parking Facilities are to be operated, to the fullest extent possible, as a fully automated facility. The MPA further agrees to utilize those Revenue Control Devices that will facilitate the achievement of a fully - automated Parking Facility. 4.1.1 Operating Hours. Subject to the scheduling priorities set forth in the City Parking Agreement, the MPA agrees to operate and make available to the public, the Parking Facilities, on a twenty- four (24) hour per day/seven (7) day per week basis. The City Manager, upon no objection from the Miami City Commission and upon not less than thirty (30) days prior written notice to the MPA, may alter the operating hours of any portion or all of the Parking Facilities, at any time, and for as many times, during the Term of this Agreement. 4.1.2 W3 Operations. The MPA acknowledges that W3 is conveyed as a parking lot and a baseball field. As such, W3 shall be operated for the dual purpose of serving as (1) event parking as may be required by Section 6.2(a) of the City Parking Agreement; and (2) an outdoor recreational facility during all other times for the use of the general public. The MPA shall establish reasonable operating hours for the use of W3 as a recreational facility, and the City Manager shall have the right, upon consultation with the District Comnnissioner, to adjust the W3 operating hours at any time, and for as many times, during the Term hereof. The MPA may recornrnend, and the City shall have the discretion to adopt, a schedule of fees to offset any cost of operation for the use of W3 as a recreational facility. Until such time as the MPA receives written notice -10- Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities > Asset Management > Real Estate> Miami Ballpark Parking from the City establishing a schedule of fees, a Person's use of W3, for the sole purpose as a recreational facility, shall be at no cost. 4.1.3 Surface Lot Alternative Use. During all such times the demand for parking does not require the use of a portion or all of the Surface Parking, except as may be otherwise required in this Agreement, the MPA agrees to allow Alternative Uses of the Surface Parking upon such terms and conditions as may be established by the City Manager. The MPA shall not permit any Alternative Use of the Surface Parking, without having first received the written approval of the City Manager, which approval may be withheld or conditioned upon consultation with the District Commissioner. For purposes of this Section 4.1.3, "Alternative Use" shall mean any lawful use of the Surface Parking, other than for the parking of vehicles, subject to Internal Revenue Code Requirements and Revenue Bond Requirements. 4.1.4 Private Drives. The Parties acknowledge that those certain portions of: (a) Northwest 15th Avenue; and (b) Northwest 6th Street being situated in Tract A of STADIUM PLAT, according to the plat thereof, as recorded in Plat Book 168, at Page 25, of the Public Records of Miami -Dade County, Florida; and (c) Northwest 15th Avenue; and (d) Northwest 4th Street being situated in Tract D of STADIUM PLAT, according to the plat thereof, as recorded in Plat Book 168, at Page 25, of the Public Records of Miami -Dade County, Florida, have been removed from the public right-of-way and are now private drives ("Private Drives"). As such, the operation and maintenance of the Private Drives shall be in similar fashion and in concert with the Facilities as a whole, subject to the operating requirements and scheduling priorities of this Agreement, the City Parking Agreement, or those requirements as may be prescribed from time to time by the City Manager. 4.1.5 Personnel. In addition to the minimum staffing levels established by the Operating Standard, the MPA agrees to employ, or cause to be employed, sufficient personnel to operate, maintain and secure the Parking Facilities pursuant to Sections 4.1 and 4.2 of this Agreement. Such personnel shall include, without limitation, custodial, maintenance, and security staff. The MPA shall submit, simultaneously with the Operating Budget, a list of necessary personnel for the subject Fiscal Year. The City Manager shall have the right to approve or modify said personnel list, in his/her sole discretion, prior to its submission to the Miami City Commission for final approval. 4.2 Maintenance; Repairs; Casualty. The MPA shall properly maintain the Parking Facilities, and shall perform routine preventative maintenance in such manner, and at such times, that rninirnizes any adverse effect on the use of the Parking Facilities. The MPA shall keep the Parking Facilities in a neat and clean condition at all times, free of odors, debris, and trash. In addition to preventative maintenance, the MPA shall promptly repair or restore equipment, fixtures and other components of the Parking Facilities as a result of wear and tear or casualty of any nature. 4.2.1 Maintenance Tasks; Schedule. The preventative maintenance shall include the following tasks: a) Cleaning and janitorial services; b) Grounds services including lawn, shrub and tree maintenance and removal of any rubbish or obstructions from the Parking Facilities; c) Interior and exterior window cleaning to be performed as needed but no less than once every one hundred twenty (120) days; -11- Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities > Asset Management > Real Estate> Miami Ballpark Parking d) Vermin control as necessary, but no less than once every sixty (60) days; and e) Painting of interior and exterior of buildings including caulking of all window and door frames, painting of signs, if applicable, and restriping of parking spaces in the Parking Facilities as necessary, but no less than once every four (4) years. 4.2.2 Wear Mitigation. The MPA covenants to mitigate wear on the Parking Facilities. Such wear mitigation shall include, without limitation, the operation of the Parking Facilities on an "on - demand" basis (i.e., only opening those Structured Parking and Surface Parking facilities necessary to satisfy fluctuating demand and user convenience) consistent with Section 4.1.1. 4.3 Parking Fees. Except for those rates established by, and collected on behalf of, the Stadium Operator pursuant to Section 6.2(b) of the City Parking Agreement, the MPA agrees to collect from all Persons for the use of the Parking Facilities, the Parking Fees, as established and approved by the City, pursuant to any ordinance currently existing and as amended or supplemented, or newly adopted, by the Miami City Commission. The MPA shall not permit the use of the Parking Facilities by any Person without having first collected the Parking Fee. 4.3.1 Fee Adjustments. The City, at its sole discretion, may adjust the Parking Fee at any time, and for as many times, during the Term of this Agreement. The MPA may submit to the City, and the City may (but shall not be obligated to) review, any proposed adjustments to the Parking Fee for consideration at least ninety (90) days prior to its proposed effective date. 4.3.2 Fee Collection. The MPA shall utilize all appropriate Revenue Control Devices to ensure the collection of all Parking Fees. The acceptable forms of payment shall be cash, check, or credit/debit/charge card. 4.3.3 Surcharges. The MPA shall collect, or cause to be collected, surcharges applied to the use of the Parking Facilities pursuant to applicable law. 4.3.4 Fee Management. All Parking Fees collected shall be managed pursuant to Article VI of this Agreement. 4.4 Priority Use. No provision of this Agreement shall be interpreted to impose a limit on the use of the Parking Facilities by the Stadium Operator, Team, Team Affiliates, Major League Baseball, other sponsors and promoters of events at the stadium, and their respective employees, guests, licensees and patrons, as the same is provided in Sections 6.1 and 6.2(a) of the City Parking Agreement. 4.5 Revenue Generation; Incentives. The City acknowledges that the MPA possesses certain revenue -generating experience in the operation of parking facilities, which experience may benefit the City. The City agrees to explore revenue -generating incentive programs to serve as compensation to the MPA for its efforts that result in an increase in revenues generated by the Parking Facilities. Such revenue -generating programs shall be subject to Internal Revenue Code Requirements and Revenue Bond Requirements. ARTICLE V: RETAIL FACILITIES - 12 - Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities > Asset Management > Real Estate> Miami Ballpark Parking 5.1 Purpose; Supplemental Revenue. The Parties agree that the Retail Facilities form an ancillary component of the Parking Facilities, and that the Retail Revenue is considered income supplemental to revenue derived from the operation of the Parking Facilities. The Parties further agree, however, that the Retail Facilities form an essential component of the larger Ballpark project, a joint effort of the City, Miami -Dade County, and the Team. 5.1.1 Retail Facility Development. The Parties acknowledge that the Ballpark will, by itself function as a destination and serve as a draw to its surrounding area, attracting visitors from beyond the limits of the South Florida region. As such, the operation of the Retail Facilities shall be in such a manner that is harmonious with the larger Ballpark project. The Parties intend for Retail Interests to be granted to Subtenants for the purpose of creating a 365-day/year-round retail and entertainment destination, open to the public, with 24-hour appeal. To further this intent, the Parties agree that the selection of Appropriate Subtenants necessary to create a cohesive mix of destination -type retail and entertainment establishments is vital for the successful development of the Retail Facilities, The Parties further acknowledge that the development of the Retail Facilities, as contemplated herein, will serve as an economic catalyst for the neighboring area, spurring growth opportunities for a larger mix of establishments to complement the Retail Facilities. 5.1.2 Subtenant Mix. The Parties agree that the Subtenant mix necessary to give effect to Section 5.1.1 shall include those Persons whose primary business model is similar to those establishments typically found near Major League Baseball ballparks and other major sports venues throughout the United States. The necessary Subtenant nix, as contemplated herein, shall further include those establishments typically found in the entertainment districts of similar large metropolitan areas (restaurants, bars, specialty stores), it being understood that said establishments do not include those which provide ordinary goods and services more commonly found in neighborhood shopping centers or other convenience locations. The Subtenant mix must reflect the cultural and ethnic diversity of the city of Miami with respect to ownership. 5.2 Subleases & Other Interests. The MPA is authorized to grant Retail Interests to any Subtenant, as approved pursuant to Section 5.3, at any time during the Term of this Agreement. All Retail Interests shall be subject to and subordinate to this Agreement, and the duration of any Retail Interest shall not exceed the Term of this Agreement. Except where the grant of a Retail Interest shall materially interfere with the MPA's obligation to operate the Parking Facilities under Article IV of this Agreement, the MPA covenants to grant Retail Interests, as approved by the City Manager, with dispatch; it being agreed that the generation of Retail Revenue shall not suffer any undue delay. 5.2.1 Non -Disturbance & Attormnent. The City agrees not to evict a Subtenant upon the cancelation or termination of this Agreement, provided that: a) the Subtenant's Retail Interest has been approved by the City Manager; b) the Subtenant is not in default under its Retail Interest; c) the Subtenant agrees to attorn to the City; and d) the City's acceptance of Subtenant's tenancy shall not impose on the City any obligations more onerous than those imposed by this Agreement or the pertinent Retail Interest. 5.3 Appropriate Subtenants. Retail Interests shall be granted solely to Appropriate Subtenants, subject to the written consent of the City Manager, it being acknowledged by the MPA that the City is -13- Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities > Asset Management > Real Estate> Miami Ballpark Parking contractually bound by certain restrictions contained in the City Parking Agreement, more specifically Sections 6.6(a) through (g). Additionally, prior to the City Manager granting consent of any Retail Interest, the City Manager, shall consult with the chief executive officer of the MPA and a designated member from a Local Business Advocacy Organization to ensure that the Subtenant mix reflects the goal expressed in Section 5.1.2 with respect to cultural and ethnic diversity. To aid in the selection of Appropriate Subtenants, the City further agrees to perform, or cause to be performed, all necessary credit, financial, and background investigations of Appropriate Subtenants prior to selection. For purposes of this Section 5.3, "Appropriate Subtenant" shall mean any Person with the necessary credit, financial, and experience/background history to operate harmoniously within the Retail Facilities as contemplated in Section 5.1.1, with a business model as contemplated in Section 5.1.2, and subject to the minimum requirements as established in Section 5.4, including without limitation, the return of Fair Market Value. The Parties acknowledge that the City possesses the requisite experience and resources to negotiate the terms and conditions of, and prepare the instruments necessary for, a Retail Interest as contemplated in this Article V. At all times during the Term hereof, the City shall use said resources, by itself or through any third -party it may select at its sole discretion, to aid in the negotiation and preparation of Retail Interests. 5.4 Retail Interests; Minimum Requirements. All Retail Interests shall be in writing, subject to the approval of the City Manager, and the City Attorney as to form and correctness, and contain (or provide for), among other terms, the following terms and conditions: 5.4.1 Fair Market Value. All Retail Interests shall include provisions in any and all forms necessary, guaranteeing rent payments in United States currency that provide for a return of not less than Fair Market Value. For purposes of this Section 5.4.1, "Fair Market Value" shall mean the value that similar properties would bring in a competitive and open market under all conditions requisite to an arm's-length transaction, the parties each acting prudently, knowledgeably, and assuming the established value is not affected by undue stimulus. Retail Interests shall be "net," with Subtenants being required to pay a pro-rata share of real estate taxes, building insurance, common -area maintenance costs, and any other cost incidental to and arising out of a Subtenants use of the Retail Facilities. 5.4.2 Award of Retail Interests; Conflicts of Interest. Subtenants shall be prohibited, and shall warrant its compliance thereof, from employing or retaining any Person employed by the Parties to solicit or secure a Retail Interest, and from offering to pay, pay, or agree to pay any Person employed by the Parties any fee, conrunission, percentage, brokerage fee, or gift of any kind contingent upon or resulting from the award of a Retail Interest. All Subtenants shall represent their awareness of, and covenant to compliance with, Article 5, Conflicts of Interest, of Chapter 2 of the Code of the City of Miami, Florida, as the same may be amended from time to time. 5.4.3 Security Deposits. Subtenants shall provide a deposit to serve as security for the payment of the Subtenants' obligations, covenants, and agreements contained in the Retail Interest. The Retail Interest shall further provide the Parties the right (but not the obligation) to apply all, or any portion of, the security deposit to cure a Subtenant's default, with the Subtenant being further obligated to restore the security deposit to the amount in effect prior to the default. 5.4.4 Restricted Uses. The use of the Retail Facilities shall comply with all restrictions contained in the City Parking Agreement, as well as any other restriction as may be established by the City. The Retail Interests shall further provide that all uses be in compliance with all applicable laws, -14- Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities > Asset Management > Real Estate > Miami Ballpark Parking 5.4.5 Games of Chance; Gambling Activities. If at any time during the Term hereof the operation of facilities for casino gambling activities, or other games of chance, shall be legalized within the corporate limits of the city of Miami, Florida, a Subtenant desiring to engage in such activity may seek all necessary regulatory approvals. All Subtenants must receive the written consent of the City, which consent may be withheld or conditioned at its sole discretion, prior to seeking regulatory approvals. Any proposal for the operation of casino gambling activities, or other games of chance, as contemplated in this Section 5.4.5 shall cause for the recalculation of the Fair Market Value then in effect to account for such additional activities ("Casino Adjustment"). The method or methods for determining the Casino Adjustment, which by way of illustration and not limitation may include an appraisal, shall be at the sole discretion of the City. 5.4.6 Notice of Interlocal. All Subtenants shall be made aware of this Agreement. Subtenants shall provide to the City's Contract Administrator, a written acknowledgement of its receipt of notice of this Agreement. 5.4.7 Insurance. Subtenants shall comply with any and all insurance requirements as may be established, and amended from time to time, by the Risk Manager. The Parties shall be included as additional insured on all insurance policies, and said policies shall provide notice of coverage, and the cancellation thereof, no later than thirty (30) days prior to the effective date of any change or cancelation. 5.4.8 Indemnification. Subtenants shall indemnify, defend and hold harmless the Parties and their officials, employees and agents from and against all claims, actions, damages, liabilities and expenses in connection with loss of life, personal injury or damage to property, or any other cause arising out of its Retail Interest (except to the extent caused by the Parties' gross negligence). The Subtenant shall acknowledge that as lawful consideration for the grant of any Retail Interest that a Subtenant, on behalf of itself, its employees, agents and invitees, release the Parties from any legal liability from any and all claims for injury, death or property damage resulting from Subtenant's occupation of the Retail Facilities. 5.4.9 Alterations. The City Manager shall be given the discretion, in consultation with the District Commissioner, to consent to any alteration to the Retail Facilities, including the discretion to make a distinction between minor alterations or major alterations and set specific conditions relating thereto. Any such consent given by the City Manager shall be in writing. Written consent as contemplated in this Section 5.4.9 may include express consent granted in a Retail Interest. The Subtenant shall be required to obtain all necessary permits/approvals as may be required by law. The Retail Interest shall further state that the City Manager's written consent shall not constitute an opinion or agreement by the City that the plans and specifications of the contemplated alterations are structurally sufficient or in compliance with any laws, codes or other applicable regulations. 5.4.10 Utilities. Subtenants shall pay, or cause to be paid, all proper charges, including connection and tapping fees, for the use of gas, electricity, light, heat, water, sewer, telephone, protective services and other communication services, and for all other public or private utility services which shall be used, rendered or supplied upon in connection with the Retail Facilities. The City shall not be responsible for the failure of any utility which did not result from its gross negligence or intentional wrongful acts. 5.4.11 Access to Retail Facilities. Subtenants shall permit appropriate City representatives access to the Retail Facilities at all reasonable times the City deems necessary for proper purposes. - 15- Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities > Asset Management> Real Estate> Miami Ballpark Parking 5.4.12 Hazardous Materials. No Person shall use, generate, manufacture, refine, produce, process, store or dispose of, on, under or about the Property or transport to or from the Property in the futurd for the purpose of generating, manufacturing, refining, producing, storing, handling, transferring, processing or transporting any Hazardous Material. 5.4.13 Liens and Encumbrances. No Subtenant shall encumber their Retail Interest by mortgage, deed of trust, or other instrument which constitutes, or any security interest given in connection therewith which together constitute, an encumbrance or lien upon the Subtenant's Retail Interest as security for any loan without having first obtained the written consent of the City Manager, which consent may be withheld or conditioned at his/her sole discretion. The City Manager shall have the right to review and approve all documents related to such encumbrances or liens. In no event shall such security interests encumber the City's fee simple title to the Property. A Subtenant shall immediately, and within thirty (30) days, discharge or cause to be discharged, any security interest that encumbers the City's fee simple title to the Property. 5.4.14 Audit Rights; Records Maintenance. All Subtenants shall be required to maintain records on -site and for a period of not less than three (3) years, and the City shall have the right to inspect such records at anytime during the term of the Retail Interest, and for a period of not less than three (3) years following the termination or cancelation of the Retail Interest. 5.4.15 Audited Reports of Gross Revenues. The MPA shall cause for Subtenants to furnish to the City, on an annual basis, an audited report of gross revenues actually received by the Subtenant derived directly from business operations located on or initiated at the subject Retail Facility prepared according to generally accepted auditing practices and certified by an independent certified public accountant. 5.4.16 Nondiscrimination. Subtenants, for themselves and on behalf of their contractors and subcontractors, shall agree that it shall not discriminate as to race, sex, color, religion, national origin, age, marital status or handicap in connection with its occupation of the Retail Facilities. 5.4.17 Executed Documents; Notices. The MPA shall deliver to the City's Contract Administrator, an original executed version of all Retail Interests, including any amendments and addenda thereto, no later than five (5) days following the execution thereof. All Retail Interests shall include the City as a carbon -copied notice recipient, with all such notices being delivered to City's Contract Administrator, at the address designated in Section 9.2. 5.5 Subtenant Default. A Subtenant's failure to comply with the terms and conditions of this Agreement, the City Parking Agreement, or its Retail Interest, and its failure to cure such noncompliance within a period not to exceed sixty (60) days after Receipt of notice thereof, shall be an event of default. In such event, the MPA shall exercise all remedies available to it in law and equity, which shall include without limitation, the immediate termination of the Retail Interest. 5.6 No Liability. In no event shall the Parties be liable or responsible for injury, loss or damage to the property, improvements, fixtures or equipment belonging to or rented by a Subtenant, its officers, agents, employees, contractors or subcontractors occurring in or about the Property that may be stolen, destroyed, or in any way damaged, including, without limitation, vandalism, theft, fire, flood, steam, -16- Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities > Asset Management > Real Estate> Miami Ballpark Parking electricity, gas, water or rain which may leak or flow from or into any part of the Property, or from hurricane or any act of God or any act of negligence of any user of the Property or any Person whomsoever whether such damage or injury results from conditions arising upon the Property or upon other portions of the Property or from other sources. Any liability of the Parties under a Retail Interest shall be subject to the limitations imposed by Section 768.28, Florida Statutes. 5.7 Operation. The City shall have the option to operate and maintain, or cause to be operated and maintained, the Retail Facilities. Until such time the City exercises this option, and upon providing the MPA written notice thereof, the MPA agrees to operate and maintain the Retail Facilities similar to Sections 4.1 and 4.2. 5.8 Agreement. Revenue Management. All Retail Revenue shall be managed pursuant to Article VI of this ARTICLE VI: REVENUE MANAGEMENT 6.1 Purpose; Intent. The Parties agree to utilize a uniform system of management for all revenues generated by the Facilities. The MPA acknowledges that the City has issued Revenue Bonds to finance its portion of the larger Ballpark project and to meet its contractual obligations with Miami -Dade County and the Team. Revenues and expenditures made pursuant to this Agreement shall be subject to all applicable Internal Revenue Code Requirements and Revenue Bond Requirements. 6.2 Special Revenue Fund. There shall be established, and maintained by the City, a special revenue fund to be known as the `Ballpark Parking Facilities Special Revenue Fund" ("Revenue Fund"), for the deposit of: (a) Gross Pledge Excess; (b) Parking Fees; (c) Advertising Fees; (d) Retail Revenues; (e) funds collected for the recovery of other building and operating costs; and (f) any other revenue derived from the operation of the Facilities and collected by the Parties. 6.2.1 Sole Source. The Revenue Fund shall serve as the sole source of funding for the Cornbined Expenses. Except as may be otherwise authorized herein, the Revenue Fund shall not be used for any other purpose without the prior written consent of the City. 6.2.2 Tiered Sourcing; Source Priority. Funds deposited into the Revenue Fund shall be categorized in either one of two levels: (a) "Level A," which shall include all Net Pledge Excess, Parking Fees, and any other revenue derived from the operation of the Facilities and collected by the Parties; or (b) "Level B," which shall include all Retail Revenues and Advertising Fees. 6.2.3 Insufficient Funds. During such times as the projected Level A and Level B revenues are insufficient to completely fund the budgeted Combined Expenses for a Fiscal Year, the Parties shall have the option to appropriate additional funds to the Revenue Fund, from such other sources as may be determined by the Parties at their sole discretion. The appropriation of additional funds pursuant to this Section 6.2.3 shall not be conditioned in any manner, and shall only be used according to the provisions of this Agreement. - 17- Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking 6.2.4 Excess Funds. The Parties agree that all amounts in excess of the Combined Expenses that remain in the Revenue Fund shall be held to the City's credit, and may be removed from the Revenue Fund at the City's sole discretion. 6.2.5 Bond Obligations. Notwithstanding any other provision to the contrary, the City shall have the right to use all funds on deposit in the Revenue Fund, in such amounts as it may determine necessary at its sole discretion, to satisfy any outstanding Debt Service. 6.3 Revenue Collection. Combined Revenues collected pursuant to this Agreement shall be delivered to the City at the following address: Department of Finance Attn: Treasury Management/Receipts 444 S.W. 2nd Avenue, 6th Floor Miami, FL 33130-1910 All checks shall be made payable to the "City of Miami." Any of the Combined Revenues that may be collected by the MPA shall be delivered to the City, or deposited in any account or accounts as may be designated by the City Manager, no later than 5:00 p.m. of the day immediately following receipt. The MPA shall further deliver to the City, at the above referenced address, any and all advices and documents pertaining, but not limited, to counterfeit money, dishonored checks, and deposit corrections and the like immediately upon receipt. 6.3.1 Other Fees Collected. The MPA is authorized to collect other fees on behalf of the Stadium Operator; such other fees to be collected and managed according the terms of the City Parking Agreement. The MPA covenants to maintain records of all transactions managed on the Stadium Operator's behalf, and to include in the Monthly Report all details related to such transactions. 6.3.2 Cash Losses. All cash losses, including cashier shortages and those arising from the criminal acts of MPA's employees, shall be the responsibility of the MPA and reimbursed to the City. 6.3.3 Income and Expense Statement. The MPA shall include in the Monthly Report an income and expense statement that shall tie to deposits and expenditures and shall identify each revenue/expense category by line item with a month- and year-to-date result. Such statements shall segregate the Parking Facilities from the Retail Facilities, and shall be further segregated as may be requested by the City Manager. 6.4 Operating Budget. No later than ninety (90) days prior to the commencement of any Fiscal Year, the MPA shall submit to the City's Contract Administrator a budget of Combined Expenses ("Operating Budget") to be included as part of the City's annual budget process. The Operating Budget shall be in such format, with such detail, and with such supporting documentation, necessary to afford the City with the unrestricted ability to verify the amounts contained therein. Prior to its submission to the Miami City Commission, the City Manager shall have the right to modify the Operating Budget, at his/her sole discretion. As part of the City's annual budget process, the final approval of the Operating Budget shall be at the sole discretion of the Miami City Commission. -18- Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities > Asset Management > Real Estate> Miami Ballpark Parking 6.4.1 Budget Preparation. The Operating Budget shall be based on the projected revenues of Level A and Level B funds. The Parties intend to solely use Level A funds for the Combined Expenses. To further this intent, the MPA covenants to make all efforts to avoid Funding Deficits, and that should a Funding Deficit occur, the MPA shall prepare in good faith, and the City agrees to consider, alternate Operating Budgets which may include, without limitation: (a) reductions in Combined Expenses; (b) a contribution of Level B funds; and (c) reductions to the annual Facility CTCI. 6.4.2 Initial Budget. The Parties will create an Operating Budget for Fiscal Year 2012 within a reasonable time following the Effective Date, it being agreed that the Parties will make all legislative actions and amendments to their respective annual budgets, as may be required to give effect to this Agreement. 6.4.3 Budget Amendments. The MPA may request, and the City may (but shall not be obligated to) approve, amendments to an approved Operating Budget at any time during, and for a period of not more than sixty (60) days following, the then current Fiscal Year. Such an amendment shall serve as an amendment to City's budget, as approved pursuant to Section 6.4. 6.4.4 Budget Increases. There shall be no "automatic" increase of Combined Expenses. For purposes of this Section 6.4.4, an increase is considered "automatic" when said increase is: (a) equal to, or greater than, three (3%) percent of the average annual expense for a period of five (5) Fiscal Years; and (b) is unaccompanied by supporting documentation justifying the increase. 6.5 Combined Expenses. The City shall reimburse to the MPA all Combined Expenses pursuant to the respective annual budgets approved by the City, as follows: 6.5.1 Reimbursable Expenses. All Combined Expenses reimbursed pursuant to this Agreement shall be Generally Reimbursable Expenses. For purposes of this Agreement, a "Generally Reimbursable Expense" shall include: (a) payroll wages and salaries; (b) federal, state and local payroll taxes; (c) licenses and fees as may be required by applicable law; (d) office supplies; (e) cleaning and custodial supplies; (f) Capital Improvements and other repair and maintenance of equipment not covered by warranties; (g) items purchased at the written request of the City Manager; (h) telecommunications services (excluding mobile communications); (i) audit costs, unless there is a discrepancy of three (3%) percent or more pursuant to Section 6.6.2; (j) insurance as may be required herein; and (k) any other expense as may be authorized in writing by the City Manager, pursuant to an approved Operating Budget. 6.5.2 Expense Invoices. The MPA shall provide, with the Monthly Report, an invoice indicating those actual Combined Expenses that have been paid by the MPA ("Expense Invoice"). The Expense Invoice shall be certified by a duly authorized employee of the MPA, whose identity shall be disclosed to the City's Contract Administrator prior to submission. Expense Invoices shall be accompanied with all such supporting documentation necessary to afford the City with the unrestricted ability to verify the amounts contained therein. The City reserves the right to use such means as may be appropriate to verify amounts claimed in Expense Invoices. Expense Invoices shall segregate the Parking Facilities from the Retail Facilities. 6.5.3 Reimbursement. Within thirty (30) days of Receipt of an Expense Invoice, the City shall reimburse to the MPA those Combined Expenses contained therein. -19- Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking 6.5.4 Invoices Disputed. Notwithstanding any other provision to the contrary, if any item of a Combined Expense is disputed or contested by the City, the City Manager shall submit to the MPA a statement, in writing, setting forth the items disputed with reasons therefor. The City shall not withhold reimbursement for all other expenses not disputed. The Parties shall, in good faith, diligently pursue clarification and resolution of any disputed expense within thirty (30) days of Receipt by the MPA of the written notice. The Parties covenant to exhaust the procedures set forth in this Section 6.5.4 before resorting to any other remedy. 6,5.5 Operating Reserve. Upon the full execution of this Agreement, and no later than the fifteenth (15th) day following the commencement of each Fiscal Year thereafter, the City shall provide to the MPA an amount equal to three (3) months of Combined Expenses pursuant to an approved Operating Budget for the then current Fiscal Year to serve as reserve funding for necessary operating expenses and maintenance costs ("Operating Reserve"). The use of Operating Reserve shall be in such amounts, and in conjunction with Expense Invoices, to ensure continuous operations throughout the Fiscal Year. The MPA shall immediately report the use of Operating Reserve on a Statement of Use to be delivered with the next scheduled Monthly Report. The allocation of Operating Reserve shall be exhausted prior to the end of each Fiscal Year. 6.6 Annual Audit. The MPA shall deliver or cause to be delivered to the City within ninety (90) days after the end of each Fiscal Year, an audited statement of all gross revenues and expenses, as well as a letter certifying compliance with the terms of this Agreement and a management letter resulting from review of operations, internal controls and personal observations. Such financial statement, compliance letter and management letter shall be prepared and attested to by an independent certified public accountant licensed in the state of Florida. The financial statement shall be prepared in accordance with generally accepted auditing practices and shall contain an unqualified opinion of the Combined Revenues and expenses as defined by this Agreement. 6.6.1 Additional Audits. The MPA shall deliver or cause to be delivered such additional audits as may be requested by the City from time to time, or as may be required to satisfy Internal Revenue Code Requirements and Revenue Bond Requirements, including the furnishing of audits of financial statements related to revenues and expenditures generated at the taxable and tax-exempt portions of the Facilities. For purposes of this Section 6.6.1, the taxable portion shall refer to that portion of the Facilities financed by those Revenue Bonds considered taxable, and the tax-exempt portion shall refer to that portion of the Facilities financed by those Revenue Bonds considered tax-exempt. 6.6.2 Audit Discrepancies. An audit discrepancy shall occur where an audit, performed pursuant to Section 6.5, discloses a discrepancy greater than or equal to three (3%) percent of the aggregate approved Operating Budget for the Fiscal Year audited. An audit which discloses such a discrepancy shall not be a Generally Reimbursable Expense. ARTICLE VII: CAPITAL IMPROVEMENTS 7.1 Purpose. The Parties agree and understand that the expenditure of funds for the continued maintenance and improvement of the Facilities is a necessary and proper use of all revenues collected. The Parties further agree that the prudent use of revenue toward continuous Capital Improvements is necessary for -20- Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking the protection of the Facilities and its ability to (a) generate additional revenue; (b) satisfy Revenue Bond Requirements; and (c) satisfy other contractual obligations. 7.2 Capital Improvements Plan. The MPA shall, on an annual basis and no later than ninety (90) days prior to the commencement of any Fiscal Year, prepare a plan, for the City Manager's approval, of necessary Capital Improvements ("Capital Improvements Plan"). Without limiting the generality of the foregoing, Capital Improvements shall include lot resurfacing, structural repairs, the replacement of major equipment, and major painting projects. The Capital Improvements Plan shall include a list of scheduled major improvements, as determined by the average useful -life of those improvements then existing. 7.3 Annual Contribution. The City agrees to appropriate, annually, a contribution toward Facility Capital Improvements ("Facility CTCI"). Funding as provided in this Section 7.3 is contingent on the availability of funds and continued authorization of the Capital Improvements Plan and other related activities contemplated in this Article VII. 7.4 Annual Budget. The MPA shall prepare and submit, simultaneously with the Capital Improvements Plan, a budget of necessary expenditures for Capital Improvements to be made in a Fiscal Year pursuant to the Capital Improvements Plan, to be included as part of the City's annual budget process. The annual Capital Improvements budget shall be in such format, with such detail, and with such supporting documentation, necessary to afford the City with the unrestricted ability to verify the amounts contained therein. Prior to its submission to the Miami City Commission, the City Manager shall have the right to modify the budget, at his/her sole discretion. As part of the City's annual budget process, the final approval of the budget shall be at the sole discretion of the Miami City Commission. 7.5 Performance. The MPA covenants to make, or cause to be made, Capital Improvements as listed in the approved Capital Improvements Plan. 7.5.1 Emergency Improvements. Notwithstanding the requirements of Sections 7.2 and 7.4, the MPA shall make, or cause to be made, any Capital Improvement that must be completed immediately and not listed in the Capital Improvements Plan to: (a) comply with a government -issued notice of violation or similar order; (b) protect public safety and welfare; (c) prevent unnecessary expense that would otherwise occur if the repair was not conducted immediately; or (d) ensure all necessary systems for the operation of the Facilities are functioning ("Emergency Improvements"). 7.6 Title to Improvements. All alterations, improvements, changes and additions made to or with respect to the Facilities in accordance with this Article VII shall remain upon and deemed to constitute a part of the Property, and the City shall have legal ownership of and legal title to all such alterations, improvements, changes and additions. ARTICLE VIII: INSURANCE 8.1 Insurance Requirements. The Parties agree to maintain the following insurance: 8.1.1 Property Insurance. The City shall maintain a property insurance policy for the Facilities with such form and coverage limits as may be determined by the Risk Manager. -21- Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities > Asset Management > Real Estate> Miami Ballpark Parking 8.1.2 Liability Insurance. During all times throughout the term, or terms, of the City Parking Agreement, the MPA shall maintain insurance policies of the types and amounts listed, excluding property insurance, in Exhibit "D-2" of the City Parking Agreement. At all other times, during the Term hereof, the MPA shall maintain such insurance coverage as set forth in Exhibit "C," attached hereto. and made a part hereof. All such insurance, including renewals, shall be subject to the approval of the Risk Manager (which approval shall not be unreasonably withheld) for adequacy of protection and evidence of such coverage shall be furnished to the City on Certificates of Insurance indicating such insurance to be in force and effect and providing that it will not be canceled during the Term hereof without thirty (30) calendar days prior written notice to the City. Completed Certificates of Insurance shall be filed with the City simultaneously with the execution of this Agreement, provided, however, that the MPA shall at any time upon request by the City Manager, Risk Manager, or the City's Contract Administrator, file duplicate copies of the policies of such insurance with the City. 8.1.3 Insurance Proceeds. All insurance proceeds shall be paid and delivered to the City. ARTICLE IX: ADMINISTRATION 9.1 Contract Administration. The Parties shall each designate for themselves a representative for the prompt and efficient administration of this Agreement ("Contract Administrators"). Until such time as the City Manager designates otherwise, the director for the Department of Public Facilities of the City of Miami, Florida, or its successor department, shall serve as the City's Contract Administrator. 9.2 Notices. All notices or other communications which shall or may be given pursuant to this Agreement shall be in writing and shall be delivered by personal service, or by certified mail, addressed to the party at the address indicated herein or as the same may be changed from time to time. Such notice shall be deemed given on the day on which personally served, or, if by mail, on the fifth (5th) day after being posted, or the date of actual receipt or refusal of delivery, whichever is earlier ("Receipt"). To the City: City of Miami, Florida Office of the City Manager 444 S.W. 2nd Avenue, loth Floor Miami, FL 33130-1910 Attn: City Manager With copy to: Department of Public Facilities 444 S.W. 2nd Avenue, 3rd Floor Miami, FL 33130-1910 Attn: Director To the MPA: Department of Off -Street Parking 40 N.W. 3rd Street, Suite 1103 Miarni, FL 33128-1848 Attn: Chief Executive Officer With copy to: - 22 - Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities > Asset Management > Real Estate> Miami Ballpark Parking Office of the City Attorney 444 S.W. 2nd Avenue, 9th Floor Miami, FL 33130-1910 Attn: City Attorney Office of the City Attorney 444 S.W. 2nd Avenue, 9th Floor Miami, FL 33130-1910 Attn: General Counsel Notwithstanding the foregoing, periodic and ordinary course notices, deliveries and communications between the Parties may be given (and shall be considered given when provided) by any of the means set forth above, and to the address or addresses provided by the City Manager to the MPA from time to time. 9.3 Meetings. The Parties shall meet at mutually agreeable times and places to discuss performance and expectations under this Agreement. Meetings shall occur on a monthly -basis, with participation by the Contract Administrators. 9.4 Monthly Reports. The MPA shall prepare and deliver to the City's Contract Administrator, no later than the twentieth (20th) day of each calendar month during the Term, a report summarizing all activity at the Facilities for the month immediately preceding, in a form and format to be approved by the City Manager ("Monthly Report"). Monthly Reports shall be signed by the preparer and the MPA's Contract Administrator. The MPA covenants to reconcile any discrepancy in any Monthly Report within five (5) business days of discovery of the discrepancy. 9.5 Records Maintenance; Rights to Audit. At any time during the Term of this Agreement and for a period of three (3) years thereafter, the MPA shall maintain and the City shall have the right to audit, examine, review and copy all records relating to operations under this Agreement. 9.6 Disputes. MPA hereby acknowledges that the City's Contract Administrator will determine in the first instance all questions of any nature whatsoever arising out of, under, or in connection with, or in any way related to or on account of, this Agreement, including without limitation: questions as to the value, acceptability and fitness of the MPA's performance; questions as to either Party's fulfillment of its obligations hereunder; negligence, fraud or misrepresentation before or subsequent to execution of this Agreement; questions as to the interpretation of the requirements of this Agreement; and claims for damages, compensation and losses. MPA covenants to exhaust the procedures set forth in this Section 9.6 before resorting to any other remedy. 9.6.1 Prompt Performance. The MPA shall be bound by all determinations or orders and shall promptly obey and follow every order of the City's Contract Administrator, including the withdrawal or modification of any previous order. Where orders are given orally, these orders will be issued in writing by the City's Contract Administrator as soon thereafter as is practicable. 9.6.2 Right to Dispute. In the event that the Contract Administrators are unable to resolve their differences concerning any determination made by the City's Contract Administrator, or any dispute, question, or claim arising under or relating to this Agreement, either Contract Administrator may initiate a dispute in accordance with the procedure set forth in this Article. 9.6.3 Dispute Resolution. The Parties authorize an arbitration panel consisting of (1) the City Manager, (2) the chief executive officer of the MPA, and (3) a third -party mutually agreeable to the Parties, to decide all questions, disputes, or claims of any nature arising out of, under, or in connection with, or -23- Miami Ballpark Parking Facilities Inte1ocal Cooperation & Lease Agreement Public Facilities > Asset Management > Real Estate> Miami Ballpark Parking in any way related to or on account of this Agreement (including but not limited to claims in the nature of breach of contract, fraud or misrepresentation arising either before or subsequent to execution hereof) (collectively, "questions" or "disputes"), pursuant to the procedures set forth in this Section 9.6. 9.6.4 Findings Conclusive. Pending final decision of a dispute hereunder, the MPA shall proceed diligently with the performance of the Agreement and in accordance with the City's Contract Administrator's interpretation. MPA agrees that the final decision of the arbitration on an issue of fact shall be final and conclusive unless arbitrary, capricious, fraudulent or clearly erroneous. 9.6.5 Option to Resolve. The City Manager may, at his or her option, for any particular dispute, elect to forgo the dispute resolution procedures herein and allow the dispute to be otherwise resolved in accordance with law. ARTICLE X: WARRANTIES AND REPRESENTATIONS 10.1 MPA's Representations. The MPA makes the following representations to the City: (a) The MPA is duly organized and validly existing under the laws of the State of Florida and has full power and capacity to carry on its business as presently conducted, and to perform its obligations under this Agreement. (b) The MPA's execution, delivery and performance of this Agreement have been duly authorized by all necessary legal actions and does not and shall not conflict with or constitute a default under any indenture, agreement or instrument to which the MPA is a party or by which the MPA may be bound or affected, except for such approvals required by this Agreement. (c) This Agreement constitutes the valid and binding obligation of the MPA, enforceable against the MPA and its successors and assigns, in accordance with their respective terms, subject to bankruptcy, insolvency and other similar laws affecting the rights of creditors generally. ARTICLE XI: MISCELLANEOUS 11.1 Recitals. The Recitals to this Agreement are true and correct, and are incorporated herein by reference and made a part hereof. 11.2 Entire Agreement. This instrument constitutes the sole and only agreement of the Parties, and correctly sets forth the rights, duties, and obligations of the Parties. There are no collateral or oral agreements or understandings between the Parties relating to the Agreement. Any promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. This Agreement shall not be modified in any manner except by an instrument in writing executed by the Parties. 11.3 Recognition of Existing Agreements. The Parties recognize 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 Agreement and the - 24 - Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Assct Managcment> Real Estate> Miami Ballpark Parking documents governing same are hereby incorporated by reference and shall govern, if any provision of this Agreement is in conflict therewith. 11.4 Assignment. MPA shall not assign, transfer, pledge, hypothecate, surrender, or otherwise encumber or dispose of any of its rights or obligations under the resulting agreement, or any interest in any portion of same, without the prior written consent of the City, which consent may be withheld by the City for any reason it determines to be in its best interest. 11.5 Amendment. No amendment to this Agreement shall be binding on either Party, unless in writing and signed by the Parties. 11.6 Successors. This Agreement shall be binding upon the Parties hereto, and their respective heirs, executors, legal representatives, successors, and assigns. 11.7 Governing Law; Severability. This Agreement, and all matters relating to it shall be governed by the laws, rules and regulations of the State of Florida and Miami -Dade County, as are now in effect or as may be later amended or modified, without reference to the choice of law rules of any state. Should any provision contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida, then such provision shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable to conform with such laws, that same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect. MPA acknowledges that the City, as a public entity, is subject to Florida's public records laws, which makes all materials communicated to or from the City pursuant to this Agreement subject to disclosure under such laws unless specifically exempted from disclosure or made confidential. 11.8 Venue. All disputes arising out of this Agreement shall be subject to the exclusive jurisdiction and venue of the state or federal courts located in Miami -Dade county, Florida, and the Parties consent to the exclusive personal jurisdiction and venue of these courts. 11.9 Independent Contractors. MPA is performing the acts under this Agreement as an independent contractor and not as an employee, agent, partner, or joint venturer of the City. It is understood and agreed that each Party, together with its agents, servants, and employees, is at all times acting as an independent contractor, and that neither has any express or implied authority to assume or create any obligation or responsibility on behalf of, or in the name of, the other party. MPA shall satisfy all tax and other governmentally imposed responsibilities with regard to its own personnel, including, but not limited to, payment of social security taxes, workers' compensation, self-employment taxes, and all other payroll taxes. 11.10 Force Majeure. Each Party shall be excused for failures and delays in performance caused by war, governmental proclamation, ordinances, regulations, strikes, lockouts, explosions, supplier delays, hurricanes or other events beyond the reasonable control and without the fault of such Party. In the event of any such Force Majeure, this Agreement shall be extended for the period during which either Party is prevented from performing any material portion of this Agreement. This section shall not, however, relieve any Party from using reasonable efforts to remove or avoid any such events, and any Party so affected shall continue performance hereunder as soon as reasonably practicable whenever such causes are eliminated. Any Party claiming any such excuse for failure or delay in performance shall give notice thereof to the other Party. -25- Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities > Asset Management > Real Estate> Miami Ballpark Parking 11.11 Non -Discrimination. In connection with the performance of work under this Agreement, the Parties agree not to refuse to hire, discharge, promote or demote, or to discriminate in matters of compensation, against any person otherwise qualified on the basis of race, color, religion, nation origin, gender, age, militaiy status, sexual orientation, marital status or physical or mental disability; and further agree to insert the foregoing provision in all subcontracts related to the performance of this Agreement. 11.12 Judicial Interpretation. Should the provisions of this Agreement require judicial or arbitral interpretation, it is agreed that the judicial or arbitral body interpreting or construing the same shall not apply the assumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that an instrument is to be construed more strictly against the party which itself or through its agents prepared same, it being agreed that the agents of both parties have equally participated in the preparation of this Agreement. 11.13 Captions; Headings; Sections. The captions and headings in this Agreement are for convenience only and are not a part of this Agreement and do not in any way define, limit, describe or amplify the terms and provisions of this Agreement or the scope or intent thereof. Reference to one section shall include all subsections (i.e. Section 1.4 shall include Sections 1.4.x, 1.4.x.y, etc.), and vice versa, and shall be read as a whole. 11.14 Conflicting Terms. Except for those terms contained in the City Parking Agreement, in the event of conflict between the terms of this Agreement and any terms or conditions contained in any attached documents, the terms of this Agreement shall govern. 11.15 Waiver. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. 11.16 Third -Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to (a) confer upon any Person, other than the expressed Parties herein, any rights or remedies under or by reason of this Agreement as a third -party beneficiary, or otherwise; or (b) authorize anyone not a party to this Agreement to maintain an action pursuant to or based upon this Agreement. 11.17 Time of Essence. Time shall be deemed of the essence on the part of the Parties in performing all of the terms and conditions of this Agreement. [SIGNATURES APPEAR ON FOLLOWING PAGE] - 26 - Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities > Asset Management > Real Estate> Miami Ballpark Parking IN WITNESS WHEREOF, in consideration of the mutual entry into this Agreement, for other good and valuable consideration, and intending to be legally bound, the Parties have executed this Agreement as of the date first above written. DEPARTMENT OF OFF-STREET PARKING of the City of Miami, an agency and instrumentality of the City of Miami, Florida ("MPA") ATTEST: By: By: Arthur Noriega, V Chief Executive Officer ATTEST: CITY OF MIAMI, FLORIDA, a municipal corporation of the state of Florida ("City") By: By: Priscilla A. Thompson Johnny Martinez, P.E. City Clerk City Manager APPROVED AS TO INSURANCE APPROVED AS TO LEGAL FORM AND REQUIREMENTS: CORRECTNESS: By: By: Calvin Ellis Julie O. Bru, Esq. Risk Manager City Attorney - 27 - Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking EXHIBIT "A" The Property 1. North Structured Parking (P1 and P2): Tract A of STADIUM PLAT, according to the plat thereof, as recorded in Plat Book 168, at page 25 of the Public Records of Miami -Dade County, Florida. AND Lots 3 and 4, Block 34 of LAWRENCE ESTATE LAND CO'S SUBDIVISION, less the North 10 feet thereof for road right of way purposes, according to the plat thereof, as recorded in Plat Book 2, at page 46 of the Public Records of Miami -Dade County, Florida. 2. South Structured Parking (P3 and P4): Tract D of STADIUM PLAT, according to the plat thereof, as recorded in Plat Book 168, at page 25 of the Public Records of Miami -Dade County, Florida. 3. West Surface Parking (W 1): Lots 1 through 4, less the North 10 feet thereof, Lots 5, 6, 13 and 14, less right of way for N.W. 17th Avenue, and all of Lots 15 through 18, Block 35 of LAWRENCE ESTATE LAND CO'S SUBDIVISION, according to the plat thereof, as recorded in Plat Book 2, at page 46 of the Public Records of Miami -Dade County, Florida. 4. West Surface Parking (W2): Lots 1 through 3 and Lots 16 through 18, Block 36 of LAWRENCE ESTATE LAND CO'S SUBDIVISION, according to the plat thereof, as recorded in Plat Book 2, at page 46 of the Public Records of Miami -Dade County, Florida. 5. West Surface Parking (W3): Lots 1 through 18, less right of way for N.W. 17th Avenue, Block 45 of LAWRENCE ESTATE LAND CO'S SUBDIVISION, according to the plat thereof, as recorded in Plat Book 2, at page 46 of the Public Records of Miami -Dade County, Florida. 6. East Surface Parking (El): Lots 8 through 13, Block 39 of LAWRENCE ESTATE LAND CO'S SUBDIVISION, according to the plat thereof, as recorded in Plat Book 2, at page 46 of the Public Records of Miami -Dade County, Florida. 7. East Surface Parking (E2): Lots 9 through 12, Block 42 of LAWRENCE ESTATE LAND CO'S SUBDIVISION, according to the plat thereof, as recorded in Plat Book 2, at page 46 of the Public Records of Miami -Dade County, Florida. 8. East Surface Parking (E3): Exhibit A/Page 1 of 2 Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking Lots 5 through 8, and the North 100 feet of Lots 9 and 10, Block 49 of LAWRENCE ESTATE LAND CO'S SUBDIVISION, according to the plat thereof, as recorded in Plat Book 2, at page 46 of the Public Records of Mianu-Dade County, Florida. Exhibit A/Page 2 of 2 Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking EXHIBIT "B" The Facilities _.....,...._ ... ;"SURFACE LOT W-1 ._. —,, 1600 NW TTH ST OVERALL SITE PLAN NW 7711 ST � I p♦� p --•iJ' V 1 I upurn...— PARKING GARAGE P1 1502 NW 7TH STREET PARKING GARAGE P2 1402 NW 7TH STREET PARKING GARAGE P3 1502 NW4TH STREET PARKING GARAGE P4 1402 NW 4TH STREET `"/7777-irir kiwi/ rr17riTritTrirtrrniil'1111 f111111 fl1 rrrrI s ! � SURFACE LOT E-1 1380 NW 6TH ST • »A. SURFACE LOTE-2— SURFACE LOT E3'"""" 11350NW4TH ST STADIUM SITE PARKING CITY OF MIAMI f3-30648 LEDA DALY Florid:, R �'M;�n ,°A<I,!*0, *R 0014416 i rvI04?N m.oin 0n A0.01 F!!!°;!:;1•Eic,1!FEr.1-7-1`,\ NW 7TM STREET 11.18211.JNE . I I. ' • -•••-- • -.••_...... -•.... . —••• I: II I . ; , I I---'' - 77,', \ •13.•': • I l'i I ;It 4 r• I,. • , • ii i 6586.1.58 • ; • , Ili, ,'I,;•;, : t..,:f. q II c.1 iii „,-............,1! d! , . ! ;.• t ! : II, 1 i tl il 'IP J •65 11.- ,,........,............8*4 I' 4 ' : I ' ; ; •‘;;"7. •;.: .1 ., _ ;-•-.". ; 41 II ':• 8 , 1 ; _ -1 •,),,1 • • • • • • . '• 7 11, 1', ,., „, _•,-,-..,•, mf.,:fzvr — • 1— 11 .'`.1, ii! • : I I I • . i cmc c 1 , ! WI ' = i, 11 t II • .-7,!!?,;,.- , ! > ! -i!clz 3.1 :—......i.., M 0 X 74 M , M Z ii 1............, 11 : • - , . ; • • • : • 0 : F.--=—•—'1--- 1 0 1 8; I ill 1 1 i . 1 I... 0 I I : I i .. ' I I' ---: . II 4 I i IIIJII L, 4 I Ls, • • , NW 6TH STREET 0 lo/ o r.,,, ,,___,_.,, o7-5 0f,„__.4 r•• -1'1.---7-- . , • \ „ _ ,..„ ,„.. ---•- , '.„, ‘,,,1,..., 1, . . 1 1 ..• 1 1 LI 1---=,---,•=1 1 ' ; - W,i;;;•(.:!!7.7.=.,..7.!:=.7,,,,,,,,iFil-..JiliEfIA \ \ ccc.fic.....7 rnENIARGEDSREPIAN-PIPARKINGGARAGE N .„.:, sac: c8c.c '••••:«I• STADIUM SITE PARKING CITY OF MIAMI B-30648 LEDA DAY !. FROVIDE FLOOD CARRIER WATERCROOFING 555786 MC 1221.10,6LE FLOOD BARRIER 1681625.62 OCCUPIABLE SPACES MC 2.85.55 IMICATED THAT 0,2E88.026 2058 /.5.5 P1 PARKING STALL TABULATION 51,51131.82 HANDICA8 'NOCE:810LE ACCESSIEILE FEV 8555.5,5 14181.1 15 51 2E8E12 222 2C LEVEL.: 247 257 235 255 LEVEL 5 TOT/. 292 15 554 2Z1: 165 f,c FIG GOMM DISICN 8.1.08:2555.86225,8252, 258151085 FrL ROC PERMIT SET 18. Nicjicr.liunt 885 26.181,chltrct 00:6-1.15 I5I8858 8.8880 SITE ?UN 681.1. A0.02 S.3... i • BARRIER WATS. - \ . \ PROOFING...sm. \ ‘,, UNTIT,7.; NW 7TH STREET INDICATES FL= ii • , . r , ,.. q.. .,•,.,----r,'","„t.- ,D • , „, . , ..••' • 1 1 IT i g... II : ' 11 11 fler0VP.In ,....r.un. ., J , • i• . ' . - —1.•44—, 1' """'''" 1 1I '=0: —,—> t,11I Z 4 (i = ad 1 4i. „o 4 4 __;_il _t____t_ _t_ • . . .__ • , f N a -t- o kit < _A_/1/77// . 77N11 11: 1 , 1 • Ivy. 4., 1 1 m . a • 0 C. Itt m %).' t 1 C:j1 : o= .• ! 1. ii 1 11 I Ei Iv, i ,,,,.. _,.. __. .....„ ..,_ __ al 1 oji ei i olio/. ,..7! ,.: . { . . •.• • • .• ••• • • NW 6TH STREET " • , • 77T. FILE tOG . 0 • 'G.. 11 I e2.•••••':-.• •••-..„,,, 11; 7:1.11 EN411.ffG:EDIISITEl:LAN' -P2PARI1N GGARAGiE"4 11 1•••-••-•: 1(1 11 5.74, STADIUM SITE PARKING CITY OF MIAMI G-30648 FL 1,1,3 LEDADALY REVISIONS PROVIDE FLOOO OAR.. WATERPROOFING:SYSTEM AND REMOVABLE FLOOD BARRIER PANELS AT firPIABLE SPACES AND. AREAS CATED AT:AS SELOPV.ONE AG, P2 PARKING STALL TABULATION KANDICAP STANDARD ACCESSIBLE ACCr.EIPI'SLE TOTALS LEVEL 1 43 14S LeVEL 3G0 21 321 LEVEL 3 331 LEVEL 4 327 327 LEVEL S 249 249 12. 134 PERMIT SET 13.5M Nicilo...int Florida R4pIalered Archltrct AR 00144-13 !WIC, Ntr.t tliTtt ENLARGED .5t1I100.11,V1.1tItIG CARACE A0.03 ENV),11, PARAINOC.AM • ' i I :'oeut,Triwtwrolit-Inn n-tut Aattms 1 i!, ; .!•;, ! 1; IL......, ...: ..._!. .... , '•'..i...• 4.00- — .. ....... ._ __ __ ...... .. .._ ...... _ .. . .. _... ._... .... __ ..... ._ .____ _ NW 3RD ST . 0 :.,-...-..........-....,..,.,-: ..=:= -.,.:„F„..--...,......--,-.........,...i.„.........„,,,,.....-.-,._H:J.,„:5,,....:,-,...,--,,,....:;,,, ! .. : Afw4r 17-17.7. -- `, s:•,/^N I ' ' "--1:-""' i- 0- -;b:-.• :O -1 o--1--;;e:-.-le. . . . . . , • : : 1 1 ! i \ o o 014" A124TeatcrA250190,;#022rX24014W Adrer429re2Mar rAram -d- totAtamc PRO,. FLOOD OARRIER WATERPROOFING SYST. AND REMOVABLE FLOOD BARRIER PAWLS, OCCUPIABLE SPACES AND IN AlttFiS INDICATED THAT ARE BELOW ZONE AE-9 • 1 , r-c,ENLARGEDSITEPLAN-P3 PARING GARAGE P3 PARKING STALL TABULATION STANDARD HANDICAP AGCESSIBIZ ACCESSW'IBLE 18 1-1 39 2.7 LEVEL 9 207 247 LEVEL S 238 LEVEL 6 169 TOTALS 1128 SICYCLE SPACES 110 FUTLIRE SPACES 11 STADIUM SITE 11 PARKING CITY OF MIAMI B-30648 LEDA DAIY FILE t OG PERMIT SET L... Mei icar-Kint Florida RegiAcred Archlkea Att 0013116 Croiect Int,LtAnv InttArto ft-, ARCM sin nAtteAtuttt CAVI(.3 A0.04 EXHIBIT "C" City Insurance Requirements I. Commercial General Liability A. Limits of Liability: Bodily injury and property damage liability Each Occurrence $1,000,000 General Aggregate Limit $2,000,000 Personal and Advertising Injury $1,000,000 Products/Completed Operations $1,000,000 B. Endorsements Required: (1) City of Miami included as additional insured (2) Primary Insurance Clause Endorsement (3) Contingent and Contractual Liability (4) Premises and Operations Liability II. Business Automobile Liability A. Limits of Liability: Bodily injury and property damage liability Combined Single Limit Any Auto, Owned or Scheduled Autos Including Hired, Borrowed or Non -Owned Autos Any One Accident $1,000,000 B, Endorsements Required: (1) City of Miami included as additional insured III. Worker's Compensation A. Limits of Liability: Statutory -State of Florida Waiver of Subrogation 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 employee $1,000,000 for bodily injury caused by disease, policy limit IV. Umbrella Policy/Excess Liability (Excess Follow Forin) A. Limits of Liability Bodily injury and property damage liability Each Occurrence $5,000,000 Aggregate $5,000,000 B. Endorsements Required: (1) City of Miami included as additional insured Exhibit C/Page 1 of 2 Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking V. Garage Keepers Legal Liability A. Limits of Liability $2,000,000 B. Endorsements Required: (1) City of Miami included as additional insured VI. Crime Coverage A. Limits of Liability B. Endorsements Required: (1) City of Miami listed as loss payee $1,000,000 The above policies shall provide the City with written notice of cancelation or material change from the insurer in accordance to policy provisions. 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 V" 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. Exhibit C/Page 2 of 2 Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking EXHIBIT "D" City Parking Agreement 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 "Stadiurn• • Operator"), and solely for the purposes of the County Provisions (as defined in Article I), Miami - Dade County,, a political., sub.diyisi: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 forward to design, develop, construct and operate a Major League Baseball stadium and related parking facilities to be located on the Entire Site. (Capitalized terms 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 Stadiurn 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 I DEFINED TERMS As used in this Agreement, the following terms have the foil owing 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 night to exercise more than fifty percent (50%) of the voting power of the other Person.• "Applicable Law" means any applicable law, statute, code, ordinance, administrative order, charter, resolution, order, rule, regulation, judgment, decree, writ, injunction, franchise, permit or license, of any Governmental Authority having jurisdiction with respect to the Parking 1 Premises or to Persons or activities within the Parking Premises, now existing or hereafter 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 guidelines among Major League Baseball clubs and Major League Baseball; and (ii) any present and future mandates, rules, regulations, policies, interpretations, bulletins or directives issued or adopted by Major League Baseball applicable to Major League Baseball Clubs generally. "Baseball Stadium" means the 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 clay other than a Business Day, such period shall be extended to and through the next succeeding Business Day. "Casualty" is defined in Section 5.d(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 terms 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. 2 "Construction. Administration Agreement" 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 1 and II; Section 3.3; and Articles IV„ VIII, IX , X and XI. • "County'Representative" 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 10.2. "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, terrorism, or any Other cause in eacli case (including the events specified above) beyond the- reasonable -control and without the fault of the Party claiming an excuse from performance; provided, however, that any Force Majeure involving or relating to County or City governmental restrictions or acts or failures to act of any County or City agency or entity shall not relieve the County or City, as the, • case may be, of their obligations under this Agreement unless the failure to act is as a result of another Force Majeure event beyond the reasonable control and without the fault of the Party claiming an excuse from performance. "Government Indemnitee" is defined in Section 9,1(a). "Government Party" paeans 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 Home Game) at staffing levels determined in accordance with Section 6.4., in excess of the labor costs 3 C. 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. "Indemnitor" 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 Year 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. "MLB Events" means, collectively, MLB I-lome Games and MLB Jewel Events. "MLB Home Games" means each of the Team's scheduled or rescheduled baseball games at the Baseball Stadium, including exhibition, spring training, regular season, playoff and World Series games. "MLB Jewel Events" means the 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 Department 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 4 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 Completion Date and ending on the next succeeding October 31 and (ii) each subsequent twelve (12) month period during the Tem 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 sup013 and refining the schematic 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 It "Parking Final Completion" paeans 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. "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 completion 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 performance and management of the construction of the Parking Facilities in accordance with Applicable Law. "Signage" means all signage (whether permanent or •teriiporary) in or on the Parking Premises, inci cling 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 Agreements" 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 11,9(a). "Stadium.O.peratorDefault'.'...is_d.efined in Section 8.1. "Stadium Operator Indemnitee" is defined in .Section 9.2(a). "Stadium Operator Personnel" is defined in Section 11.6. "Stadium OperatorRepresentative" is defined in Section 11.11. "Stadium Premises" is defined in.the Operating Agreement. "State" -means 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, "Term" is defined in Section 3.1. "Transfer" is defined in Section 11.9(a). "Work" is defined in Section 4,4. ARTICLE 11 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 terms set forth in this Agreement. The general configuration, layout and design features of the Parking Facilities are more particularly described in the 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. TheParties 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 terin of this Agreement shall commence on the date hereof and shall expire on October 31 in the year in which the twentieth (20`11) 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 Options to Extend Tenn. 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 Term 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 180 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 Tema. or such earlier elate 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 day 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 8 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 the Design 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 not generally consistent in all material respects with the Design Standards. lf, within such ten (10) Business Day period, the Stadium Operator Representative or the County Representative do not properly object to the Parking Design Document asset 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 be 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, z`evise 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 shall have five (5) Business, Days 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 shall 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.A.DR 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 all 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 �7 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 confirmed 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 Parking 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 firms (for the relevant construction trades) with their business addresses, (ii) permitting 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 nonunion 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; 10 3 (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..County, 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 :construction.of the. Parking Facilities; (g) Completion; managing. punch .list. and.. warranty work after Parking Substantial (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 D.esign Documents, the Design Standards, the Master Project Schedule. and this Agreement; (j) obtaining or causing to be obtained all 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 times with security against unperrnitted access; (1) subject to Section 5.4(c), promptly causing the repair and restoration of • any portibn 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 located 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 11 (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, development, 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 Requirement 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) al] 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 Baseball Stadium pursuant to the Construction Administration Agreement, and Parking Final Completion to occur as soon as practicable following Parking Substantial Conapletion. 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 the Master 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 Baseball 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) days 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 4.7 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 are of comparable distance to the Baseball Stadium; provided that in no event under (a) — (c) above shall the total number 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 -(exclusive 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) days of recording, the Stadium 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-sudh 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 terns 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.], 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 Repairs. (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 manner 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 shall cause to- be obtained and Maintained, the insurance coverage for the periods of time during the Term 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 "Parking Manager") to manage the. Parking Facilities. The City shall 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 tl e 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 terms of this Agreement. In• addition,. the ranagement. agreement shall provide that the City may amend any provisions in the.naanagernent agreement, if necessary, in order to maintain the tax-exempt status of any bond issued by the City for financing the construction of the .Parking Facilities. Pursuant to the management agreement, the City shall cause the Parking Manager to indemnify and agree to defend the Stadium Operator Ind emnitees, 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.relieve the City of its obligations under this Agreement, and all references to the "City" in this Agreement shall include the -Parking Manager as appropriate. •. ARTICLE VI USE OF PARKING FACILITIES BY TEAM AFFILIATES 6.3 Team Reserved Parking. The Stadium Operator, the Team and their employees and guests shall have exclusive use of two hundred -fifty (250) of theparking: spaces -in the Parking Facilities, at no. cost, on a twenty-four (24) hour per day, year-round basis throughout the Terra (the "Team Reserved Parking'Spaces"). The Team Reserved Parking Spaces shall be located in Parking Garages P1, 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 promoters of Other Events, as applicable, and their respective employees, guests, licensees 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 promoter 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 least two (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 teens 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 Home 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: 16 Years Price 1-5 $10.03 6-10 • $10.10 11 — 15 $10.20 16-20 $10.86 21 — 25 $11.56 26-30 $12.29 31 —_:35_... _.._ _....$12.53. For- purposes of the .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 MLB Horne Games, 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 played at the Baseball Stadium due solely to a strike or lockout of MLB players, and one or more .other Stadium Events ,are 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 Horne Games, Such amounts shall not include the taxes or surcharges, which the Stadium Operator is obligated to remit to the applicable taxing authorities under Section 6.3(d) below and other direct expenses, and the Incremental Labor Cost payable to the City under Section 6.3-(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 or before 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 instruiinent. '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 $44,000,000 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 Team Affiliates or their designees shall determine the prices and other tenors upon which the Parking Facilities will be made available to patrons for Stadium Events • (including regular season and post -season MLB Home Gaines and MLB Jewel Events) in their sole discretion, and shall receive and retain all revenues derived therefrom. Such terms may include higher oi' 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 rel ating 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 Home 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) occurring during any calendar month within ten (10) 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. (f) - 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 days, 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 eight to establish prices for, and to collect and retain, all parking fees for any 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 Home Game and the Stadium Operator shall decide the -final staffing levels for all other 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 personnel shall be deemed employees or agents of the City or the Parking Manager and shall not for any purpose be considered employees or agents of the Stadium Operator or other Team Affiliates. - 6.5 Soccer -Stadium; Other Development., The City shall not provide or permit use of the Parking Facilities by any -owner or operator of a soccer team or soccer stadium .(or its employees, licensees, guests or patrons) at lower prices than those set forth ir?. 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 minimum space purchase requirement of less than 5,750 to, reflect a relatively smaller size and projected attendance at the soccer•stadiurrr. 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 terms and conditions as the Team Affiliates shall determine.: The ,Stadium Operator shall pay to the City 50% of all net- revenues (i.e., revenues less fulfillment costs and sales commissions, but .excluding salary and benefits Maid 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 far,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. .If 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 ina 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 all 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 Tearn'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 Stadium 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 Home 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 (I) 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 Chemed 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 Home Games, or other Stadium Events expected to have attendance of at least 5,000 people. 20 ARTICLE VII [Omitted] ARTICLE VIII DEFAULTS AND REMEDIES ..Op.era.tor..Default...Bach of the following shall constitute a default by the Stadium Operator hereunder (a "Stadium Operator Default"): - (a) - If the Stadituri Operator fails to pay -or remit any amount payable by the • Stadium Operator under this Agreement and fails to cure the salve 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 or • provisions in this Agreement and such failure is not cured within forty (40) days after written notice thereof is given to the Stadiuin 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 comrnences 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 same 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 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 remedy as provided in this Agreement shall not be deemed a waiver by that Party of any claim for damages it may have by reason of the Default. (e) Notwithstanding anything to the contrary in this Agreement, the 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 County continues to perform its obligations under 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 County shall be relieved of its funding obligations under the CDT Interlocal as of the judgment 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 -Help 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 shall 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 Agreement. shall automatically terminate upon .a terp'iination 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 . . termination of the Operating Agreement pursuant to .Section.17.5.2(c) thereof, -.then the City shall 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 institute litigation 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 or default by the other Parties, except as niay 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 (i) any breach of this Agreement by the Stadium Operator; or (ii) any negligence or willful misconduct of the Stadium Operator or its contractors, employees or agents. (b) Notwithstanding the provisions of Section 9.1(a), the Stadium Operator shall not be required to indemnify for any Losses arising from or in connection with: (i) any injury to or death of a Person or .any damage to property (including loss of use) to the extent caused by the negligence or willful act of any Government Indemnitee or their respective representatives or contractors; (ii) any violation by the City or the County of any provision of this Agreement, any other Stadium Agreement or any Applicable Law or the insurance policies referred to in Exhibit D; (iii) any other matter for which the City or the County is obligated to provide indemnification under this Agreement or any other Stadium Agreement; or (iv) any Losses arising from or relating to a Force Majeure. 9.2 Indemnification by City and -County. (a) City does hereby agree to indemnify and hold harmless the Stadium Operator and the Team (collectively, "Stadium Operator Indennitees") to the extent and within the limitations of Section 768.28 Fla. Stat., and subject to the provisions of that Statute whereby the City shall not be held liable to pay a personal injury or property damage claim or judgment by any one person which exceeds the sum set forth in said statute, or any claim or judgments of portions thereof, which, when totaled with all other occurrences, exceeds the sum set forth in said statute, from any and all personal injury or property damage clamps, liabilities, losses and causes of action arising from the same claim which may arise solely as a result of the negligence of the City in connection with its rights -and obligations antler this Agreement. The City expressly understands and agrees that any insurance protection required by this Agreement or otherwise provided by the City shall in no way limit the responsibility to indemnify, keep and save harmless and defend the Stadium Operator Indemnitees as herein provided. (b) The County does hereby agree to indemnify and hold harmless the Stadium Operator lndemnitees to the extent and within the limitations of Section 768.28 Fla. Stat., and subject to the provisions of that Statute whereby the County shall not be held liable to pay a personal injury or property damage claim or judgment by any one person which exceeds the sum set forth in said statute, or any claim or judgments of portions thereof, which, when totaled with all other occurrences, exceeds the sum set forth in said statute, from any and all • personal injury or property damage claims, liabilities, losses and causes of action arising from the same claim which may arise solely as a result of the negligence of the County in connection with its rights and obligations under this Agreement. The County expressly understands and agrees that any insurance protection required by this Agreement or otherwise provided by the County shall in no way limit the responsibility to indemnify, keep and save harmless and defend the Stadium Operator Indemnitees as herein provided. 24 (c) Notwithstanding the provisions of Sections 9.2(a) and (b),.the Government 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 orany of its 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 Applicable Law;. (iii) any other matter for which the Stadium Operator or its Affiliate is obligated to provide indemnification under this Agreement or any other Stadium Agreement; or (iv) any Loss arising from or relating to a Force Majeure, 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 -of process or other written notification Of. such claim (or within such shorter time as may be necessary to give the Person• obligated to indemnify the Indemnified Party (the "Indeinnitor") 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 Indeinnitor 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 Indeinnitor 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 'Indeinnitor's ability to defend against; settle or satisfy any such Clain, . (b) The Indeinnitor 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 froth the Indemnified Party, If within twenty (20) days following such notice.from the Indemnified Party, the Indemnified Party has not received notice from the Indeinnitor that such claim will be contested or defended by the Indeinnitor, 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 Indeinnitor, 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 iii this Article IX. 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 Indeinnitor .will contest or defend the Claim. Attorneys' fees and costs accrued by the Indemnified Party during this time are indemnifiable. If required by the Indeinnitor, the Indemnified Party shall cooperate fully with the Indeinnitor 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 agreement or by judgment of a court of competent jurisdiction. Notwithstanding that the Indemnitor is actively conducting a defense or contest of any Claim against an Indemnified Party, such Claim may be settled, compromised or paid by the Indemnified Party without the consent of the Indemnitor; provided however that if such action is taken without the Indemnitor's consent, its indemnification obligations with respect thereto shall be terminated and the Indemnitor shall have no obligation to the Indemnified Party. The Indemnitor shall have the right to settle, compromise or pay any Claim being defended by the Indemnitor without the Indemnified Party's consent so long as such settlement or compromise does not cause the Indernified Party to incur any present or future material costs, expense, obligation or liability of any kind or nature, or require any admission or action or forbearance from action by the Indemnified Party that would have a material adverse effect on the Indemnified Party. (d) In the event any Claim involves matters partly within or partly outside the scope of the indemnification by an Indemnitor hereunder, then the attorneys' fees, costs and expenses of contesting or defending such Claim shall be equitably allocated between the Indemnified Party and the Indexnnitor. If a 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 Indemnified 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 of 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 filing of the arbitration and a written award is rendered within forty-five (45) days from the date of such completion. Arbitrators will be chosen from the AAA Large and ,Complex Case Panel of Arbitrators except that none of the arbitrators shall have perfonued, directly or indirectly, a material amount of work for the County, the City or a Team Affiliate within the five (5)-year= 26 period immediately preceding the date of their -selection or intend or desire to perform work for the County, the City or a Team Affiliate within one (1) year following the date of their selection. Issues determined by arbitration pursuant to this Section 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 Parties. Judgment may be entered on the arbitrators' award in any court having jurisdiction. Each Party shall bear its own attorneys' fees and costs relating to the arbitration., but the costs and fees of.tbepanel and the AAA shall be borne equally by the Parties 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 alterative dispute resolution '("Expedited ADR") under this Section 10.2. The Parties have. mutually agreed to establish .a panel ("Panel") of at least three (3) or more arbitrators (with the lead Panel member to be -reached by mutual agreement). qualified to • resolve design. and construction -related contract disputes to be available to. resolve Expedited ADR Disputes. The Parties shall exchange proposed Panel compositions within ten (10) days following the effective date of this Agreement -and -agree on the Panel (and the lead Panelist) within thirty (30) days following the effective- date of this Agreement. The arbitrator selected from the approved Panel to resolve each Expedited ADR Dispute shall be designated as the Person' (the "Neutral") to whom Expedited ADR Disputes are to be submitted for resolution under this Section 14.2. (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 issues) to be determined by such Expedited ADR by an oral presentation to the Neutral. Each -of the Parties who is party to such Expedited ADR shall be given the opportunity to hear and orally respond to the others' presentations to the Neutral, and to present documents to the Neutral in support of such Party's position. The Neutral shall have the right to limit the documents presented to the Neutral to assure a prompt resolution' of the issue(s) to be determined by the Neutral. The Parties who are party to such Expedited ADR may have their respective counsels present at such Expedited ADR, but there shall -be no examination or cross-examination of witnesses other than as required or permitted by the Neutral. -(c) The Parties shall use Expedited ADR. exclusively, rather than litigation or arbitration, as a means of resolving all Expedited ADR Disputes. The Expedited ADR will be scheduled so that it is 'completed and a decision is rendered within twenty (20)• days from the date of the filing of the Expedited ADR Dispute, and, if requested by the Parties, a written award is rendered within twenty (20) days of such completion. The written award by the Neutral shall be the binding, final determination on the merits of the Expedited ADR Dispute, and shall preclude any subsequent litigation or arbitration on such merits. The Parties agree that any disputes that arise out of such a written award shall be resolved exclusively by Expedited ADR pursuant to this Section 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 bone 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 or concurrent negligence or intentional acts of such party or any of its affiliates or related parties. Notwithstanding the foregoing, this limitation of liability shall not apply to any indemnification for third -party claims available at law or pursuant to, and subject to the limitations in, Article IX. The preceding limitation shall not be a basis for any claim or argument 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 mailed by certified mail, return receipt requested, to the Parties at the addresses set forth below (or at such other address as a Party may specify by notice given pursuant to this Section to the other Parties): If to the County: To the attention of; 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 Is' Street, Suite 2810 Miami, Florida 33128 Attn: Robert A. Cuevas, Jr. and Geri Keenan City Manager 444 SW 2" d Avenue, 10`1' Floor Miami, Florida 33130 Attn: Pedro G. Hernandez 28 With.a copy to: City Attorney 444 SW 2 )d Avenue, 9`h Floor Miami, Florida 33130 Attn: Julie O. Bra and Olga Ramirez-Seijas If to the Stadium Operator: • To the attention of: 2267 Dan Marino Boulevard Miami, Florida 33056 Attn: David Samson and Derek Jackson With a copy to: Proslcauer 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 the 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 be no warranties, representations or other agreements among .the Parties or .their. Affiliates in connection with the subject matter hereof or thereof. 11.3 Amendment. 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 -arid: 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 of the Stadium Operator, the Team and the Tearer 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 of any 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 may, 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 form 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 -assign rent shall not relieve the.Stadium Operator- of its obligations • under this Agreement. The provisions of Section 14.8 of. the Operating Agreement shall apply 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 Transfer pursuant to Section 11.9(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. (cl) Any Transfer or .attempted Transfer by a Party in violation of this. Section 11.9 shall be void. 11.10 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 lie 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 terms of this Agreement. The County Manager and City manager shall notify the other Parties in writing if they designate (or redesignate) another individual to serve as County Representative or City Representative, respectively. Each of the County Representative. and the City Representative shall have the power, authority and right, on behalf of the County and City, respectively, and without any further resolution or action of the Board or Commission, 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 Stadiurn Operator or other Persons for which consent and/or approval is required from the Government 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 180 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 Commission approval for the delegated authority contained in 11.11(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 than the delegated procurement authority of the County Mayor or City Manager, as set forth in the applicable County and City Charters, County and City Codes, and any related administrative or implementing orders. Any consent, approval, decision, determination or extension under this Agreement by the County Representative or the City Representative shall be binding on the County and the City, respectively. Notwithstanding and prevailing over anything to the contrary in this Section and this Agreement, the parties agree that the Board may at any time rescind any or all delegations of authority to the County Representative. In such instances, the approval, consent or action sought shall be subject to approval by the Board and, if a time frame for the County Representative's approval, consent or action is set forth in this Agreement, the Board shall consider the matter no later than the 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 "Stadiurn 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 Operator -to: - (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 Operator in this Agreement; . (iv) sign .any and all documents on behalf of the Stadium Operator necessary or convenient to the foregoing approvals, 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 Government Parties and any other Person dealing with the Stadium Operator -in connection with - this Agreement or any matter governed by this Agreement may rely and shall be fully protected in relying upon the authority .of the Stadium 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 theprovisions 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 limit the scope, extent or 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 fortes. The terse "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 Persons successors and assigns. All references to "Articles", "Sections",. "Schedules" or "Exhibits" shall be references to the Articles, Sections, Schedules and Exhibits to this Agreement, except to the extent that any such reference specifically refers • to another document. Each of the Parties has agreed to the use of the particular language of the provisions of this Agreement and any questions of doubtful interpretation shall not be resolved by any rule or interpretation against the draftsman 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 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) complies 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 to be conferred by the invalid provision; and the remaining provisions ofthis Agreement, if 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. 11.17 Governing Law. This Agreement and the interpretation of its tenns 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. 11.19 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 fixture laws and regulations whatever nature applicable to the planning, design, construction and development of.tlie 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 Departinent, Miami -Dade Department of Environmental Resources Management, the Commission or any other City, County, federal or state department or authority, committee or agency to grant or leave in effect any zoning changes, variances, permits, waivers, contract amendments, or any other approvals that .may be granted, withheld or revoked -in the discretion of the City, the County or other - applicable governinental 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 performance. of such covenant or obligation shall. be excused for the period of such delay and the period -for the - performance 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 Requirements. Notwithstanding any other provision of this Agrees ent, 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 .Cityand the County agree not to seek an injunction or similar'relief against• Major. League Baseball to enjoin its implementation of the Baseball Rules and Regulations. In the event that any act or omission taken by the Stadium Operator to comply with Baseball Rules and Regulations materially affects the rights of the City or the County under 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 Stadium Agreements. 11.23 Mutual. Covenants. (a) The Parties, whenever and as often as each shall be reasonably requested to do so by another Party or by the Team, shall execute or cause to be executed any further documents and take any further actions as may be reasonably necessary or expedient in order to consummate the transactions provided for in, • and to carry out the purpose and intent of, this 35 Agreement and each of the other Stadium Agreements, except to the extent such actions by the a Govemmerit Party requires approval by the Board or the Commission, as applicable. (b) No Party shall terminate this Agreement on the ground of ultra vires acts or for any illegality or on the basis of any challenge to the enforceability of this Agreement, except as otherwise permitted in this Agreement -or in the other Stadium Agreements. Subject to the preceding sentence, no such .challenge may be asserted by any Party except by .the institution of a declaratory action in which the Parties and the Team are parties. (c) Each 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 do so would be deemed by such Party as presenting a conflict of interest or would be contrary to Applicable Law. The applicable Party shall pay all of the legal fees, costs and other expenses incurred by it in contesting the Challenge. The applicable Party shall consult with the Parties in contesting any Challenge. The Parties shall take all ministerial actions and proceedings reasonably necessary or appropriate to remedy any apparent invalidity, lack or defect in authorization, or illegality, or to cure any other defect,, which has been asserted or threatened. However, 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 or to use diligent reasonable efforts or other similar efforts, such Party shall not be required to expend any funds, or grant any other consideration of any kind, in the performance of such undertaking, and each Party further acknowledges that the obligation of any Party to act in good faith, undertake good faith efforts, or to use diligent reasonable efforts or other similar efforts does not constitute a warranty, representation. or. other guaranty that the result which the Parties are attempting to. achieve will be successfully achieved and no Party shall be liable for any failure to achieve the result or results intended so long as the Party has complied with its obligation to act in accordance with the applicable standard. 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. 1 l .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 Govenuxrent 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 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. Theattention 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. CITY O, FL.ORIDA By. �..a i Hernandez City Manager City of Miami A1'1'EST: By: APPROVED AS TO FORM AND CORRECTNESS: City Attorney J ULIE 0 . BR� 1VMARLINS STADIUM OPERATOR, LLC By: Name: Title: Qr< With respect to the County Provisions only: MIAMI-DADE COUNTY, FLORIDA Bv: George M. . rgess County Manager Miami -Dade County ATTEST: f the Board APPROVED AS TO FORM AND LEGAL SUFFICIENCY: Conn A orne County Y APPROVED AS REQUIREMENTS: By: Name: Risk Manageme t D' cto 37 Exhibit List Exhibit A — Entire Site, Baseball Stadium Site and City Parking Site Exhibit B — Parking Criteria Exhibit C — Operating Standard Exhibit D — Insurance 1S'=.-ci Baseball Stadium Site/City Parking Site Exhibit A • PP:ROX 928;:.SsP,. NW 7TH STREET NW 3RD STREET NW 6TH ST ;9SP:rg7:. 1 W4THST, APPROX. • 1009 SP '1'ACEg, =RED P R44,1 G. ' STADIUNDSTTE MJAMJBALLPARK NORTH 21 JANUARY 2009 . BASEBALL STADIUM SITE, PARKING FACILITIES 1'I.OKIUA MAR1.1,�`S Cf ry OF MIA:MI MIAMI • DADE COUNTY EXHIBIT 13 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: Pi : Located to the East of the building that is located at the S/E corner of NW 7ih Street and NW 16th Avenue. Approximate number of spaces: 928 Number of levels: 5 Approximate total parking' area: 354,700 sq. ft.- Approximate height to top tier: 47 ft. • Width of typical spaces: 9'0" on first five levels. P2: Located at S/W corner of NW 7th Street and NW 14°i 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 of typical spaces: 9'0" on first five levels. P3: Located at N/E corner of NW 3r`I Street and NW 16th Avenue. Number of levels: 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 corner of NW 3'd Street and NW 14th Avenue, Number .of levels: 6 Approximate 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 16°i Avenue between .NW 4th Street and NW 7`h Street, and three (3) lots located East of NW 14tt' Avenue between NW 3'd Street and NW 6th Street. Approximate nuniber 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. • 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 appro.xirnately 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 4th Street or Sty' 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 2of3 • 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). • 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. • 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) Minimum of 3,0001b capacity. • 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 ancl 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 3of3 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 of time 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 system 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. Staffing: Personnel Standards: The City will hire qualified and well -trained personnel to operate the. Parking Facilities efficiently and to assure collection, security, and reconciliation of revenues, with 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 to. operate, 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 dumpster areas will be sanitized as required; • Security personnel to ensure 1) patrons can access and exit the Parking Facilities in 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 vehicles. 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 Home Games. If the parties are .unable to agree to staffing levels for MLB Home 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 Custodial: 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 Gaines (2 for each of the structured lots, and roving in the surface lots) 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 with 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 condition, (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), (cl) 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 to limit 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.fro,.n,being n'a.ani.pulated, .in.additi.on, security,s.eals..m.ust.be..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 toprovide 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, and.to 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. Page3 of 3 CITY PARKING AGREEMENT EXHIBIT D-1 INSURANCE REQUIREMENTS MTAMJ CITY PARKING CONSTRUCTION PHASE I. Commercial General Liability (PROJECT SPECIFIC) A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence General Aggregate Limit Products/Completed Operations Personal and Advertising Injury Medical Payments B. Endorsements Required $ 1,000,000 $ 2,000,000 $ 1,000,000 $ 1,000,000 $ 10,000 City ofMiami, 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 10 Years - 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, Marlins Stadium Developer, LLC, Florida Marlins, LP, and Miami Dade County included as an Additional Insured Employees as insureds III. 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 IV. 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 employee $1,000,000 for bodily injury caused by disease, policy lirxrit V. Umbrella Policy/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 OcculTence Aggregate B. Endorsements Required $20,000,000 $20,000,000 City of Miami, Marlins Stadium Operator LLC, Marlins Stadium Developer, 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. Payment and Performance Bond Full Contract Arnount City of Miami, Marlins Stadium Operator LLC, Marlins Stadium Developer, LLC, Florida Marlins, LP and Miami Dade County included as Obligees. VII. Builders' Risk Causes of Loss: All Risk -Specific Coverage Project Location Valuation: Replacement Cost Deductible: $25,000 All other Perils 5% maximum on Wind & T--Tail and Flood City of Miami, Marlins Stadium Operator, LLC, Marlins Stadium Developer, LLC, Florida Marlins, LP, Marlins Stadium Developer, LLC and Miami Dade 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, socl, plants while at premises. • Flood, including inundation, rain, seepage and water damage. • Earthquake • Terrorism • 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 VIII. ProfessionalLiability 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: 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 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 EXHIBIT D-2 INSURANCE REQUIREMENTS TO BE PROVIDED BY CITY OR PARKING MANAGER FOR THE OPERATIONAL PHASE OF THE PARKING GARAGE FACILITY Z. Commercial General Liability (Prinuu), & No7z Contributor)) A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $2,000,000 Products/Completed Operations $1,000,000 Personal and Advertising Injury $1,000,000 Damage to Rented Premises $300,000 Medical Payments $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 201011/85) 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 Miami Dade County included as an Additional Insured Employees as insureds TTT. Worker's Compensation Limits of Liability: meeting the statutory requirements of the State of • Florida • Waiver of subrogation • Employer's Liability A. Limits .of Liability $500,000 for bodily injury caused by an accident, each accident. $500,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit - V. Umbrella Policy/Excess Liability (Excess Following Form/True Excess Following Form/True Umbrella) in excess of the cor .rnercial 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 $10,000,000 $10,000,000 City of Miami, Marlins Stadiiuna. 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 (GILL) 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 terms 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 Every five. years front the date of this Agreement, the Parties will revisit the limits and sub-liraits. of theopOlicies above and adjust to levels that are reasonable and customary in. --the'Sotitlallorida insurance titatchet. ' 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 VW as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best 'Company, Oldvvick, 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 "E" Parking Assignment Agreement Assigntnent and Assumption Agreement The parties to this Assignment 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 teinis 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 By: D C Assignee: Samson Stadium Parking, LLC By: 0255/48633-016 Current/16651635v2 MIAMI BALLPARK PARKING FACILITIES INTERLOCAL COOPERATION & LEASE AGREEMENT This MIAMI BALLPARK PARKING FACILITIES INTERLOCAL COOPERATION & LEASE AGREEMENT ("Agreement") is entered into this day of , 2011 ("Effective Date"), by and between the DEPARTMENT OF OFF-STREET PARKING of the City of Miami, an agency and instrumentality of the City of Miami, Florida ("MPA"), and the CITY OF MIAMI, FLORIDA, a municipal corporation of the state of Florida ("City" and, together with the MPA, the "Parties"). RECITALS A. The City owns the surface lots, parking structures and retail facilities, as more particularly described in Exhibit "B," attached hereto and made a part hereof, surrounding the Miami Ballpark, located at 501 Marlins Way, Miami, Florida ("Ballpark"). B. The Miami City Commission, by Resolution No. R-09-0509, passed and adopted on October 22, 2009, authorized the issuance of Revenue Bonds on a taxable and tax-exempt basis to finance the City's portion of the construction of the Facilities, the proceeds of which are governed by Internal Revenue Code Requirements and Revenue Bond Requirements. C. Pursuant to that certain City Parking Agreement dated April 15, 2009 by and between the City, Marlins Stadium Operator, LLC, and Miami -Dade County ("City Parking Agreement"), a copy of which is attached as Exhibit "D" hereto and made a part hereof, the City (through the MPA or other third -party manager) has the exclusive right, authority and responsibility to operate, manage, maintain and control the Parking Facilities. D. The terms and conditions regarding the operation of the Parking Facilities, as an integral part of the Ballpark project, are assigned to Stadium Parking, LLC, pursuant to that certain Assignment and Assumption Agreement dated May 7, 2010 by and between Marlins Stadium Operator, LLC and Stadium Parking, LLC ("Parking Assignment Agreement"), a copy of which is attached as.Exhibit "E" hereto and made a part hereof. E. The MPA was created, pursuant to Section 23 of the Charter of the City of Miami, Florida ("Charter"), to manage off-street parking facilities throughout the city of Miami. F. For purposes of operational efficiency, the City desires to have the management of the Parking Facilities include the leasing of the Retail Facilities. G. The Florida Interlocal Cooperation Act of 1969, Chapter 163, Part I of the Florida Statutes ("Act"), permits local governmental units to make the most efficient use of their powers by enabling them to. cooperate with other agencies on a basis of mutual advantage and thereby to provide services and facilities in a ----manner-and-pursuant-to--forms-.of—governmental-organization-that_wilLaccord._best_.with_.the...needs.. of local_,. communities, such as those contemplated herein. H. Pursuant to Sections 23 and 29-B(c) of the Charter, the Parties are entering into this interlocal and lease agreement. I. The express purpose and intent of this Agreement is to accomplish various governmental purposes, including the City's obligations set forth in the City Parking Agreement, to promote economic development,- provide the public with convenient and affordable parking, and to maximize the revenues generated by the Facilities, thereby providing the City with additional monies to achieve the improvement of the City overall. J. Pursuant to the Act, the City and the MPA wish to enter into this Agreement to set forth the terms and conditions relating to the management and operation of the Facilities. NOW, THEREFORE, in consideration of the mutual promises of the parties contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City and the MPA agree as follows: ARTICLE I: DEFINITIONS 1.1 Definitions. Any word contained in the text of this Agreement shall be read as the singular or the plural and as the masculine, feminine or neuter gender as may be applicable in the particular context. More specifically, however, for purposes of this Agreement, the following words shall have the meanings ascribed to them in this Section. All terms not defined in this Agreement shall have the meanings ascribed to them in the City Parking Agreement. 1.1.1 "Advertising Fee" shall mean all payments made by the Stadium Operator pursuant to Section 6.6(a) of the City Parking Agreement. 1.1.2 "Alternative Use" shall have the meaning ascribed to it in Section 4.1.3. 1.1,3 "Appropriate Subtenant" shall have the meaning ascribed to it in Section 5.3. 1:1.4 "Capital Improvements" shall mean improvements to the Facilities of a character required to be capitalized under generally accepted accounting principles. 1.1.5 "Capital Improvements Plan" shall have the meaning ascribed to it in Section 7.2. 1.1.6 "Casino Adjustment" shall have the meaning ascribed to it in Section 5.4.5. 1.1.7 "CDT Receipts" shall mean those Convention Development Tax Receipts received by the City, pursuant to that certain Interlocal Agreement dated July 1, 2009, by and between the City and Miami -Dade County, a copy of which is available at the Office of the City Clerk, 3500 Pan American Drive, Miami, Florida. 1.1.8 "Charter" shall have the meaning ascribed to it in. the Recitals. 1.1.9 "City Attorney" shall mean the city attorney of the City, and the general counsel to the MPA 'pursuant to Section 23(g) of the Charter of the City of Miami, Florida, or his/her designee. Miami Ballpark Parking Fac;lities )nterlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking 1.1.10 "City Manager" shall mean the chief administrator of the City, or his/her designee. 1.1.1 1 "Combined Expenses" shall mean the Parking OEM and Retail OEM, collectively. 1.1.12 "Combined Revenues" shall mean Pledge Excess, Parking Fee, Retail Revenue, Advertising Fee, and any other revenue derived from the operation of the Facilities and collected by the Parties, collectively. 1.1.13 "Contract Administrators" shall have the meaning ascribed to it in Section 9.1. 1.1.14 "Debt Service" shall mean the debt service for the Revenue Bonds to be paid by the City. 1.1.15 "District Commissioner" shall mean that certain member of the Miami City Commission for the commission district within which the Property is located. 1.1.16 "El" shall mean the surface parking lot located at 1380 Northwest Sixth Street, Miami, Florida, and being more particularly described in Exhibit "A," attached hereto and made a part hereof. 1.1.17 "E2" shall mean the surface parking lot located at 1390 Northwest Fifth Street, Miami, Florida, and being more particularly described in Exhibit "A." 1.1.18 "E3" shall mean the surface parking lot located at 1350 Northwest Fourth Street, Miami, Florida, and being more particularly described in Exhibit "A." 1.1.19 "Emergency Improvements" shall have the meaning ascribed to it in Section 7.5.1. 1.1.20 "Event Parking Fee" shall mean all payments made to the City by the Stadium Operator, Team, Team Affiliates, Major League Baseball, other sponsors and promoters of events at the stadium, and their respective employees, guests, licensees and patrons pursuant to Section 6.3 of the City Parking Agreement. Article VII. 1.1.21 "Expense Invoice" shall have the meaning ascribed to it in Section 6.5.2, 1.1.22 "Facilities" shall mean the Parking Facilities and the Retail Facilities, collectively. 1.1.23 "Facility CTCI" shall mean the contribution to capital improvements as provided in 1.1.24 "Fair Market Value" shall have the meaning ascribed to it in Section 5.4.1. 1.1.25 "Fiscal Year" shall mean the twelve (12) month period commencin on the first 1st day of October of every year and ending on the thirtieth (30th) day of September of the year immediately succeeding. For purposes of identification during the ordinary course of operations, and other documents as may be required by this Agreement, a specific Fiscal Year shall be identified as follows: either (1) "Fiscal Year -3- Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking x," where "x" equals the year in which .the Fiscal Year ends; or.(2) "Fiscal Year v — z," where "y" equals the year in which the Fiscal Year begins and "z" equals the year in which the Fiscal Year ends. 1, I.26 "Funding Deficit" shall mean those times when the projected Level A revenues are insufficient to fund one hundred (100%) percent of the Combined Expenses for any Fiscal Year. 1.1.27 "Generally Reimbursable Expense" shall have the meaning ascribed to it in Section 6.4.1. 1.1.28 "Gross Pledge Excess" shall mean those remaining Pledged Revenues following the City's full payment of Debt Service for each Fiscal Year. 1.1.29 "Hazardous Materials" shall mean any material, substance or waste that is or has the characteristic of being hazardous, toxic, ignitable, reactive or corrosive, including, without limitation, petroleum, PCBs, asbestos, materials.known to cause cancer or reproductive problems and those materials, substances and/or wastes, including infectious waste, medical waste and potentially infectious biomedical waste, which are or later become regulated by any local governmental authority or the United States Government, including, but not limited to, substances defined as "hazardous substances," "hazardous materials," "toxic substances," or "hazardous wastes" under any Hazardous Materials Laws. 1.1.30 "Hazardous Materials Laws" shall mean all applicable requirements of federal, state and local environmental, public health and safety laws, regulations, orders, permits, licenses, approvals, ordinances and directives, including but not limited to, all applicable requirements of: the Clean Air Act; the Clean Water Act; the Resource Conservation and Recovery Act, as amended by the Hazardous and Solid Waste Amendments of 1984; the Safe Drinking Water Act; the Comprehensive Environmental Response, Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act of 1986; the Occupational Health and Safety Act; the Toxic Substances Control Act; the Pollutant Discharge Prevention and Control Act; the Water Resources Restoration and Preservation Act; the Florida Air and Water Pollution Control Act; the Florida Safe Drinking Water Act; and the Florida Environmental Reorganization Act of 1975. 1.1.31 "Initial Construction" shall have the meaning ascribed to it in Section 3.3.1. 1.1.32 "Internal Revenue Code" shall mean the Internal Revenue Code of 1986, as. amended, together with all regulations promulgated thereunder. 1.1.33 "Internal Revenue Code Requirements" shall mean those requirements relating to tax-exempt bonds under Sections 103(a) and 141 through 150 of the Internal Revenue Code, 1.1.34 "Level A" shall have the meaning ascribed to it in Section 6.2.2. 1.1.35 "Level B" shall have the meaning ascribed to it in Section 6.2.2.. 1.1.36 "Major League Baseball" shall have the meaning ascribed to it in the City Parking Agreement. Miami Ballpark Parking Facilities Interlocal Cooperation &Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking Florida. 1.1.37 "Miami City .Commission" shall mean. the Commission of the City of Miami, • 1.1.38 "MPA Representatives" shall have the meaning ascribed to it in Section 3.8. 1.1.39 "Monthly Report" shall have the meaning ascribed to it in Section 9.4. 1.1.40 "Net Pledge Excess" shall mean those remaining Pledged Revenues following the City's full payment of Debt Service for each Fiscal Year, less that portion set aside for Facility CTCI pursuant to Section 7.3 herein, and that portion set aside for the City's contribution to the capital reserve fund pursuant to Section 9.3 of the Stadium Operating Agreement. 1.1.41 "Notice Recipient" shall have the meaning ascribed to it in Section 3.8. 1.1.42 "Notifying Party" shall have the meaning ascribed to it in Section 3.8. 1.1.43 "Operating Budget" shall have the meaning ascribed to it in Section 6.3. 1.1.44 "Operating Reserve" shall have the meaning ascribed to it in Section 6,4.5. 1.1.45 "Operating Standard" shall have the meaning ascribed to it in the City Parking Agreement. 1.1.46 "P1" shall mean the structured parking facility located at 1502 Northwest Seventh Street, Miami, Florida, and being more particularly illustrated in Exhibit "B," attached hereto and made a part hereof. 1.1.47 "P2" shall mean the structured parking facility located at 1402 Northwest Seventh Street, Miami, Florida, and being more particularly illustrated in Exhibit "B." 1.1.48 "P3" shall mean the structured parking facility located at 1502 Northwest Fourth Street, Miami, Florida, and being more particularly illustrated in Exhibit "B." 1.1.49 "P4" shall mean the structured parking facility located at 1402 Northwest Fourth Street, Miami, Florida, and being more particularly illustrated in Exhibit "B." 1,1.50 "Parking Facilities" shall mean all Structured Parking, Surface Parking, and Private Drives, excluding the Retail Facilities. 1.1.51 "Parking Fee" shall mean the fee paid by Persons for the use of the Parking Facilities, excluding those Persons whose use is related to MLB Events pursuant to Sections 6.1 and 6.2 of the City Parking Agreement. 1.1.52 "Parking OEM" shall mean those Generally Reimbursable Expenses necessary for the operation and maintenance of the Parking Facilities after giving effect to Sections 4.1 and 4.2. •5- Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Asset Managetnent> Real Estate> Miami Ballpark Parking 1.1.53 "Parking Surcharge" shall mean the eighty (80%) percent portion of the total funds derived from the fifteen (15%) percent surcharge to be charged on fees charged by, or imputed on, the Stadium Operator for the use of the Parking Facilities pursuant to Section 6.1 and 6.2 of the City Parking Agreement. 1.1.54 "Person" shall mean any natural person, firm, partnership, association, corporation, limited liability company, trust, public body, authority, governmental unit or other entity. 1.1.55 "Pledged Revenue" shall ' mean CDT Receipts, Event Parking Fee, and Parking Surcharge, collectively. 1.1.56 "Private Drives" shall have the meaning ascribed to it in Section 4.1.4. 1.1.57 "Property" shall mean the properties, including the Facilities and other improvements thereon, located in the county of Miami -Dade, state of Florida, as more particularly described in Exhibit "A." 1.1.58 "Receipt" shall have the meaning ascribed to it in Section 9.2. • 1.1.59 "Retail Facilities" shall mean those spaces located within structured parking facilities P1, P2, and P3 designated for commercial/retail use, as depicted in Exhibit B. 1.1.60 "Retail Interest" shall mean any sublease, license, concession or other agreement by which the MPA or any Person claiming under the MPA (including, without limitation, a Subtenant) demises, leases, subleases, licenses or sublicenses to or permits the use or occupancy by another Person of the Retail Facilities. 1.1.61 "Retail OEM" shall mean those Generally Reimbursable Expenses necessary for the operation and maintenance of the Retail Facilities after giving effect to Section 5.7. 1.1.62 "Retail Revenue" shall mean revenue collected by the Parties from Subtenants for the use of the Retail Facilities, excluding those•amounts collected in addition thereto for the recovery of other building expenses (i.e., real estate taxes, insurance, maintenance, etc.). 1.1.63 "Revenue Bonds" shall mean those certain City of Miami, Florida Tax -Exempt Special Obligation Parking Revenue Bonds, Series 2010A and City of Miami, Florida Taxable Special Obligation Parking Revenue Bonds, Series 2010B. 1.1.64 "Revenue Bond Requirements" shall mean those requirements, restrictions, and covenants of the Revenue Bonds. 1.1.65 "Revenue Control Device" shall mean any mechanical or electronic equipment installed for purposes of recording and controlling the entrances to, and exits from, the Parking Facilities, which equipment shall include, but not be limited to: loop detectors, treadles, gate arms, automated ticket dispensers and pay stations, cash registers, etc. 1.1.66 "Revenue Fund" shall have the meaning•ascribed to it in Section 6.2. -6- Miatni Ballpark Parking Facilities Interlocal Coopera'ion & Lease Agreement Public Facilities > Asset Management> Real Estate> Miami Ballpark Parking 1.1,67 "Risk Manager" shall mean the director of the Department of Risk Management of the City of Miami, Florida, or his/her designee. • • 1,1:68• •"Stadium Operating Agreement" shall mean that certain Operating Agreement dated April 15, 2009 by and between the City, Miami -Dade County and Marlins Stadium Operator, LLC, a copy of which is available at the Office of the City Clerk, 3500 Pan American Drive, Miami; Florida. 1.1.69 "Stadium Operator" shall have the meaning ascribed to it in the City Parking Agreement. 1.1.70 "Statement of Use" shall mean a statement detailing those Combined Expenses paid by the MPA where the funding source used was, in whole or in part, Operating Reserve. Agreement. 1.1.71 "Structured Parking" shall mean the parking facilities P1, P2, P3, and P4. 1.1.72 "Subtenant" shall mean any Person with a Retail Interest. 1.1.73 "Surface Parking" shall mean the parking facilities El, E2, E3, WI, W2, and W3. 1.1.74 "Team" shall have the meaning ascribed to it in the City Parking Agreement. 1.1.75 "Team Affiliate" shall have the meaning ascribed to it in the City Parking 1.1.76 "Tenn" shall have the meaning ascribed to it in Section 2.1. 1.1.77 "W 1" shall mean the surface parking lot located at 1600 Northwest Seventh Street, Miami, Florida, and being more particularly described in Exhibit "A." 1.1.78 "W2"• shall mean• the surface parking lot located at 1610 Northwest Sixth Street, Miami, Florida, and being more particularly described in Exhibit "A." 1.1.79 "W3" shall mean the surface parking lot located at 1680 Northwest Fifth Street, Miami, Florida, and being more particularly described in Exhibit "A." 1,2 herein: Exhibits. The following Exhibits shall form a part of this Agreement and are incorporated Exhibit "A" The Property Exhibit "B" The Facilities Exhibit "C" City Insurance Requirements Exhibit "D" City Parking Agreement Exhibit "E" Parking Assignment Agreement ARTICLE II: TERM Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking 2.1 Term. The initial term of this Agreement shall commence on the Effective Date, and shall terminate on the 30th day of September, 2031, unless sooner terminated pursuant to any applicable provision of this Agreement. The initial term, together with any renewal terns, shall be referred to individually and collectively as. the "Term." 2.2 Options to Extend. The City, at its sole and exclusive option, may extend the Term of this Agreement for two (2) additional successive periods of ten (10) years each. The City shall exercise its option to extend the Term by deliveringwritten notice of the same to the MPA no later than one hundred twenty (120) days prior to the expiration of theTerm. 2.3 Termination. The City may terminate this Agreement, in whole or in part, with or without cause upon no less than ninety (90) days notification of termination in writing. 2.4 Partial Termination. In the case of a partial termination of any portion of the Property or provision of this Agreement, the terminated portion shall be eliminated from the effect of this Agreement; the remaining portion of the Property shall remain subject to the terms, conditions and privileges contained herein. ARTICLE III: THE PROPERTY 3.1 Title. The City represents and warrants that it is well seized of the Property, together with all buildings, improvements, facilities and fixtures, and has good title to it free and clear of liens and encumbrances having priority over this Agreement and that the City has full right and authority to enter into this Agreement. 3.2 Lease of Property. The City hereby leases to the MPA, and the MPA hereby leases from the City, subject to the terms and conditions of this Agreement, to have and to hold, the Property, tenements and hereditaments, with all of the rights, privileges and appurtenances, thereunto belonging and pertaining unto the MPA for the Term. 3.3 Right of Entry. The MPA shall permit the City and its employees, agents, representatives, and designees to enter the Property at all tunes reasonable upon advanced written notice for any proper purpose; provided, however, that the City's right under this Section 3.3 shall not unreasonably interfere with the operation of the Facilities. 3.3.1 Initial Construction. Notwithstanding Sections 3.2 and 3.3 above, the MPA acknowledges that as of the Effective Date, the City engages, by itself and through third -party representatives, in construction activities related to the larger Ballpark project ("Initial Construction"), and occupies certain portions of the Property, and the Facilities thereon. Until such time as the Property is not required for Initial Construction, the MPA's rights, as lessee, under this Agreement, for those,portions so affected, shall be non- exclusive and shared with the City. Upon completion. of Initial Construction, with written notice thereof, the MPA shall enjoy the exclusive right to the affected portions as provided under Section 3.2. 3.4 Uses. The MPA shall use the Property as authorized by this Agreement, and for no other • purpose. The MPA shall not permit the Property to be used in any manner inconsistent with the restrictions of the City Parking Agreement or any applicable law.' The use of the Property shall be further subject to Internal Revenue Code Requirements and Revenue Bond Requirements, where applicable. -$ - Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate>.Miami Ballpark Parking 3.5 Alterations. The City reserves the right, at any time it deems necessary, to lawfully alter or change the Property, upon the City giving notice to MPA no less than thirty (30) days prior to the proposed • alterations. • The MPA shall not alter, or cause. to be altered, • the Property• in any way without having first received the written consent of the City Manager, which consent may be withheld or granted upon consultation with the District Commissioner. 3.6 Damage or Destruction. In the event the Property is damaged or otherwise destroyed due to the fault of the MPA or a Subtenant, the liable party shall: (i) immediately notify the City; and (ii) secure the Property in order to minimize injury to persons; and (iii) provide all insurance proceeds from any insurance policies carried by the liable party to the City. The City shall not be liable for any inconvenience or annoyance to the MPA, or other Subtenants, or for injury to a Subtenant's operations resulting in any way from damage, destruction or repair of the Property, unless caused by the gross negligence or willful misconduct of the City, its agents, representatives and employees. 3.7 Easements. The City agrees to grant such temporary non-exclusive easements in, over, upon, through and under the Property, as may be needed and requested by the MPA or Subtenants in connection with the development, construction, operation, maintenance and repair of the Property. The City Manager shall have the right to determine the location of all easements, and said easements shall be specifically authorized by a duly adopted resolution of the Miami City Commission where required by the City Charter or Code. 3.8 Hazardous Materials; Environmental Laws. The MPA hereby agrees that the MPA and its officers, directors, employees, representatives, agents, contractors, subcontractors, and any other users of the Property (collectively, "MPA Representatives") shall not use, generate, manufacture; refine, produce, process, store or dispose of, on, under or about the Property or transport to or from the Property in the future for the purpose of generating, manufacturing, refining, producing, storing, handling, transferring, processing or transporting Hazardous Materials, except in compliance with all applicable Hazardous Materials Laws. Furthermore, the MPA shall, at its own expense, procure, maintain in effect and comply with all conditions of any and all permits, licenses and other governmental and regulatory approvals required for the storage or use by the MPA or any of the •MPA's• Representatives of any Hazardous Materials on the Property, including without limitation, discharge of (appropriately treated) materials or wastes into or through any sanitary sewer serving the Property. Each party hereto (for purposes of this Paragraph, "Notifying Party") shall immediately notify the other party (the "Notice Recipient") in writing of: (a) any enforcement, clean up, removal or other governmental or regulatory action instituted, contemplated or threatened concerning the Property pursuant to any Hazardous Materials Laws; (b) any claim made or threatened by any person against the Notifying Party or the Property relating to damage contribution, cost recovery, compensation, loss or injury resulting from or claimed to result from any Hazardous Materials on or about the Property; and (e) any reports made to any environmental agency arising out of or in connection with any Hazardous Materials in or removed from the Property including any complaints, notices, 'warnings or asserted violations in connection therewith, all upon receipt by the Notifying Party of actual knowledge of any of the foregoing matters. Notifying Party shall also supply to Notice Recipient as promptly as possible, and in any event within. five (5) business days after Notifying Party first 'receives or sends the same, copies of all claims, reports, complaints, notices, warnings or asserted violations relating in any way to the Property or MPA Representatives use thereof. -9- Miami Ballpark Parking Facilities lnterlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking 3.9 Surrender. Upon the terrnination of this Agreement, the MPA shall peaceably and quietly leave, sun -ender and deliver to the City, the Property, together with any improvements, alterations, changes and additions made upon the Property. 3.10 Advertising; Signage. The MPA shall not permit the installation upon the Property, or the display from within the Property, any Signage, whether permanent or temporary, without having first received the written consent of the City Manager, which consent may be withheld or conditioned in his/her sole discretion. 3.10.1 Team Advertising. Notwithstanding the foregoing, the MPA shall permit on the Property, the display of Signage related to the advertising rights granted to the Team Affiliates pursuant to Section 6.6 of the City Parking Agreement. The MPA shall grant the Stadium Operator access to the Property for the installation and maintenance of such Signage, upon such reasonable terms and conditions, with the written consent of the City Manager. ARTICLE IV: PARKING FACILITIES 4.1 Operation. Except as may be otherwise required herein, the MPA agrees to operate, manage, direct, and supervise the use of the Parking Facilities pursuant to the Operating Standard as established in the City Parking Agreement at all times during the term thereof. It is understood and agreed by the Parties that the Parking Facilities are to be operated, to the fullest extent possible, as a fully automated facility. The MPA further agrees to utilize those Revenue Control Devices that will facilitate the achievement of a fully - automated Parking Facility. 4.1.1 Operating Hours. Subject to the scheduling priorities set forth in the City Parking Agreement, the MPA agrees to operate and make available to the public, the Parking Facilities, on a twenty- four (24) hour per day/seven (7) day per week basis. The City Manager, upon no objection from the Miami City Commission and upon not less than thirty (30) days prior written notice to the MPA, may alter the operating hours of any portion or all of the Parking Facilities, at any time, and for as many times, during the Term of this Agreement. 4.1.2 W3 Operations. The MPA acknowledges that W3 is conveyed as a parking lot and a baseball field. As such, W3 shall be operated for the dual purpose of serving as (1) event parking as may be required by Section 6.2(a) of the City Parking Agreement; and (2) an outdoor recreational facility during all other times for the use of the general public. The MPA shall establish reasonable operating hours for the use of W3 as a recreational facility, and the City Manager shall have the right, upon consultation with the District Commissioner, to adjust the W3 operating hours at any time, and for as many times, during the Term hereof. The MPA may recommend, and the City shall have the discretion to adopt, a schedule of fees to offset any cost of operation for the use of W3 as a recreational facility. Until such time as the MPA receives written notice from the City establishing a schedule of fees, a Person's use of W3, for the sole purpose as a recreational facility, shall be at no cost. 4.1.3 Surface Lot Alternative Use. During all such times the demand for parking does not require the use of a portion or all of the Surface Parking, except as may be otherwise required in this Agreement, the MPA agrees to allow Alternative Uses of the Surface Parking upon such terms and conditions as may be established by the City Manager. The MPA shall not permit.any.Alternative Use of, the Surface -io- Miami Ballpark Parking Facilities lnterlocal Cooperation & Lease Agreement • PublicFacilities> Asset Management> Real Estate Miami Ballpark Parking Parking, without having first received the written approval of the City Manager, which approval may be withheld or conditioned upon consultation with the District Commissioner. For purposes of this Section 4.1.3, "Ahernativd Use" shall mean any lawful use of the Surface Parking, other than for the parking of vehicles, subject to.Internal Revenue Code.Requirements and Revenue -Bond Requirements. 4.1.4 Private Drives. The Parties acknowledge that those certain portions of: (a) Northwest 15th Avenue; and (b) Northwest 6th Street being situated in Tract A of STADIUM PLAT, 'according to the plat thereof, as recorded in Plat Book 168, at Page 25, of the Public Records of Miami -Dade County, Florida; and (c) Northwest 15th Avenue; and (d) Northwest 4th Street being situated in Tract D of STADIUM PLAT, according to the plat thereof, as recorded in Plat Book 168, at Page 25, of the Public Records of Miami -Dade County, Florida, have been removed from the public right-of-way and are now private drives ("Private Drives"). As such, the operation and maintenance of the Private Drives shall be in similar fashion and in concert with the Facilities as a whole, subject to the operating requirements and scheduling priorities of this Agreement, the City Parking Agreement, or those requirements as may be prescribed from time to time by the City Manager. 4.1.5 Personnel. In addition to the minimum staffing levels established by the Operating Standard, the MPA agrees to employ, or cause to be employed, sufficient personnel to operate, maintain and secure the Parking Facilities pursuant to Sections 4.1 and 4.2 of this Agreement. Such personnel shall include, without limitation, custodial, maintenance, and security staff. The MPA shall submit, simultaneously with the Operating Budget, a list of necessary personnel for the subject Fiscal Year. The City Manager shall have the right to approve or modify said personnel list, in his/her sole discretion, prior to its submission to the Miami City Commission for final approval. 4.2 Maintenance; Repairs; Casualty. The MPA shall properly maintain the Parking Facilities, and shall perform routine preventative maintenance in such manner, and at such times, that minimizes any adverse effect on the use of the Parking Facilities. The MPA shall keep the Parking Facilities in a neat and clean condition at all times, free of odors, debris, and trash. In addition to preventative maintenance, the MPA shall promptly repair or restore equipment, fixtures and other components of the Parking Facilities as a result of wear and tear or casualty of 'any nature. 4.2.1 Maintenance Tasks; Schedule. The preventative maintenance shall include the following tasks: a) Cleaning and janitorial services; b) Grounds services including lawn, shrub and tree maintenance and removal of any rubbish or obstructions from the Parking Facilities; c) Interior and exterior window cleaning to be performed as needed but no less than once every one hundred twenty (120) days; , d) Vermin control as necessary, but no less than once every sixty (60) days; and e) Painting of interior and exterior of buildings including caulking of all window and door frames, painting of signs, if applicable, and restriping of parking spaces in the Parking Facilities as necessary, but no less than once every four (4) years. 4.2.2 Wear Mitigation. The MPA covenants to mitigate wear on the Parking Facilities. ••Such wear mitigation shall include, without limitation, the operation ofthe Parking Facilities .,.,on_an"on Miami Ballpark Parking. Facilities Interlocal Cooperation & Lease Agreement Public Faciiities> Asset Management> Real Estate> Miami Ballpark Parking demand" basis (i.e., only opening those Structured Parking and Surface Parking facilities necessary to satisfy fluctuating demand and user convenience) consistent with Section 4.1.1. • • 4:3 Parking Fees. • Except' for those rates. established •by, and collected on behalf of, the Stadium Operator pursuant to Section 6.2(b) of the City Parking Agreement, the MPA agrees to collect from all Persons for the use of the Parking Facilities, the Parking Fees, as established and approved by the City, pursuant to any ordinance currently existing and as amended or supplemented, or newly adopted, by the Miami City Commission. The MPA shall not permit the use of the Parking Facilities by any Person without having first collected the Parking Fee, unless waived or modified by appropriate action of the Miami City Commission. 4.3.1 Fee Adjustments. The City, at its sole discretion, may adjust the Parking Fee at any time, and for as many times, during the Term of this Agreement. The MPA may submit to the City, and the City may (but shall not be obligated to) review, any proposed adjustments to the Parking Fee for consideration at least ninety (90) days prior to its proposed effective date. 4.3.2 Fee Collection. The MPA shall utilize all appropriate Revenue Control Devices to ensure the collection of all Parking Fees. The acceptable forms of payment shall be cash, check, or credit/debit/charge card. 4.3.3 Surcharges. The MPA shall collect, or cause to be collected, surcharges applied to the use of the Parking Facilities pursuant to applicable law. 4.3.4 Fee Management. All Parking Fees collected shall be managed pursuant to Article VI of this Agreement. 4.4 Priority Use. No provision of this Agreement shall be interpreted to impose a limit on the use of the Parking Facilities by the Stadium Operator, Team, Team Affiliates, Major League Baseball, other sponsors and promoters of events at the stadium, and their respective employees, guests, licensees and patrons, as the same is provided in Sections 6.1 and 6.2(a) of the City Parking Agreement, 4.5 Revenue Generation: Incentives. The City acknowledges that the MPA possesses certain revenue -generating experience in the operation of parking facilities, which experience may benefit the City. The City agrees to explore revenue -generating incentive programs to serve as compensation to the MPA for its efforts that result in an increase in revenues generated by the Parking Facilities. ARTICLE V: RETAIL FACILITIES 5.1 Purpose; Supplemental Revenue. The Parties agree that the Retail Facilities form an ancillary component of the Parking Facilities, and that the Retail Revenue is considered income supplemental to revenue derived from the operation of. the Parking Facilities. The Parties further agree, however, that the Retail Facilities form an essential component of the larger Ballpark project, a joint effort of the City, Miami -Dade County, and the Team. 5.1.1 Retail Facility Development. The Parties acknowledge that the Ballpark will, by itself function as a destination and serve as a draw to its surrounding area, attracting visitors from beyond the limits of the South Florida region. As such, the operation of the Retail Facilities shall be in such a manner that • r.:.v3c;•,•.,,.ye,:.,",>;..,:�y�:�d::;+,;,,;.; d(ai•ii'� ry^^�i:•�\59�f•:S,lr„a,.; - 12 - . . . .. Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities > Asset Management> Real Estate> Miami Ballpark Parking is harmonious with the larger Ballpark project. The Parties intend .for Retail Interests to be granted to Subtenants for the purpose of creating a 365-day/year-round retail and entertainment destination, open to the public, with 24-hour appeal. To further this intent, the Parties agree that the selection of Appropriate Subtenants necessary to create a cohesive mix of destination -type retail and entertainment establishments is vital for the successful development of the Retail Facilities. The Parties further acknowledge that the development of the Retail Facilities, as contemplated herein, will serve as an economic catalyst for the neighboring area, spurring growth opportunities for a larger mix of establishments to complement the Retail Facilities. 5.1.2 Subtenant Mix. The Parties agree that the Subtenant mix necessary to give effect to Section 5.1.1 shall include those Persons whose primary business model is similar to those establishments typically found near Major League Baseball ballparks and other major sports venues throughout the United States. The necessary Subtenant mix, as contemplated herein, shall further include those establishments typically found in the entertainment districts of similar large metropolitan areas (restaurants, bars, specialty stores), it being understood that said establishments do not include those which provide ordinary goods and services more commonly found in neighborhood shopping centers or other convenience locations. 5.2 Subleases & Other Interests. The MPA is authorized to grant Retail Interests to any Subtenant, as approved pursuant to Section 5.3, at any time during the Term of this Agreement. All Retail Interests shall be subject to and subordinate to this Agreement, and the duration of any Retail Interest shallnot exceed the Term of this Agreement. Except where the grant of a Retail Interest shall materially interfere with the MPA's obligation to operate the Parking Facilities under Article IV of this Agreement, the MPA covenants to grant Retail Interests, as approved by the City Manager, with dispatch; it being agreed that the generation of Retail Revenue shall not suffer any undue delay. 5.2.1 Non -Disturbance & Attomment.• The City agrees not to evict a Subtenant upon the cancelation or termination of this Agreement, provided that: a) the Subtenant's Retail Interest has been approved by the City Manager; • b) the Subtenant is not in• default under its Retail Interest; c) the Subtenant agrees to attorn to the City; and d) the City's acceptance of Subtenant's tenancy shall not. impose on the City any obligations more onerous than those unposed by this Agreement or the pertinent Retail Interest. 5.3 Appropriate Subtenants. Retail Interests shall be granted solely to Appropriate Subtenants, subject to the written consent of ,the City Manager, it being acknowledged by the MPA that the City is contractually bound by certain restrictions contained in the City Parking Agreement, more specifically Sections 6.6(a) through (g). To aid in the selection of Appropriate Subtenants, the City further agrees to perform;, or cause to be performed, all necessary credit, financial,, and background investigations of Appropriate Subtenants prior to selection. For purposes of this Section 5.3, "Appropriate Subtenant" shall mean any Person with the necessary credit, financial, and experience/background history to operate harmoniously within the Retail Facilities as contemplated in Section 5.1.1, with a business model as contemplated in Section 5.1.2, and subject to the minimum requirements as established in Section 5.4, including without limitation, the return of Fair Market Value. The Parties acknowledge that the City possesses the requisite experience and resources to negotiate the terms and conditions of, and prepare the 'instruments necessary for, a Retail Interest as contemplated in. this Article V. At all times during the Term hereof, the City . -- 13 Miami Ballpark Parking Facilities lnterlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking shall use said resources, by itself or through any third -party it may select at its sole discretion, to aid in the negotiation and preparation of Retail Interests. 5.4 Retail Interests; Minimum Requirements. All Retail Interests shall be in writing, subject to the approval of the City Manager, and the City Attorney as to form and correctness, and contain (or provide for), among other terms, the following terms and conditions: 5.4.1 Fair Market Value. All Retail Interests shall include provisions in any and all forms necessary, guaranteeing rent payments in United States currency that provide for a return of not less than Fair Market Value. For purposes of this Section 5.4.1, "Fair Market Value" shall mean the value that similar properties would bring in a competitive and open market under all conditions requisite to an arrn's-length transaction, the parties each acting prudently, knowledgeably, and assuming the established value is not affected by undue stimulus. Retail Interests shall be "net," with Subtenants being required to pay a .pro-rata share of real estate taxes, building insurance, common -area maintenance costs, and any other cost incidental to and arising out of a Subtenants use of the Retail Facilities. 5.4.2 Award of Retail Interests; Conflicts of Interest. Subtenants shall be prohibited, and shall warrant its compliance thereof, from employing or retaining any Person employed by the Parties to solicit or secure a Retail Interest, and from offering to pay, pay, or agree to pay any Person employed by the Parties any fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or resulting from the award of a Retail Interest. All Subtenants shall represent their awareness of, and covenant to compliance with, Article 5, Conflicts of Interest, of Chapter 2 of the Code of the City of Miami, Florida, as the same may be amended frorn time to time. 5.4.3 Security Deposits. Subtenants shall provide a deposit to serve as security for the payment of the Subtenants' obligations, covenants, and agreements contained in the Retail Interest. The Retail Interest shall further provide the Parties the right (but not the obligation) to apply all, or any portion of, the security deposit to cure a Subtenant's default, with the Subtenant being further obligated to restore the security deposit to the amount in effect prior to the default 5.4.4 Restricted Uses. The use of the Retail Facilities shall comply with all restrictions contained in the City Parking Agreement, as well as any other restriction as may be established by the City. TheRetail Interests shall further provide that all uses be in compliance with all applicable laws. 5.4,5 Games of Chance; Gambling Activities. If at any time during the Term hereof the operation of facilities for casino gambling activities, or other games of chance, shall be legalized within the corporate limits of the city of Miami, Florida, a Subtenant desiring to engage in such activity may seek all necessary regulatory approvals. All Subtenants must receive the written consent of the City, which consent may be withheld or conditioned at its sole discretion, prior,to seeking regulatory approvals. Any proposal for the operation of casino gambling activities, or other games of chance, as contemplated in this Section 5.4.5 shall cause for the recalculation of the Fair Market Value then in effect to account for such additional activities ("Casino Adjustment"). The method or methods for determining the Casino Adjustment, which by way of illustration and not limitation may include an appraisal, shall be at the sole discretion of the City. -14- Miami Ballpark Parking Facilities lnterlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking 5.4.6 Notice of Interlocal. All Subtenants shall be made aware of this Agreement. Subtenants shall provide to the City's Contract Administrator, a written acknowledgement of its receipt of notice of this Agreement. 5.4.7 Insurance. Subtenants shall comply with any and all insurance requirements as may be established, and amended from time to time, by the Risk Manager. The Parties shall be included as additional insured on all insurance policies, and said policies shall provide notice of coverage, and the cancellation thereof, no later than thirty (30) days prior to the effective date of any change or cancelation. 5.4.8 Indemnification. Subtenants shall indemnify, defend and hold harmless the Parties and their officials, employees and agents from and against all claims, actions, damages, liabilities and expenses in connection with loss of life, personal injury or damage to property, or any other cause arising out of its Retail Interest (except to the extent caused by the Parties' gross negligence). The Subtenant shall acknowledge that as lawful consideration for the grant of any Retail Interest that a Subtenant, on behalf of itself, its employees, agents and invitees, release the Parties from any legal liability from any and all claims for injury, death or property damage resulting from Subtenant's occupation of the Retail Facilities. 5.4.9 Alterations. The City Manager shall be given the discretion, in consultation with the District Commissioner, to consent to any alteration to the Retail Facilities, including the discretion to make a distinction between minor alterations or major alterations and set specific conditions relating thereto. Any such consent given by the City Manager shall be in writing. Written consent as contemplated in this Section 5.4.9 may include express consent granted in a Retail Interest. The Subtenant shall be required to obtain all necessary permits/approvals as may be required by law. The Retail Interest shall further state that the City Manager's written consent shall not constitute an opinion or agreement by the City that the plans and specifications of the contemplated alterations are structurally sufficient or in compliance with any laws, codes or other applicable regulations. 5.4.10 Utilities. Subtenants shall pay, or cause to be paid, all proper charges, including connection and tapping fees, for the use of gas, electricity, light, heat, water, sewer, telephone, protective services and other communication services, and for all other public or private utility services which shall be used, rendered or supplied upon in connection with the Retail Facilities. The City shall not be responsible for the failure of any utility which did not result from its gross negligence or intentional wrongful acts. 5.4.1 1 Access to Retail Facilities. Subtenants shall permit appropriate City representatives access to the Retail Facilities at all reasonable times the City deems necessary for proper purposes. 5,4.12 Hazardous Materials. No Person shall use, generate,' manufacture, refine, produce, process, store or dispose of, on, under or about the Property or transport to or from the Property in the future for the purpose of generating, manufacturing, refining, producing, storing, handling, transferring, processing or transporting any Hazardous Material. 5.4.13 Liens and Encumbrances. No Subtenant shall encumber their Retail Interest by mortgage, deed of trust, or other instrument which constitutes, or any security interest given in connection therewith which together constitute, an encumbrance or lien upon the Subtenant's Retail Interest as security for any loan without having first obtained the written consent of the City Manager, which consent may be withheld or conditioned at his/her sole discretion. The City Manager shall have the right to review and -15- Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking approve all documents related to such encumbrances or liens. In no event shall such security interests encumber the City's fee simple title to the Property. A Subtenant shall immediately, and within thirty (30) days, discharge or cause to be discharged, any security interest that encumbers the City's fee simple title to the Property. 5.4.14 Audit Rights; Records Maintenance. All Subtenants shall be required to maintain records on -site and for a period of not less than three (3) years, and the City shall have the right to inspect such records at anytime during the term of the Retail Interest, and for a period of not less than three (3) years following the termination or cancelation of the Retail Interest. 5.4.15 Audited Reports of Gross Revenues. The MPA shall cause for Subtenants to furnish to the City, on an annual basis, an audited report of gross revenues actually received by the Subtenant derived directly from business operations located on or initiated at the subject Retail Facility prepared according to generally accepted auditing practices and certified by an independent certified public accountant. 5.4.16 Nondiscrimination. Subtenants, for themselves and on behalf of their contractors and subcontractors, shall agree that it shall not discriminate as to race, sex, color, religion, national origin, age, marital status or handicap in connection with its occupation of the Retail Facilities. 5.4.17 Executed Documents; Notices. The MPA shall deliver to the City's Contract Administrator, an original executed version of all Retail Interests, including any amendments and addenda thereto, no later than five (5) days following the execution thereof. All Retail Interests shall include the City as a carbon -copied notice recipient, with all such notices being delivered to City's Contract Administrator, at the address designated in Section 9.2. 5.5 Subtenant Default. A Subtenant's failure to comply with the terms and • conditions of this Agreement, the City Parking Agreement, or its Retail Interest, and its failure to cure such noncompliance within a period not to exceed sixty (60) days after Receipt of notice thereof, shall be an event of default. In such event, the MPA shall exercise all remedies available to it in law and equity, which shall include without limitation, the immediate termination of the Retail Interest. 5.6 No Liability. In no event shall the Parties be liable or responsible for injury, loss or damage to the property, improvements, fixtures or equipment belonging to or rented by a Subtenant, its officers, agents, employees, contractors or subcontractors occurring in or about the Property that may be stolen, destroyed, or in any way damaged, including, without limitation, vandalism, theft, fire, flood, steam, electricity, gas, water or rain which may leak or flow from or into any part of the Property, or from hurricane or •any act of God or any act of negligence of any user of the Property or any Person whomsoever whether such damage or injury results from conditions arising upon the Property or upon other portions of the Property or from other sources. Any liability of the Parties under a Retail Interest shall be subject to the limitations imposed by Section 768.28, Florida Statutes. 5.7 Operation. The City shall have the option to operate and maintain, or cause to be operated and maintained, the Retail Facilities. Until such time the City exercises this option, and upon providing the MPA written notice thereof,'the MPA agrees to operate and maintain the .Retail Facilities similar to Sections 4.1 and 4.2. -16- Miami Ballpark Parking Facilities Intel -local Cooperation & Lease Agreeii'nt Public facilities> Asset Management> Real Estate> Miami Ballpark Parking 5.8 Agreement. Revenue Management. All Retail Revenue shall be managed pursuant to Article VI of this ARTICLE VI: REVENUE MANAGEMENT 6,1 Purpose; Intent. The Parties agree to utilize a uniform system of management for all revenues generated by the Facilities. The MPA acknowledges that the City has issued Revenue Bonds to finance its portion' of the larger Ballpark project and to meet its contractual obligations with Miami -Dade County and the Team. Revenues and expenditures made pursuant to this Agreement shall be subject to all applicable Internal Revenue Code Requirements and Revenue Bond Requirements. 6.2 Special Revenue Fund. There shall be established, and maintained by the City, a special revenue fund to be known as the "Ballpark Parking Facilities Special Revenue Fund" ("Revenue Fund"), for the deposit of: (a) Gross Pledge Excess; (b) Parking Fees; (c) Advertising Fees; (d) Retail Revenues; (e) funds collected for the recovery of other building and operating costs; and (f) any other revenue derived from the operation of the Facilities and collected by the Parties. 6.2.1 Sole Source. The Revenue Fund shall serve as the sole source of funding for the Combined Expenses. Except as may be otherwise authorized herein, the Revenue Fund shall not be used for any other purpose without the prior written consent of the City. 6.2.2 Tiered Sourcing; Source Priority. Funds deposited into the Revenue Fund shall be categorized in either one of two levels: (a) "Level A," which shall include all Net Pledge Excess, Parking Fees, and any other revenue derived from the operation of the Facilities and collected by the Parties; or (b) "Level B," which shall include all Retail Revenues'and Advertising Fees. 6.2.3 Insufficient Funds. During such times as the projected Level A and Level B revenues are insufficient to completely fund the budgeted Combined Expenses for a Fiscal Year, the Parties shall have the option to appropriate additional funds to the Revenue Fund, from such other sources as may be determined by the Parties at their sole discretion. The appropriation of additional funds pursuant to this Section 6.2.3 shall not be conditioned in any manner, and shall only be used according to the provisions of this Agreement. 6.2.4 Excess Funds. The Parties agree that all amounts in excess of the Combined Expenses that remain in the Revenue Fund shall be held to the City's credit, and may be removed from the Revenue Fund at the City's sole discretion. 6.2.5 Bond Obligations. Notwithstanding any other provision to the contrary, the City shall have the right to use all funds on deposit in the Revenue Fund, in such amounts as it may determine necessary at its sole discretion, to satisfy any outstanding Debt Service. 6.3 Revenue Collection. Combined Revenues collected pursuant to this Agreement shall be delivered to the City at the following address: Department of Finance Attn: Treasury Management/Receipts -17- Miami Ballpark Perking Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Asset Managenent> Real Estate> Miami Ballpark Parking 444 S.W, 2nd Avenue, 6th Floor Miami, FL 33130-1910 All checks shall be made payable' to the "City of Miami." Any of the Combined Revenues that may be collected by the MPA shall be delivered to the City, or deposited in any account or accounts as may be designated by the City Manager, no later than 5:00 p.m. of the day immediately following receipt. The MPA shall further deliver to the City, at the above referenced address, any and all advises and documents pertaining, but not limited, to counterfeit money, dishonored checks, and deposit corrections and the like immediately upon receipt. 6.3.1 Other Fees Collected. The MPA is authorized to collect other fees on behalf of the Stadium Operator; such other fees to be collected and managed according the terms of the City Parking Agreement. The MPA covenants to maintain records of all transactions managed on the Stadium Operator's behalf, and to include in the Monthly Report all details related to such transactions. 6.3.2 Cash Losses. All cash losses, including cashier shortages and those arising from the criminal acts of MPA's employees, shall be the responsibility of the MPA and reimbursed to the City. 6.3.3 Income and Expense Statement. The MPA shall include in the Monthly Report an income and expense statement that shall tie to deposits and expenditures and shall identify each revenue/expense category by line item with a month- and year-to-date result. Such statements shall segregate the Parking Facilities from the Retail Facilities, and shall be further segregated as may be requested by the City Manager. 6.4 Operating Budget. No later than ninety (90) days prior to the commencement of any Fiscal Year, the MPA shall submit to the City's Contract Administrator a budget of Combined Expenses ("Operating Budget") to be included as part of the City's annual budget process. The Operating Budget shall be in such format, with such detail, and with such supporting documentation, necessary to afford the City with the unrestricted ability to verify the amounts contained therein. Prior to its submission to the Miami City Commission, the City Manager shall have the right to modify the Operating Budget, at his/her sole discretion. As part of the City's annual budget process, the final approval of the Operating Budget shall be at the sole discretion of. the Miami City Commission. 6.4.1 Budget Preparation. The Operating Budget shall be based on the projected revenues of Level A and Level B funds. The Parties intend to solely use Level A funds for.the Combined Expenses. To further this intent, the MPA covenants to make all efforts to avoid Funding Deficits, and that should a Funding Deficit occur, the MPA shall prepare in good faith, and the City agrees to consider, alternate Operating Budgets which may include, without limitation: (a) reductions in Combined Expenses; (b) a contribution of Level B funds; and (c) reductions to the annual Facility CTCI. 6._4.2 _ Initial Budget, The Parties will create an Operating Budget for Fiscal Year 2012 _ _ within a reasonable time following the Effective Date, it being agreed that the Parties will make all legislative actions and amendments to their respective annual budgets, as may be required to give effect to this Agreement. -18- Miami Ballpark Parking Facilities Inlerloca) Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking 6.4.3 Budget Amendments. The MPA may request, and the City may (but shall not be obligated to) approve, amendments to an approved Operating Budget at any time during, and for a period of not more than sixty (60) days following, the then current Fiscal Year. Such an amendment shall serve as an amendment to City's budget, as approved pursuant to Section 6.4. • 6.4.4 Budget Increases. There shall be no "automatic" increase of Combined Expenses. For purposes of this Section 6.4.4, an increase is considered "automatic" when said increase is: (a) equal to, or greater than, three (3%) percent of the average annual expense for a period of five (5) Fiscal Years; and (b) is unaccompanied by supporting documentation justifying the increase. 6.5 Combined Expenses. The City shall reimburse to the MPA all Combined Expenses, pursuant to the respective annual budgets approved by the City, as follows: 6.5.1 Reimbursable Expenses. All Combined Expenses reimbursed pursuant to this Agreement shall be Generally Reimbursable Expenses. For purposes of this Agreement, a "Generally Reimbursable Expense" shall include: (a)•payroll wages and salaries; (b) federal, state and local payroll taxes; (c) licenses and fees as may be required by applicable law; (d) office supplies; (e) cleaning and custodial supplies; (f) Capital Improvements and other repair and maintenance of equipment not covered by warranties; (g) items purchased at the written request of the City Manager; (h) telecommunications services (excluding mobile communications); (i) audit costs, unless there is a discrepancy of three (3%) percent or more pursuant to Section 6.6.2; (j) insurance as may be required herein; and (k) any other expense as may be authorized in writing by the City Manager, pursuant to an approved Operating Budget. 6.5.2 Expense Invoices. The MPA shall provide, with the Monthly Report, an invoice indicating those actual Combined Expenses that have been paid by the MPA ("Expense Invoice"). The Expense Invoice shall be certified by a duly authorized employee of the MPA, whose identity shall be disclosed to the City's Contract Administrator prior to submission. Expense Invoices shall be accompanied with all such supporting documentation necessary to afford the City with the unrestricted ability to verify the amounts contained therein. The City reserves the right to use such means as may be appropriate to verify amounts claimed in Expense Invoices. Expense Invoices shall segregate the Parking Facilities from the Retail Facilities. 6.5.3 Reimbursement. Within thirty (30) days of Receipt of an Expense Invoice, the City shall reimburse to the MPA those Combined Expenses contained therein. 6.5.4 Invoices Disputed. Notwithstanding any other provision to the contrary, if any item of a Combined Expense is disputed or contested by the City, the City Manager shall submit to the MPA a statement, in writing, setting forth the items disputed with reasons therefor. The City shall not withhold reimbursement for all other expenses not disputed. The Parties shall, in good faith, diligently pursue clarification and resolution of any disputed expense within thirty (30) days of Receipt by the MPA of the _,written notice. The Parties covenant to exhaust the_proceduresset forth in this_ Section 6_5.4 before resorting to. . any other remedy. 6.5.5 Operating Reserve. Upon the full execution of this Agreement, and no.later than the fifteenth (15th) day following. the commencement of each.Fiscal Year thereafter, the City shall provide to the MPA an amount equal to three (3) months of Combined Expenses pursuant to an approved Operating Budget - 19- Miami Ballpark Parking Facilities lnterlocal Cooperation & Lease Agreenient Public Facilities > Asset Management> Real Estate> Miami Ballpark Parking for the then current Fiscal Year to serve as reserve funding for necessary operating expenses and maintenance costs ("Operating Reserve"). The use of Operating Reserve shall be in such amounts, and in conjunction with Expense Invoices, to ensure continuous operations throughout the Fiscal Year. The MPA shall immediately report the use of Operating Reserve on a Statement 'of Use to be delivered with the next scheduled Monthly Report. The allocation of Operating Reserve shall be exhausted prior to the end dead) Fiscal Year. 6.6 Annual Audit. The MPA shall deliver or cause to be delivered to the City within ninety (90) days after the end of each Fiscal Year, an audited statement of all gross revenues and expenses, as well as a letter certifying compliance with the terms of this Agreement and a management letter resulting from review of operations, internal controls and personal observations. Such financial statement, compliance letter and management letter shall be prepared and attested to by an independent certified public accountant licensed in the state of Florida. The financial statement shall be prepared in accordance with generally accepted auditing practices and shall contain an unqualified opinion of the Combined Revenues and expenses as defined by this Agreement. 6.6.1 Additional Audits. The MPA shall deliver or cause to be delivered such additional audits as may be requested by the City from time to time, or as may be required to satisfy Internal Revenue Code Requirements and Revenue Bond Requirements, including the furnishing of audits of financial statements related to revenues and expenditures generated at the taxable and tax-exempt portions of the Facilities. For purposes of this Section 6.6.1, the taxable portion shall refer to that portion of the Facilities financed by those Revenue Bonds considered taxable, and the tax-exempt portion shall refer to that portion of the Facilities financed by those Revenue Bonds considered tax-exempt. 6.6.2 Audit Discrepancies. An audit discrepancy shall occur where an audit, performed pursuant to Section 6,5, discloses a discrepancy greater than or equal to three (3%) percent of the aggregate approved Operating Budget for the Fiscal Year audited. An audit which discloses such a discrepancy shall not be a Generally Reimbursable Expense. ARTICLE VII: CAPITAL IMPROVEMENTS 7.1 Purpose. The Parties agree and understand that the expenditure of funds for the continued maintenance and improvement of the Facilities is a necessary and proper use of all revenues collected. The Parties further agree that the prudent use of revenue toward continuous Capital Improvements is necessary for the protection of the Facilities and its ability to (a) generate additional revenue; (b) satisfy Revenue Bond Requirements; and (c) satisfy other contractual obligations. 7.2 Capital Improvements Plan. The MPA shall, on an annual basis and no later than ninety (90) days prior to the commencement of any Fiscal Year, prepare a plan, for the City Manager's approval, of necessary Capital Improvements ("Capital Improvements Plan"). Without limiting the generality„ of the foregoing, Capital Improvements shall include lot resurfacing, structural repairs, the replacement of major equipment, and maj or ,painting projects. The Capital Improvements Plan shall include a list of scheduled • major improvements, as determined by the average useful -life of those improvements then existing. 7.3 Annual Contribution. The City agrees to appropriate, annually, a contribution toward Facility • Capital Improvements ("Facility CTCI"). Funding as provided in this Section••7.3 is contingent on the _20- Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement .Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking availability of funds and continued authorization of the Capital Improvements.Plan and other related activities contemplated in this Article VII. 7.4 Annual Budget.... ` The- MPA. shall prepare and submit,. simultaneously with the Capital Improvements Plan, a budget of necessary expenditures for Capital Improvements to be made in a Fiscal Year pursuant to the Capital Improvements Plan, to be included as part of the City's annual budget process. The annual Capital Improvements budget shall be in such format, with such detail, and with such supporting documentation, necessary to afford the City with the unrestricted ability to verify the amounts contained therein. Prior to its submission to the Miami City Commission, the City Manager shall have the right to modify the budget, at his/her sole discretion. As part of the City's annual budget process, the final approval of the budget shall be at the sole discretion of the Miami City Commission. 7.5 Performance. The MPA covenants to make, or cause to be made, Capital Improvements as listed in the approved Capital Improvements Plan. 7.5.1 Emergency Improvements. Notwithstanding the requirements of Sections 7.2 and 7.4, the MPA shall make, or cause to be made, any Capital Improvement that must be completed immediately and not listed in the Capital Improvements Plan to: (a) comply with a government -issued notice of violation or similar order; (b) protect public safety and welfare; (c) prevent unnecessary expense that would otherwise occur if the repair was not conducted immediately; or (d) ensure all necessary systems for the operation of the Facilities are functioning ("Emergency Improvements"). 7.6 Title to Improvements. All alterations, improvements, changes and additions made to or with respect to the Facilities in accordance with this Article VII shall remain upon and deemed to constitute a part of the Property, and the City shall have legal ownership of and legal title to all such alterations, improvements, changes and additions. ARTICLE VIII: INSURANCE 8.1 'Insurance Requirements: The Parties agree to maintain the following insurance: 8.1.1 Property Insurance. The City shall maintain a property insurance policy for the Facilities with such form and coverage limits as may be determined by the Risk Manager. 8.1.2 Liability Insurance. During all times throughout the term, or terms, of the City Parking Agreement, the MPA shall maintain insurance policies of the types and amounts listed, excluding property insurance, in Exhibit "D-2" of the City Parking Agreement. At all other times, during the Term hereof, the MPA shall maintain such insurance coverage as set forth in Exhibit "C," attached hereto and made a part hereof. All such insurance, including renewals, shall be subject to the approval of the Risk Manager (which approval shall not be unreasonably withheld) for adequacy of protection and evidence of such coverage shall be furnished to_t_he _City on Certificates of Insurance indicating such insurance to be in force and effect and providing that it will not be canceled during the Term hereof without thirty (30) calendar days prior written notice to the City, Completed Certificates of Insurance shall be filed with the City simultaneously with the execution of this Agreement, provided, however, that the MPA shall at any time upon request by the City Manager, Risk Manager, or the City's Contract Administrator, file duplicate copies of the policies of such insurance with the City, • -21- Miami Ballpark Parking Facilities Interlock! Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking 8.1.3 Insurance Proceeds. All insurance proceeds shall be paid and delivered to the City. " ARTICLE IX: ADMINISTRATION 9.1 Contract Administration. The Parties shall each designate for themselves a representative for the prompt and efficient administration of this Agreement ("Contract Administrators"). Until such time as the City Manager designates otherwise, the director for the Department of Public Facilities of the City of Miami, Florida, or its successor department, shall serve as the City's Contract Administrator. 9.2 Notices. Al] notices or other communications which shall or may be given pursuant to this Agreement shall be in writing and shall be delivered by personal service, or by certified mail, addressed to the party at the address indicated herein or as the same may be changed from time to time. Such notice shall be deemed given on the day on which personally served, or, if by mail, on the fifth (5th) day after being posted, or the date of actual receipt or refusal of delivery, whichever is earlier ("Receipt"). To the City: City of Miami, Florida Office of the City Manager 444 S.W. 2nd Avenue, 10th Floor Miami, FL 33130-1910 Attn: City Manager With copy to: Department of Public Facilities 444 S.W. 2nd Avenue, 3rd Floor Miami, FL 33130-1910 Attn: Director To the MPA: Department of Off -Street Parking 40 N.W. 3rd Street, Suite 1103 Miami, FL 33128-1848 Attn: Chief Executive Officer With copy to: Office of the City Attorney• 444 S.W. 2nd Avenue, 9th Floor Miami, FL 33130-1910 Attn: General Counsel Office of the City Attorney 444 S.W. 2nd Avenue, 9th Floor Miami, FL 33130-1910 Attn: City Attorney Notwithstanding the foregoing, periodic and ordinary course notices, deliveries and communications between the Parties may be given (and shall be considered given when provided) by any of the means set forth_above, __ _ and to the address or addresses provided by the City Manager to the MPA from time to' time. 9.3 Meetings. The Parties shall meet at mutually agreeable times and places to discuss performance and expectations under. this Agreement.„ Meetings .shall_,; occur on,,,a.,,monthly-basis, with_ participation by the Contract Administrators. -22- Miami Ballpark Parking Facilities lnterlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking 9,4 Monthly Reports. The MPA shall prepare and deliver to the City's Contract Administrator, no later than the twentieth (20th) day of each calendar month during the Term, a report summarizing all activity at the Facilities for the month immediately preceding,•in•a•fornrand format to be approved by the City Manager ("Monthly Report"). Monthly Reports shall be signed by the preparer and the MPA's Contract Administrator. The MPA covenants to reconcile any discrepancy in any Monthly Report within five (5) business days of discovery of the discrepancy. 9.5 Records Maintenance; Rights to Audit. At any time during the Term of this Agreement and for a period of three (3) years thereafter, the MPA shall maintain and the City shall have the right to audit, examine, review and copy all records relating to operations under this Agreement. 9.6 Disputes. MPA hereby acknowledges that the City's Contract Administrator will determine in the first instance all questions of any nature whatsoever arising out of, under, or in connection with, or in any way related to or on account of, this Agreement, including without limitation: questions as to the value, acceptability and fitness of the MPA's performance; questions as to either Party's fulfillment of its obligations hereunder; negligence, fraud or misrepresentation before or subsequent to 'execution of this Agreement; questions as to the interpretation of the requirements of this Agreement; and claims for damages, compensation and losses. MPA covenants to exhaust the procedures set forth in this Section 9.6 before resorting to any other remedy. 9.6.1 Prompt Performance. The MPA shall be bound by all determinations or orders and shall promptly obey and follow every order of the City's Contract Administrator, including the withdrawal or modification of any previous order. Where orders are given orally, these orders will be issued in writing by the City's Contract Administrator as soon thereafter as is practicable. 9.6.2 Right to Dispute. In the event that the Contract Administrators are unable to resolve their differences concerning any determination made by the City's Contract Administrator, or any dispute, question, or claim arising under or relating to this Agreement, either Contract Administrator may initiate a dispute in accordance with the procedure set forth in this Article. 9.6.3 Dispute Resolution. The Parties authorize an arbitration panel consisting of (1) the City Manager, (2) the chief executive officer of the MPA, and (3) a third -party mutually agreeable to the Parties, to decide all questions, disputes, or claims of any nature arising out of, under, or in connection with, or in any Way related to or on account of this Agreement (including but not limited to claims in the nature of breach of contract, fraud or misrepresentation arising either before or subsequent to execution hereof) (collectively, "questions" or "disputes"), pursuant to the procedures set forth in this Section 9,6. 9.6,4 Findings Conclusive. Pending final decision of a dispute hereunder, the MPA shall proceed diligently with the performance of the Agreement and in accordance with the City's Contract Administrator's interpretation:_MPA agrees that the final decision of the arbitration on an issue of fact shall be final and conclusive unless arbitrary, capricious, fraudulent or clearly erroneous. 9.6.5 Option to Resolve. The City Manager may, at his or her option, for any particular dispute, elect to forgo the dispute resolution proceduresherein and allow the .dispute to be otherwise resolved in accordance with law. -23- Miami Ballpark s'arking Facilities lnterlocal Cooperation & L.ease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking ARTICLE X: WARRANTIES AND REPRESENTATIONS 10.1 MPA's Representations. The MPA makes the following representations to the City: (a) The MPA is duly organized and validly existing under the laws of the State of Florida and has full power and capacity to carry on its business as presently conducted, and to perform its obligations under this Agreement. (b) The MPA's execution, delivery and performance of this Agreement have been duly authorized by all necessary legal actions and does not and shall not conflict with or constitute a default under any indenture, agreement or instrument to which the MPA is a party or by which the MPA may be bound or affected, except for such approvals required by this Agreement. (c) This Agreement constitutes the valid and binding obligation of the MPA, enforceable against the MPA and its successors and assigns, in accordance with their respective teens, subject to bankruptcy, insolvency and other similar laws affecting the rights of creditors generally. ARTICLE XI: MISCELLANEOUS 11.1 Recitals. The Recitals to this Agreement are true and correct, and are incorporated herein by reference and made a part hereof. 11.2 Entire Agreement. This instrument constitutes the sole and only agreement of the Parties, and correctly sets forth the rights, duties, and obligations of the Parties. There are no collateral or oral agreements or understandings between the Parties relating to the Agreement. Any promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect, This Agreement shall not be modified in any manner except by an instrument in writing executed by the Parties. 11.3 Recognition of Existing Agreements. The Parties recognize 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 Agreement and the documents governing same are hereby incorporated by reference and shall govern, if any provision of this Agreement is in conflict therewith. 11.4 Assignment, MPA shall not assign, transfer, pledge, hypothecate, surrender, or otherwise encumber or dispose of any of its .rights or obligations under the resulting agreement, or any interest in any portion of same, without the prior written consent of the City, which consent may be withheld by the City for,, any reason it determines to be in its best interest. 11.5 Amendment. No amendment to this Agreement shall be binding on either Party, unless in writing and signed by the Parties. 11.6 • • Successors.. This Agreement shall be binding. upon the.Parties.hereto, and their respective heirs, executors, legal representatives, successors, and assigns. - 24 - Miami Ballpark Parking Facilities Interlocal.Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking 11.7 Governing Law; Severability. This Agreement, and all matters relating to it shall be governed by the laws, rules and regulations of the State of Florida and Miami -Dade County, as are now in effect or as may be later amended or modified, without 'reference to the choice of law rules of any state. Should any provision contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida, then such provision shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable to conform with such laws, that same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect. MPA acknowledges that the City, as a public entity, is subject to Florida's public records laws, which makes all materials communicated to or from the City pursuant to this Agreement subject to disclosure under such laws unless specifically exempted from disclosure or made confidential. 11.8 Venue. All disputes arising out of this Agreement shall be subject to the exclusive jurisdiction and venue of the state or federal courts located in Miami -Dade county, Florida, and the Parties consent to the exclusive personal jurisdiction and venue of these courts. 11.9 Independent Contractors. MPA is performing the acts under this Agreement as an independent contractor and not as an employee, agent, partner, or joint venturer of the City. It is understood and agreed that each Party, together with its agents, servants, and employees, is at all times acting as an independent contractor, and that neither has any express or implied authority to assume or create any obligation or responsibility on behalf of, or in the name of, the other party. MPA shall satisfy all tax and other governmentally imposed responsibilities with regard to its own personnel, including, but not limited to, payment of social security taxes, workers' compensation, self-employment taxes, and all other payroll taxes. 11.10 Force Majeure. Each Party shall be excused for failures and delays in performance caused by war, governmental proclamation, ordinances, regulations, strikes, lockouts, explosions, supplier delays, hurricanes or other events beyond the reasonable control and without the fault of such Party. In the event of any such Force Majeure, this Agreement shall be extended for the period during which either Party is prevented from performing any material portion of this Agreement. This section shall not, however, relieve any Party from using reasonable efforts to remove or avoid any such events, and any Party so affected shall 'continue performance hereunder as soon as reasonably practicable whenever such causes are eliminated. Any Party claiming any such excuse for failure or delay in performance shall give notice thereof to the other Party. 11.11 Non -Discrimination. In connection with the performance of work under this Agreement, the Parties agree not to refuse to hire, discharge, promote or demote, or to discriminate in matters of compensation, against any person otherwise qualified on the basis of race, color, religion, nation origin, gender, age, military status, sexual orientation, marital status or physical or mental disability; and further agree to insert the foregoing provision in all subcontracts related to the performance of this Agreement. 11.12 Judicial Interpretation_ Should the provisions of this Agreement require judicial or, arbitral interpretation, it is agreed that the judicial or arbitral body interpreting or construing the same shall not apply the assumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that an instrument is to be construed more strictly against the party which itself or through its agents prepared same, itbeing agreed that theagents of .both ,parties ...have, equally participated in the preparation of this Agreement. -25- Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities > Asset Managenent> Real Estate> Miami Ballpark Parking 11.13 Captions; Headings; Sections. The captions and headings in this Agreement are for convenience only and are not a part of this Agreement and do not in any way define, limit, describe or amplify the terms and provisions of this Agreement or the scope or intent thereof. Reference to one section shall include all subsections (i.e. Section 1.4 shall include Sections 1.4.x, 1.4.x.y, etc.), and vice versa, and shall be read as a whole. 11.14 Conflicting Terms. Except for those terms contained in the City Parking Agreement, in the event of conflict between the terms of this Agreement and any terms or conditions contained in any attached documents, the terms of this Agreement shall govern. 11.15' Waiver. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. 11.16 Third -Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to (a) confer upon any Person, other than the expressed Parties herein, any rights or remedies under or by reason of this Agreement as a third -party beneficiary, or otherwise; or (b) authorize anyone not a party to this Agreement to maintain an action pursuant to or based upon this Agreement. 11.17 Time of Essence. Time shall be deemed of the essence on the part of the Parties in performing all of the terms and conditions of this Agreement. [S'IGNATURES APPEAR ON FOLLOWING PAGE] - 26 - Miami Ballpark Parking Facilities lnterlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking IN WITNESS WHEREOF, in consideration of the mutual entry into this Agreement, for other good and valuable consideration, and intending to be legally bound, the Parties have executed this Agreement as of the date first above written. DEPARTMENT OF OFF-STREET PARKING of the City of Miami, an independent agency and instrumentality of the City of Miami, Florida ("MPA") ATTEST: By: By: Arthur Noriega, V Chief Executive Officer ATTEST: CITY OF MIAMI, FLORIDA, a municipal corporation of the state of Florida ("City") By: By: Priscilla A. Thompson Johnny Martinez, P.E. City Clerk City Manager APPROVED AS TO INSURANCE APPROVED AS TO LEGAL FORM AND REQUIREMENTS: CORRECTNESS: By: By: Calvin Ellis Julie O. Bru, Esq. Risk Manager City Attorney - 27 - Miami Ballpark Parking Facilities Inter16.;a1 Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking EXHIBIT "A" The Property 1. North Structured Parking (P1 and P2): Tract A of STADIUM'PLAT, according to the plat thereof, as recorded in Plat Book 168, at page 25 of the Public Records of Miami -Dade County, Florida. AND Lots 3 and 4, Block 34 of LAWRENCE ESTATE LAND CO'S SUBDIVISION, less the North 10 feet thereof for road right of way purposes, according to the plat thereof, as recorded in Plat Book 2, at page 46 of the Public Records of Miami -Dade County, Florida. 2. South Structured Parking (P3 and P4): Tract D of STADIUM PLAT, according to the plat thereof, as recorded in Plat Book 168, at page 25 of the Public Records of Miami -Dade County, Florida. 3. West Surface Parking (W 1): Lots 1 through 4, less the North 10 feet thereof, Lots 5, 6, 13 and 14, less right of way for N.W. 17th Avenue, and all of Lots 15 through 18, Block 35 of LAWRENCE ESTATE LAND CO'S SUBDIVISION, according to the plat thereof, as recorded in Plat Book 2, at page 46 of the Public Records of Miami -Dade County, Florida. 4. West Surface Parking (W2): Lots 1 through 3 and Lots 16 through 18, Block 36 of LAWRENCE ESTATE LAND CO'S SUBDIVISION, according to the plat thereof, as recorded in Plat Book 2, at page 46 of the Public Records of Miami -Dade County, Florida. 5. West Surface Parking (W3): Lots 1 through 18, less right of way for N.W. 17th Avenue, Block 45. of LAWRENCE ESTATE LAND CO'S SUBDIVISION, according to the plat thereof, as recorded in Plat Book 2, at page 46 of the Public Records of Miami -Dade County, Florida. 6. East Surface Parking (El): Lots 8 through 13, Block 39 of LAWRENCE ESTATE LAND CO'S SUBDIVISION, according to the plat thereof, as recorded in Plat Book 2, at page 46 of the Public Records of Miami -Dade County, Florida. 7. East Surface Parking (E2): Lots 9 through 12, Block 42 of LAWRENCE ESTA IB LAND CO'S SUBDIVISION, according to the plat .thereof, as recorded in Plat Book 2, at page 46 of the Public Records of Miami -Dade County, Florida. r�• 8. East Surface Parking (E3): Exhibit A/Page I of 2 Miami Ballpark Parking Facilities lnterlocal Cooperation & Lease Agreement Public Facilities > Asset Management> Real Estate> Miami Ballpark Parking Lots 5 through 8, and the North 100 feet of Lots 9 and 10, Block 49 of LAWRENCE ESTATE LAND CO'S SUBDIVISION, according to the plat thereof, as recorded in Plat Book 2, at page 46 of the Public .Records of Miami -Dade County, Florida. Exhibit A/Page 2 of2 Miami Ballpark Parking Facilities lnterlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking EXHIBIT "B" The Facilities I j I ! i { I, •! ! I SfiRFACELOTW2 — 7810 NW Ck _ SURFACE LOT W.3 ` -- ({ _'-' 1880NW ETU ST I i -jjEfiaLU 7PZI 7.2 L. =tI _ l H __— _ NwyROSi .. .. .•:: —o n— . I! ,1'11!1tiI i � � _ ,< . � 1� t e.� OYERAi:SITE PLAN ..r.. (1i 1111ltlu T PARKING • RAGE P1 1502 ?IW MI STREET PARKING -GARAGE Pj 1402 NW TTH STREET BASEBALL STADIUM PARx1N2- AI3AG - 1502 NW 4TH STREET PARKING GARAGE,E_4 1402 NW 4TH STREET rnrrrrI(IIiIfITi ICII r I ill 1 J1 i li lgli 1 fall Ilan ! ititroWii __]__•---_�___ .. S%RFACEV OTE-4 1'it _ 11380 NW ETH ST iu �" ,—I �.-1 t 11 e 1 :i STADIUM SITE PARKING CITY OF MIAMI B-111G4H LEDA DALY ICIIIII4.1.{AIMPITIn MC. PERMIT SET nMw ..ro-u.0 AC 41111.1.14 A0.01 NW 7TH STREET ?Agar F ! - '' '' I itg t. I. rit it I • •-•••-, ------ - A&iI S. i•—• A z f. 4 -A....i.iA-.. \‘.._ 3 3.1' ----i—'''''C----i'7-1.--i — ----1---7::W=6=6:---=-0,=:,s-ofzra.v. • 0 -,,, ,,,,......,-, —.--- .---x,...,-........,„4:4, 0 ,;,-,, , ....AitiS--• ,,,,,,...,,,,,r,,,,,, \ \ \ 1 • 1 \ \ ----t . 1 ' / \ __\O ( . \ O ( 7 \ V (:) 0 0 0 0/ 0 0 / (..s. MOW. FLOM 1355130E12 VATEM1,22030G Terf DA AND 7,c1 ‘1,431,31-LysTOP EAMIER PAM. AT ArimArEp inZIE 1E4 5.33,51.2 LVEL3 A LEVCL 3 11)TALS ALAI Ai (7, MARGE) WE PUN • P1 PARKING GMAGE".” P1 PARKING STALL TABULATION SA.135A10 22A 235 100 TA2 7C3 ,VOADVAA ACCVSSIXE 15 15 23 20 53 51 2A? 25T 233 lea 951 STADIUM SITE 7 PARKING 11101 CITY OF MIAMI ' 8:Z31133 LEDA DAV azt7-7-7 .23.51,55 521131(1503 j". PERMIT SET 14, 5.4553,315.5 flAdrin AAplAwArlArdiir, nn.,nr. A0.02 Jf i-- 1929.99TES • i .9M, . . „,13.9.9111.9.94.rEP, • REZM TO F9,9. irtvpzr i Fri neFwo srsrsx. • TURN LANE 1. --,-- — ------. — 21..-,....,_ 1 .4f.,1.49",,:p,...15.7.9.00F9'.:44;" la '9.w.,,,,47.4",,LF,1 - -Flj -.PFF4444,49T.11-' g3- '.1..".4'Z'_,jffl'•,t...i_2_,?'' ' 'PA . ":',13b2It4.4.3ifil -',...11 ',F3:1,9"F.L.',2;6• :7Ftti- :11, - 44855PL7',:i9TVgl. -9,9ji, . :....,_3.,..vsnm .....„ . is -. . _ 1' " - .. .. . , . .., ..._..... ."_:. '_.'. " :: -. ,.........:....„ _ • z m a 3, < m m ['Pot's." 99,229,299pezze • TV.; 247,' (11,19 T.000/0 0 0 000 000 0 0 al 0 0 T. 0 an 29 4 '4 4 4 4 4 4 an% „,. , . ..... %-. .....,,.--- :::—.,-----....-..,...,.,..:-,,,,_..--,c,,,,a9p,,res:49feAtvf-.. - - ••=7-771-------,4,',4‘,Ft9,,,,,,o,i'.9..,91,,A.1.-,-,:- •- .4-,v099:4119§w4,17:--7- 447.,,,,t,,..+1.-. ..'„,..,..,,,=.7..-..---=-==......."..-=—.-,..'t..;.-t....,.=-,,,,,,,....... ..;-.7,-,,..7.ir.3.,--- -7.-..;.S.4;....---,,i -,-..;,--=......,—.--='-',7 -.-=-''.. --.. ..... -..- ... - .- ..- -..- ...-... -.... ....— _ - ._ .—.. _..• __::".../NW 11-1W-7 ..-. • - --7::::::--:::- :./e.•_-_:... .._17:j...:::::::":".=::\\:7_21==::::: 1 \ / 4... "—I I ° ° I i r71 ° 1 i ///////// rr m SIMPOE FLOOD eznmen WATCPPROOPP15595711 PEACVABLE FLOOD OVUM:A PrVELS At i 1 1 i I i i 1 , H I i , 71, 1 \ ,--:4•1 .•_. ___.,, r"" t i I of; CIL OEN_UlnED SITE FLAN .. P2 PARKING GARFGE 4F P2 PARKING STALL TABULATION Sia+DAPP ACPETPAILE ACCEVP249 Pay 993 299 79 135 302 21 329 LEPEL] 331 331 327 cAvELS 292 227 222 1220 2z: IPCICLA SPACES 159 STADIUM SITE PA MOND CITY OF MIAMI LEDA DAU CIVISIONS TILE 20C PERMIT SET I .4.115E.1 _ — NW 3RD $T 71111—je 11-11 ''t71 rqouloc Plow etAntrt MATEO/MOWING ,STEA. ASO REAASNAISLO ROOD SAMOS /WS. AT 00SLMAOLESPACESANCOO AREAS AIDCATE0TuAT•oEMLOWOME AO, CAN.__UnD SITE PLAN -P3 PARIONG GARAGE 41th P3 PARKING STALL TABULATION MANDICAP ACCESAULE VAN ACCOSSELE LEVEL I LSVEL SAS LEVE1.1 717 :ST LEVEL LA7 LSSL S LEVEL 6 taa VAC IVA AS OAV DOCCIS OAAC. o AUTURESolCES STADIUM SITE PARKING OF MIAMC 8-30548 1..EDA DAE/ OW I. AMOR,. 4 WOG. L.A. L=. MOONS Olt LOC PERMIT SET NOArAO AOOAL:401 AO.04 EXHIBIT "C" City Insurance Requirements I. Commercial General Liability, A. Limits of Liability: Bodily injury and property damage liability Each Occurrence $1,000,000 General Aggregate Limit $2,000,000 Personal and Advertising Injury $1,000,000 Products/Completed Operations $1,000,000 B. Endorsements Required: (1) City of Miami included as additional insured (2) Primary Insurance Clause Endorsement (3) Contingent and Contractual Liability (4) Premises and Operations Liability II. Business Automobile Liability A. Limits of Liability: Bodily injury and property damage liability Combined Single Limit Any Auto, Owned or Scheduled Autos Including Hired, Borrowed or Non -Owned Autos Any One Accident B, Endorsements Required: (1) City of Miami included as additional insured III. Worker's Compensation A. Limits of Liability: Statutory -State of Florida Waiver of Subrogation $1,000,000 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 employee $1,000,000 for bodily injury caused by disease, policy limit IV. Umbrella Policy/Excess Liability (Excess Follow Form) A. Limits of Liability Bodily injury and property damage liability Each -Occurrence —. _..__..___.__—_.—. _$5;000;000 Aggregate $5,000,000 B. Endorsements Required: ,(1). City.of.Miami included as additional insured Exhibit C/Page 1 of 2 Miami B; llpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking V. Garage Keepers Legal Liability A. Limits of Liability $2,000,000 B. Endorsements Required: (1) City of Miami included as additional insured VI. Crime Coverage A. Limits of Liability B. Endorsements Required: (1) City of Miami listed as loss payee $1,000,000 The above policies shall provide the City with written notice of cancelation or material change from the insurer in accordance to policy provisions. 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 V" 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. Exhibit C/Page 2 of2 Miami Ballpark Parking Facilities ln;^.rlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking EXHIBIT "D" City Parking Agreement CITY PARKING AGREEMENT 'This City Parking Agreement (this "Ag eeaient") is made and entered into this ' day of April, 2009 by anr] among.the City of Miami, a municipal corporation of the State of lorida (the "City"), Marlins Stadium Operator, LLC, a Delaware limited liability company he "Stadium• Operator"), and solely for the purposes of the County Provisions (as defined in Ai cle I), •Miarni- _D0e Coprty, a.po]itical.subdiuisi.on .of..th.e State of Florida (the "County," and .gether with. the City and the Stadium Operator, the "Parties"), • RECITALS A. , • On March 3, .2008, the.County, the City and Florida arlins, L.P. executed' a Baseball Stadium Agreement (the "BSA") outlining .the general t ns and conditions under • which they would move forward to design, develop, construct d operate a Major League Baseball stadium and related parking facilities .to be located, oche Entire Site. • ,.(Capitalized - terns used herein are defned•in Article I.) • B. Contemporaneously with the execution .of this Agreement: (i) the County, the City • and the Stadium Developer are entering into the Constr don Administration Agreement that provides for the design, development and construction the Baseball Stadium and the Public infrastructure (as defined in the Construction Adninis fation Agreement), and (ii) the County, . the City and the Stadium Operator are entering into te .Operating Agreement that provides for the operation and inanagenrent of the Baseball S diuin by the Stadium Operator once• the Baseball. Stadium has• been constructed as pr9 'ided in the Construction Administration Agreement. • C. This Agreement provides for t1le construction, operation and use •ofparkm:g facilities to be made available to users of the 'aseball Stadium. . NOW, THEREFORE, the Parties. q, -ee as follows: ARTICLE I DEFINED TERMS As used in this Agreement he following teens have the following meanings: "AAA" is defined in Se Iron 10.1. ti "Affiliate" means, wi respect to any Person, another Person that directly or indirectly owns or controls, is owned r controlled by, or is under common control with such Person. For _-.. ��urposes-o.f t1.1.is_d.efrai.li.orl one_P_erson_omens_ano.ther-when_i.t_o_wns_more than_fiift_y..per.cent._(5.0%0).__ . of the equity interests in le other Person and one Person "controls" another when it has the right to exercise more than f ty percent (50%) of the voting power of the other Person. ."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 Govenamental.Authority having jurisdiction with respect to the Parking Premises or to Persons -or activities -within the Parking Premises, now existing or hereafter 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 Lea (ae Baseball Clubs and the Major League Baseball Players Association, and each agency agreement and any operating guidelines among Major League Baseball clubs and Major League Baseball; and (ii) any present and future mandates, rules, regulations, policies, interpretations, bulletins or directives issued or adopted by Major League Baseball applicable to Major League paschal) 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 Co inty. "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 clay 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 tei porary or permanent, issued by the City's building official permitting public occupancy and us0of 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, developm¢nt, construction and equipping of the Parking facilities in accordance with the terms of this Agreement, "City Parking Site" means the areas of land depi9led as such on Exhibit A. "City Personnel" is defined in Section 11.7. - - -----__—"City RFj5r�ese—ntativ.e"-zshiaed-iri-Secfioia k771 : "Claim" is defined in Section 9.3. -"Commission".ineans the City Commission of the City of Miami. 2 "Construction. Administration Agreement" means the Constructi on 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 X1. "County'Representative" is defined in Section 11.11: "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 10..2. "Expedited ADR Dispute" is defined in Section 10.2. "Force Majeure" means a War, insurrection, strike or lockout, riot, 1unibane, flood, earthquake, fire, casualty, act of God, act of the public enemy, epidemic, gtaarantine 'restriction, freight embargoes, lack of transportation, governmental restriction, court ider, unusually severe Weather, act orthe failure to act of any public governmental agency or Entity, terrorism, or any Other cause in each Case (including the events specified above) bey . ad the reasonable 'Control and without the fault of the Party claiming an excuse from perform i ce; provided, however, that any Force Majeure involving or relating to County or City gone 3]nental restrictions or_acts or failures to act of any County or City agency or entity shall not • lieve the County .or City, as the - case may be, of their obligations under this Agreement unles the failure to act is as a result of another Force Majeure event beyond the reasonable coati l and without the fault of the Party claiming an excuse from performance. "Goverment lndernnitee" is defined in Section /9.1(a). ear each of the Co a4 i and the City. "Government Party"rn . as , � y "Governmental 'Authority" means ai ' federal, state, county, municipal or other govemmental-department; entity,—author7ty; mmission,board—bureau; court; -agency,, or -any instrumentality of any of there. • "Incremental Labor Costs" shall fiaean the actual labor costs incurred by the City in. the staffing of the Parking Facilities fora tadiunaEvent (other, than a regular season MLB Home Ganie) at staffing levels determined i3 -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 he Parking Facilities for dates other than Stadium Events, soccer events or other extraordinary events. "Indemnified Party" is defined in Section 9.3. "Indemnitor" 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., Majoi League Baseball Properties Canada, .Inc., Major. League Baseball Productions, MLB Advanced Media, Inc., MLB Advanced Media, L.P., MLB Media IJoJdings, L.P., MLB Media IZp'�dings, Inc., MLB Online Services, Inc., each of their respective present and future affiliai , assigns and successors, and any other entity owned equally by the Major League Baseball cl 1 s. "Major Sponsor" means a Person that spends at least the followii/ g amounts in any applicable Operating Year with the Team Affiliates (collectively) for Aclv9Itising (as defined in the Operating Agreement) or other rights or benefits relating to the Teaiai Affiliates and/or the Baseball Stadium:.(i) $500,000 in any of Operating,Years l -] 5, (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 Ad Ministration Agreement. collectively, MLB Home Games al tMLB Jewel Events. MLB Events"means, Home Gaines"means each of "MLB he the Team's s ]iedu1ed or rescheduled baseball a games at the Baseball Stadium, including exhibition, spring t aining, 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 Leagu Baseball -controlled events expected to have an attendance of more than 5,000 people schedule or rescheduled at the Baseball Stadium. "MLB Reserved Dates" means all dates (x) o3, which MLB Events have been scheduled (or rescheduled) or (y) that the Team is required t reserve for the scheduling of MLB Horne Games (including potential post -season games) or MLB Jewel Events under MLB Rules and Regulations, "MPA" means the Department of Off-Str et Parking of the City, d/b/a the Miami Parking Authority. "Neutral" is defined in Section 10.2. "NDZs" means the areas 'that h fve been designated in the City's Community Development Plan as'Neighborbood.Develo iinept Zones. The-NDZs have bee 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.T am, . • the County and the City dated as of the date of this Agreement, as it may be amended and/or restated. . • • "Qperating Agreement" means the Operating Agreement among the County, ire. City and the Stadium Operator .dated as of the date of this Agreement,• as it may be amp/ended and/or restated. "Operating Standard". is defined in Section 5,1(f), "Operating Year" means (i).the period. commencing on the Substav ial Completion Date and ending on the next succeeding October 31 and (ii) each subsequent tw//6lve (12) month period during the Tenn commaenciag°on the November 1 following the Substan / at Completion Date and ending on the next succeeding October 31; provided that if this Agre rent terminates on a date other than October 31). there shall be a partial last. Operating Year riding on the date of such terininati on. "Other Development" is defined in the.Constrvction Adn nistration Agreement. "Other Events" means Stadium Events that are not ML. Events. "Parking Architect" is defined in Section 4.1. •"Parking Criteria" is defined in .Article 11. • "Parking Design Documents" paeans, collective y, (i) the schematic design documents of' 'the Parking.Facilities,'as •may be amended from time O time in accordance with this Agreement, illustrating the scale and relationship of the compon 'its of the Parking Facilities,.(ii) the design development document'of the Parking .Facilities, as may be amended from time to time in accordance with this Agreement, based 'upon and •efining the schematic design documents set forth in clause (i), illustrating the scope, relations] ip, forins, size and appearance of the Parking Facilities by means of plans; sections and elevati xis, typical construction details,' and equipment layouts and architectural drawings, and (iii) the nal 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. "Parkin_ Develo Anent Re uirement " is defined in Section 4.2(a). "Parking Facilities" is defined in At ele Il, "Parking Final Completion" means the occurrence of all of the following: (i) the Parking Architect has signed 'and ;delivered to tl. e. City and. the. Stadium Operator a .certificate of final completion, (ii) a penrianenl Certificat of Occupancy has been issued with respect to the Parking Facilities, and (iii) punch list iteZ s have been completed; . • . • 0 "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: (y the Parking Architect has signed and delivered to the City and the Stadium Operator a cer nccate certifying that the Parking Facilities. have been substantially completed subject to the corWetion of minor punch list items that do not materially affect the use of the Parking Fa pities as contemplated by this Agreement, and (ii) a temporary or permanent Certificate of Occi. anc), 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, corz(oration, limited liability company, trust, public body, authority, governmental unit or other enti 9, "Promotional Rights" is defined in the Operating Agreement, al d shall include all Revenue Rights referred to therein. "RFP" means the solicitation documents for the procurem/nt of a contractor or construction manager for the performance and management of the c9 tri ction of the Parking Facilities in accordance with Applicable Law. "Signage" means all signage (whether permanent or .terh orary) in or on the Parking Premises, including banners, fascia boards, displays, message cer ers, 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 reed eating such Signage. "Small Business/Local Workforce Goals" means th local businesses and workforce goals to be included in the RFP to be issued by the City Aor" the development of the Parking Facilities as provided in Section 4.3.. "Stadium Agreements" means, collectively, /this Agreement, the Construction Administration Agreement, the Operating Agreement, )he Non -Relocation Agreement, and the Assurance Agreement. / ' "Stadium and Parking MUSP" is defined in t»e Construction Administration Agreement. "Stadium Developer" means Marlins Stadium Developer, LLC, a Delaware limited ""---lahilty co9arjraiy, aild its �sei�lxitted successor's a,�lld-assi-grrs:—"—"---- "Stadium Event" means any event hel i' at the Stadium Premises, including: MLB Home Games; MLB Jewel Events; Team practices, exhibitions, clinics, promotions and fan activities; and other -professional' br'• amateur sporti g events or ..exhibitions, concerts, ti ade shows, .conventions, general audience, family or other targeted audience shows, performances or 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 lifbility • company, and its successors and assigns permitted under Section 11.9(a). / • • ..."Stadium Operator.Default"..-is.d.efined in Section S•1. . "Stadium Operator lndernnitee" is defined in .Section 9.2(a), • "Stadium Operator Personnel" is defined in Section 11.6. "Stadium Operator Representative" is defined in Section 11.11. "Stadium Premises" is defined in.the Operating Agreement. . . "State" means' the State of Florida. "Substantial Completion Date" is defined in the Operating A . cement. "Surface Lots" means the surface parking lots to be con trusted by the City on the City Parking Site as described in the Parking Criteria. "Team" means Florida Marlins, L.P., a De}aware li cited partnership, and its permitted successors and assigns.. • "Team Affiliate" means the Team, the Stadium • )erator, the Stadium Developer and any other entity that is an Affiliate of the Team.. "Term" 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 cau?e to be constructed, on the City 1'.arking Site, Parking Structures and Surface Lots .(together, Ale "Parking Facilities") that will include approximately . 6,000 (subject to Section 4.8) panting aces held:for use as provided in this'Agreement, and will operate--and-provide-access-to-such-P�r-lcing Facilities .on--the•-terms--set-fo tl� in-tl�zis-Agreement- The general configuration, layout and design features of the Parking . Facilities are more particularly described in .the Parl ng Criteria attached hereto as Exhibit B (the "Parking Criteria"), and will be reflected. i r the Parking Design Documents. The City estimates the •construction' cost of•t?ze Parking F ci�lities at•$94 million: •The;Pai-ties aerknowledge that the' City will 'not use ad -valorem revenues to fund'•constructio• n, o'th,e Rarking,;Faciliti,es,rg,a.nd.4.he.,,Pa-ties •;•••• c. 7 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 Tenn. The tenn of this Agreement shall commence on the date hereof and shall expire on October 31 in the year in which the twentieth (20th) annual anniversary of the Substantial Completion Date occurs, unless sooner terminated pursuant to any applicable provision of this Agreement (such.tenn 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 ptions toExtend .Tenn; The Stadium Operator shall have the option (but not/the obligation) to extend the Tenn on the sane terms and conditions set forth in this Agreementfor (a) an additional term of ten (10) years, and (b) if so extended pursuant to clause (a), a f ri-ther additional tern. of five (5) years. The Stadium Operator shall exercise its option to extecl the Term by delivering written notice of such exercise to the City no later than three hundre, sixty- five (365) days prior to the expiration of the initial Tern or any extended Tenn, as applic ble. 3.3 Termination. Notwithstanding anything to the contrary in this Agreement, this Agreement shall terminate with respect to the Stadium Operator upon the tennina ion of the Operating Agreement. Upon any early termination of the Operating Agreement / ursuant to Article XVII thereof, the County shall have the right, at its sole discretion, within80 calendar days following the early termination of the Operating Agreement, to elect to assum,, the Stadium Operator's rights and obligations under this Agreement for the remainder of the `_ erm. or such earlier date upon which title to the Baseball Stadium Site may revert from the ounty to, or. at the direction of, the City pursuant to the Warranty Deed referred to in tl e Construction Administration Agreement; provided, however, that upon expiration of such 1 0 day period, if the County is able to identify a replacement tenant who fits the criteria set fort) in the Warranty Deed prior to the reversion of the Baseball Stadium site back to the City, the tovernment Parties agree to negotiate in good faith with such replacement tenant to enter ito a new parking agreement. . ARTICLE IV DESIGN AND CONSTRUCTION OF PARKING FAC.LITIBS 4.1 Design. The City shall manage -and control the design of the Parking Facilities, including the hiring of an architect (the "Parkin, Architect"), and their. construction, (a) to support a forty (40)-minute maximum empty time; (b) in conf •rnity with (i) the Parking Criteria, (ii) the terms of this Agreement and the other Stadium A •cements, (iii) the functional requirements of the Baseball Stadiuin as contemplated in th Construction Administration Agreement and the Operating Agreement, and (iv) Ap,I ica—b]e aw; and (c) in a manner the is architecturally harmonious with the Baseball Stadium and oes not contain highly reflective materials facing the Baseball Stadium ((a)-(c), the "Desi n S ndards"). The Stadium Operator Representative and the County Representative shall each ha '.e tl.e right,to,r•eview., comment upon and approve each of the Parking Design Documents, provied such review and approval (1) shall :be limited to their confirmation that the applicable Parking Design Doeuri?eiats ai:e' 'con.forxriity 8 with the Design Standards, an�.(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 the Design .Standards.. Ira such event, the objecting Party ;shall provide to the City detailed coin nents .setting, forth the reasons that it has detenninecl that the applieable..Parking Design Document. is' not generally. consistent in all material respects with the Design Standards, If, within such ten (10) Business Daypenod, the Stadium Operator Representative or the County Representative do not properly object to the Parking Design Document asset 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 P,arlcing Design. Document as.non-conforming,then the elements to which they do not object sha1V'be • deemed approved. if the City disagrees' with •any of the objecting Party's comment/ the objecting Party and the City shall use good faith efforts to resolve any .suer objections/and, if applicable, revise the Parking Design Documents; in an expeditious manner so as not to f y the production of the Parking Design Documents or the City.Parking Project. The City small cause the Parking Architect to revise the applicable Parking Design Documents to as dress any comments raised by the County Representative or Stadium Operator Represeiltativ with which . the City agrees and sliall .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 Represen tive shall have - five (5) Business, Days from the receipt of the revised Parking Design Docum is to review and • approve them. The failure of the CountyRepresentative or Stadium Operate) Representative to . respond within such five (5) Business Day period shall be deemed appro\ €1. If. the objecting • Party and the City are not able to •resolve any disagreements under this,'ecti.on 4.1, either of there may file for Expedited .ADRpursuant •to Section 10.2, 4.2 Parking Development Requirements. (a) The City or the County, as .'applicable, sham' expeditiously process all • applications for consents, approvals and permits necessary for th timely construction of the • Parking Facilities, which may include, if applicable, without 1im ation; (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, • (hi) re -Matting petitions,' including the Replat, (iv) re -zoning or zoning variance applications, ()� Miami -Dade Department of Environmental Resources Management and Miami -Dade Water and Sewer Department -approvals,—(vi)petitions-to-relocate-al-l-public-and-private vt' ities, including, without limitation, electric, gas, cable, telecommunication, water, sewer, ai 1 storm drainage facilities, located within the City Parking Site to areas to be located outside le -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 actllreasohably-to "ex:pedite any :application's' for actions or approvals requested_or.required of filmic-) in.coirtlection..with„tl?e,.p.ernrittin.g..and„+,:..Y.• construction of the Parking Facilities to allow for the ,t'iinely coinpletion of the Parking Facilities. ""' 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 confirmed via separate fetter 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 ma ager for the performance and management of the constriction of the Parking Facilities in accp -dance with Applicable Law. The City shall include in the RFP Small Business/Local Workfo 6e Goals - to be determined prior to the issuance 'of the RFP. The goals shall require that pr7ference be given to small businesses having an actual place of business in, and workers with a +esidence 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 Parking Facilities w be established for each construction trade package by the City Manager. in the event the Cit wishes to use or design a program similar to the Miami -Dade County Community Small usiness Enterprise programs and Community Workforce Program (the "Local Business Pro arm"), .the County agrees to work in good faith with the City in establishing the procedures ,aat will allow the City and the contractor or construction manager to use the databases ar services of the Local Business Programs, including (i) the County'SBD will provide a li ing of all certified CSBE firms (for the relevant construction trades) with their business a dresses, (ii) permitting the Construction Manager to utilize the Local Business Progr ms to satisfy the Small Business/Local Workforce Goals, including but not limited to /submitting job hiring requests through the County's Small Business Departnient (SBD) clearinghouse, and other union and non -union clearinghouses, and (iii) directing the SBD to su,rnit the hiring requests to all DTAs and NDZs, with the goal of filling such hiring needs as of rciently as possible and with as many qualified candidates from within the DTAs and NDZs as j ossible. 4.4 Construction Work. The City shc}l'1 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 rnanagipt the services of a construction manager and other contractors and personnel needed to impyove the Surface Lots, as agreed to by the Parties, construct and equip the Parking Structur s, and otherwise perform the Work in accordance with the Parking Design Documents, the Paring Criteria and the Master Project Schedule; (b) maintaining, causing' to be maintained, complete and accurate books and recordsTeonsistent-with-industry-standards; r°egardi•ng-the-City-Parking-P-roject, including the Parking Design Documents; (c) takcing•al /action reasonably required to comply with all Applicable Laws / ) and taking gill reasonabJe.acti on required to cause the Parking Arehitect'and rontractors"to:•design . and construct the Parking F cilities in accordance witkApplioable Laws;..... :,,,...;:; ..,..,; ... 10 (d) famishing promptly to the Stadium Operator Repre entative and the County Representative all documents and information required to be provid d 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 Co��my Representative may reasonably request (except to the extent such inforrnation may note made available under . Applicable Law); (e) • notifying•promptly the Stadium Operator/Kepresentative and the..County 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. Cornpl ion, with a record • set of the Parking • Design Documents revised. to show the ."as -built" con 1ition of the Parlcing Facilities and other changes .made during construction.of the. Parking Facil��ties; . . (g) managing. punch ..list• and ..warranty work after Parking Substantial COrnpl eti on.; ' (h) , providing . the Stadiur Operator Representative and the County • Representative with copies of any minutes p epared by the City or by *its .contractors that are received by the City, with respect to all prole meetings; • . •• causingthe corn let',on of the ParkingFacilities' in accordance with the (i) I� approved Parking Design Documents, th Design Standards, the Master Project Schedule. and this Agreement; j (j) • • obtaining or cawing to be obtained all pennits necessary for construction • of the City Parking Project in accordaa5ce.with Section 4.2; •• • 0 (lc)• • . maintaining ,the Parking Premises construction site in safe •condition, properly secured at all times with security against unpennitted access; • (1) subject to' Section 5,4(c), promptly causing the repair and restoration of • any portibn of the Parking Facilities affected by a Casualty; (ran) r-eaneatiin,g, in accordance with any option available under applicable environmental law, rules and regulations, including Chapter 24 of the Miami -Dade County Code, any environmental contar �iination located •on, in or under or originating from the portion .of the City Parking Site, provided, the City shall have no obligation to conduct remedyiation of any environmental contannination pursuant to this Agreement to the extent such contamination does anon-impact-theParkingFaciliti es-or-tlae-Publicinfrastructure; (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, fn-raished' ,and completed ira"0a good and '• workmanlike manner in accordance with this Agr-eement;.and ..........:.... , ..,,.,..;v...,, ..•..,,...::.,::: ,;. ;• 2 (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, development, construction, equipping and completion of the Parking Facilities, •including (a) all costs associated with any parking ijifrastructure 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 Requirement fees and costs, (d) ai1 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 VJorlc proceeds in accordance with the Master Projeo Schedule, subject to extensions resulting from Force Majeure. The City shall cause Parkii g Substantial Completion to occur no later than thirty (30) days prior to the Substantial Completion of the Baseball 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 .the Master .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 Baseball Stadium interferes with or otherwise causes a delay in the City's construction of any of the Parking Facilities, the construction schedules for die 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 ]aspect and , eceive Information. The Stadium Operator Representative (including the Architect and Co �triction Manager under the •Constin ction Administration Agreement) and the County Representative shall be given an opportunity to inspect the construction work and materials ' or the Parking Facilities as reasonably necessary to verify that the work and materials are in/ eneral conformity with the Design Standards. The Stadium Operator Representative and tl1e County Representative shall receive in writing from the City, within ten (10) days of provid'R'g the City with written request thereof, information regarding the. progress of the City Parkin- Project through each design phase and the construction of the Parking Facilities. Durin the construction of the Parking Facilities, the Stadium Operator Representative and the Co}arty Representative shall receive advance notice of, and shall have the' right to .attend, all schedjed meetings among the City and project contractors related to the City Parking. Project, and tl' right to inspect the Parking Facilities at all reasonable times, subject to ....._......__reasonab.l-e_restricti_i.iiip.os.ed tla.e_Ci.ty or_construction_manages..._' he_C.ity._shall._make..tself..,. and the Parking 4chitect 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 . x.; Representative reasonably informed throughout the duration of:the-:City P,ailQing=;Proj,ect:.,;..Any:r. rights that' the Stadium Operator Representative,, the County Representative and their l2 representatives have under this Section 4.7 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 caking Structures with spaces in Surface Lots on the City Parking .Site; (b) reduce the number/ spaces the e Parlcung Fa;c lit?es to,. approximately 5,700; and/or •(c) relocate. the Surface ots or any parking spaces to be located within Surface Lots to other surface lots located outsi e of the City Parking Site that are of comp.arab]e distance -to the Baseball Stadium; provided t}'hat in no event • under (a) — (c) above shall the total number of spaces in the Parking Fa.ciliti 6 (including any surface lots and/or parking spaces located outside the City Parking Site as con nnplated in clause . (c) above). be less than 5,500, Notwithstanding the foregoing, the City sir 1 have the.right to. reduce the number of spaces in theParking Facilities in the event the cost f construction of the Parking Facilities(exclusive of soft costs and tenant innproveinents) exoee• s $94 •million. 4,9 Liens, •Provided -that no Stadium Operator Default xists, the- City shall use commercially a•easonable efforts to cause the P.arking Facilities to b constructed in accordance. with the Parking Design Documents free and clear of any and all Liens except as otherwise ',contemplated or pemiitted.under,this Agreement: In the event '•ny such Lien is filed .by the *Parking Architect, construction manager or any .subcontractors 6 r. suppliers due to any • act or omission of the City and provided that no Stadium Operator D ault exists, the City shall cause said Lien to be discharged or transferred to appropriate bond w' hin thirty (30) days of recording, If the 'City does not discharge`6r transfer to -appropriate bon any such Lien within thirty •(30) days of recording, the Stadium Operator shall have the righ [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 froin'project funds, The City shall h' 'e the right to contest any such Lien in good faith and, so long as such contest does riot result ' n the imminent loss or forfeiture of the. City's title to the Parking Facilities, the Stadium,Oper for shall take no .actions permitted under the preceding sentence. ARTICL: V OPERATION OF PA KING FACILITIES 5.1 Operationn. Subject to Article V1 and the other terms of this Agreement, the City, through MPA. or, in the event MPA declines y 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; 73 (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 i�Y accordance with Section 5.4; (e) maintaining or causing to. be maintained all necessary, licenses, and authorizations for the operation of the Parking Facilities; and (mits (f) operating the Parking Facilities•in accordance with Applicable/Law, the Operating Standard attached hereto as Exhibit C (the "Operating Standard") and this .greenient. 5.2 Revenues. Except as provided in Article VI with respect to Stadia i Events, the City shall have the exclusive' right to establish prices :for,• and to collect and ryin, all parkiizg fees in the Parking Facilities. i 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 rela ng to the Parking Premises and the ownership, use and operation thereof, including expens s and taxes arising from or related to maintenance, repairs, insurance, utilities, event peg onnel, security and cleaning services. 5,4 Maintenance and Repairs. (a) The City shall keep the Parking Facilities in go iaintenance and repair in accordance with the Operating Standard. (b) Subject to Section 5,4(c), if at any time aft f• the Substantial Completion Date, all or any part of the Parking Facilities shall be damaged of Idestroyed by a casualty of any nature (a "Casualty"), the City shall repair, restore, replace a t1/or rebuild (such work being - "Casualty Repair Work") the Parking Facilities as nearly as predicable to a condition that is at least substantially equivalent to that existing immediately befor the Casualty, with such changes and alterations thereto as the City shall request and the Stadi n1 Operator Representative shall approve in accordance with substantially the same .prbced'u fes set forth in Section 4.'1. The Casualty Repair Work shall commence not later than one 1 tmdrecl eighty (180) clays after the Casualty occurs, which time shall be extended (provided th City is proceeding with reasonable diligence) by such reasonable time as is commensurate w th any delays due to adjustment of insurance, preparation of any necessary plans and specific Lions, 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) 015,4(b), if a Casualty also affects the Baseball__ Stadium in a manner thatresults ormay__res It in a tenriination of the Construction Administration Agreement pursuant to Section 8.3(d thereof or the Operating Agreement pursuant to Section 1 1.2(c) or 11.4(a) thereof, the City shall have rio obligation to undertake the Casualty Repair . Work if the Construction Admii istration Agreement or the Operating Agreement is so terminated, or until. the Constructioi Ac1niinistration Operating Agreement may no longer be terminated under one of -lose sections, ' 14 Insurance, The City shall obtain .and,maintain, orshali cause to •be btained • and. maintained, the insurance coverage for theperiods of time during the Term as set • rth in Exhihit D. 5,6 Third Party Manager. In the event MPA declines to Aerate the Parking • Facilities, the City may retain .a third party with experience in the rnanag pent of large parking. facilities (a ."Parking •Manager") to manage the. Parking Facilities, Tli City shall proyide.tlle . • Stadium Operator an opportunity to review and comment -upon the R .,quest for Proposal:for. the Parking Manager (which the City and Stadium Operator agree will ipchide a requirement 'that the parties submitting proposals . thereunder . shall consider alternat'ke • methods of .payment .fOr .patrons, including payment by credit card) and shafl provide the tadium Operator a voting seat on the evaluation committee that .selects the. Parking ManagesManag9f1 The managementagreement between. the City and a' Parking Manager shall expressly i,/corporate and require•the Parking • Manager to adhere to, the applicable terms ofthis Agree ent. In, addition,. the management. ,• • agreement shall provide that the City may amend any pro/visions in the.Thanagement agreement, . ifnecessary, in order to • 111 ai tain the tax-exempt .statts of any bond •issued by the City. for • financing the construction of the•Parking Facilities.,:PAsuant to the management agreement; the. City shall • cause the Parlcing Manager to indemnify/and agree to defend' the Stadium Operator Indemnitees, the Team Affiliates, the Countyand each of their respective officers and ernpleyees from and against any Loss arising out of the acgons or omissions of the Parking .Manager, its • • employees, •contractors, agents or .affiliates. .411 fees..and other amounts owing to the Parking ,. Manager shall be paid by 'the. City. The retentgni of a Parking Manager shall not.relieve the City 'of its obligations under this Agreement, and,/all referenees to the "City" in this•Agreement shall. • include the•Parking Manager as appropriate/ • • /ARTICLE VI • USE OF PARKINQ'FACILITIES BY TEAM AFFILIATES 6.1 - Teat Reserved Palling.The Stadium Operator, the Team and their employees and guests shall have exchisive/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• PA, P2 and/or P3, as detennined by the Stadium Operator in its sole discretion, provided that th Team Reserved Parking Spaces shall not be located on any Surface Lots. The Team Reserved/ arking Spaces shall be separately secured and the Stadiurn Operator shall be responsible for/paying all of the City's incremental costs incuned or requested by StadiumOperator in seParately securing the Team Reserved Parking Spaces, such as additional fencing or security Cip6I8S. The 'Stadium Operator 'shall remit, or cause to be remitted, to the City such increment l. costs within ten (I 0) Business Days after receiving a reasonably detailed.' invoice •from the City. -The Stadium Operator shall separately provide and pay for any additional security pers ODD eli or other services it TeCillires. for the Team Reserved Parking Spaces, / 6.2 tadium 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 appli cable, .and . • 15 their respective employees, ,guests, licensees and patrons, shall have prior and exc usive use of all of the spaces in the Parking Facilities for all MLB Events, and (ii) the Team 4. fiiiates and/or the sponsors or promoters of Other Events, as applicable, and their respective eq-iployees, guests, licensees 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 suchher Events by the applicable Team Affiliate, sponsor or promoter in accordance with Secti n 6.2(b)•below. All parking made available for MLB Events and Other Events hereunder iall be made available from two (2) hours prior to through at least two (2) hours following eacsuch event. (b) The Stadium Operator shal] notify the City or the Parking Manager in writing of the MLB Reserved Dates for each Operating Year n later than ten (10) Business Days after the Team's schedule is finalized for that Operating, 'ear. If the 'Stadium Operator wishes to reserve the Parking Facility for any other Stadium E ent, 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 (J4) clays before contractually committing to the proposed Stadium Event, Such notice shall be given in good faith and shall identify i reasonable detail the nature of the Stadium Event, the start time for such Stadium Event, yhe 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 9fher information reasonably necessary for the City to perform its duties under this Agreement./Ilie 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 fi•orx4he 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 dat " of such Stadium Event. Notwithstanding the foregoing, the Stadium Operator shall notify the City or the Parking Manager in wilting at ]east fourteen (14) days prior to a scheduled Sta ium Event, of the tenns of admission to the Parking Facilities (Le., 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 shal] reserve the Parking Facilities for the exclusiv uses contemplated under Section 6.2(a), and shall not permit any other Persons to use the P rlcing Facilities with respect to MLB Reserved Dates and other Stadium Events (except to th extent all of the spaces in the Parking Facilities are not needed for such other Stadium Eve ts) as to which it or the Parking Manager receives notice under this Section. 6.2(b). 6.3 Pa ruents for Stadi m Event Parkin (a) in additi• to the Stadium Operator's obligation to pay the incremental costs in separately securing thF 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 1--lome 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 Horne Garne played at the Baseball Stadium in each Operating Year at the following price per space; .. • -•- - .............. . r. ]6 Years Price 1-5 .$10.03 6-10 • $10,10 l 1 — 15 $10.20 16-20 $10.86 21 — 25 . • $11.56 2.6-30 • :. • $12.29 3.1 _-.35...... ....$12:53 .For purposes of the ,foregoing, "Available Number of Parkin : S) 'ces" means the..iaumbe••'of parking spaces in the Parking 'Facilities actually made available to the Stadium Operator for regular season MLB Honig Games, after giving effect to Sectioi 4.8. The Available .Number of Parking Spaces shali.exclude•the Team Reserved .Pazking• Spac and shall not exceed 5,750• • '(b) If in any Operating Year there are 'ewer than eighty one (81) regular season MLB Home. Game played at the•Baseball• Stadiu - due solely to a strike or lockout - of • MLB players, and one or more other Stadium Events ,ar held at the Baseball. Stadium in .such Operating Year at which customers p.ay the Stadiu Operator for •spaces 'in the Parking Facilities, the • Stadium Operator shall pay • to .the. • ty the revenues it receives. from..those customers in •an amount not to exceed the per space mounts set forth in Section 6.3(a)• until the City:has received.the ainount.it :would otherwise ha/'e received under Section 6.3(a).with, respect to the•cancelled MLB'Home Games. Such amo/ui7ts shall not include the taxes or surcharges, which the Stadium Operator is obligated to rehiit to the' applicable taxing authorities under • Section 6.3(d) below. and •other direct expensesjand the Incremental Labor Cost payable to the City under•Section 6.3(e). (c) The.amounts due to 93e City under Sections 6,3(a) and (b) with respect to each Operating Year•shal] be payable semi annually on or before 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 n9{ 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 equired to maintain a one (1) year debt service reserve for: the contemplated Parking Facility boSd financing and that the City satisfies•such reserve with a surety: The City shall use best effo `ts to utilize such a surety, or to otherwise utilize a letter of credit or similar financial instrurii nt• 'If the City is nevertheless required to maintain a cash reserve to satisfy this requiremel , the prices in Section 6.3(a) shall be increased by the .net incremental cost•of maintaining /such cash reserve on a .$44,000,000 portion of such Parking Facility bonds (i;e., interest on ky additional borrowings to fund the reserve, less earnings on the reserves and the assumed surety rate), The City shall use best efforts to minithize any such incren'iental costs, including Jiiiy maximizing the earnings on the reserves, provided that such earnings niay not exceed the iiterest rate on the Parking Facility bonds. (d) The 'cam Affiliates or their designees shall determine the prices and other terms upon which the Par sing Facilities will be made available to•patrons for Stadium Events (including regular season and post -season MLB Home 'Ganes and MLB Jewel Events) in their sole discretion,. and shall receive and retain all revenues derived therefrom. Such . -terms 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,prepaidl„parking passes for Stadiurn Events, The City shall honor such parking passes without payment by the patrons.. The City shall collect all parking reventiie payable at the Parking Facilities for Stadium Events as agent for the Stadium Operator in cas 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 designate by the Stadium Operator. The Stadium Operator shall be responsible for all generally app 'cable taxes and surcharges payable from all sales from which the Stadium Operator or the Tea or any Team Affiliateispaid 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 onnection therewith, the Parties agree that the parking surcharge to be remitted by the•Stadiunn iperator for. free, discounted or prepaid parking passes for regular season MLB Home Gala es 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 ira 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 regula/season MLB Rorie Games. The City and the Stadium Operator shall agree upon such staff" g levels as set forth in Section 6.4. The Stadium Operator shall remit, or cause to be r 'lifted, to the City the Incremental Labor Costs with respect to all such Stadium Events ( at are not regular season MLB Horne Gaines) oceunzng during any calendar month within t r (10) Business Days after receiving a reasonably detailed invoice following the end of such onth. Except as provided in this Section 6.3, none of the Team Affiliates or Major League Ba eball shall be required to pay for their use of the Parking Facilities for Stadium Events. (I) • e The City shall maintain accurate an) complete books and records, compiled in a consistent manner, so as to permit an audit by tl e Stadium Operator of the parking revenues relating to Stadium Events. The City shall retain su -•h records for no less than three (3) years. All such books and records shall be made availa le to the Stadium Operator within twenty (20) days of the City's receiving written requ st 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 res Sect 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 an exit data and parking revenues within twenty-four (24) hours, and .a final report within two ( ) business days, after each Stadium Event, The Stadium Operator agrees that it shall be subject so 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 4ontained herein, the City shall have the exclusive right to establish prices for, and to collect and retain, all parking fees for any and all parking spaces that are not reserved.by a Team Affiliate for Stadium Events pursuant to Sectioii- 6.2. 6.4 Staffing. With respect to Stadium Events, the City shall employ, at its .cost (except as'provided inspection 6.3(6)), sufficient, qualified afi.d'we11-trained (a) cashiers and other 8 .personnel •to. allow for the shortest practicable .entry .and empty times; .anti (b) .other'..perso Mel consistent with the Operating Standard. The City and the Stadium Operator shall agree,up n the staffing levels fortraffic.control and security'personnel prior to any Stadium Event. If the arties are unable to agree.despite their good faith efforts to do so, then the City shall decide ine.final • staffing levels for any regular season MLB Home Game and the Stadium Operator sea ] decide the final staffing levels for all other Stadium Events, in• each case consistent with the peratirig . Standard, The City shall use reasonable efforts to cause Parking Facility personnel t , perform their duties in a courteous, professional and timely manner, Al] Parking Facilitypersgnne] shall.• be deemed employees or.agents of the City or the Parking Manager and shall not for a hy'purpose• be considered employees or agents of the Stadium Operator or other Tearn Affiliates, • 6.5 .Soccer Stadium; Other Development., The City sell] not provide or ennrit use of the Parking Facilities by any 'owner or operator .of .a soccer: team or soccer s diwna .(or its employees, licensees, guests or'•patrons) at lower prices than those set forth in S ction 6.3(a) or on otherwise niore favorable terrns than those set forth in this Agreement, without the prior written consent • of the Stadium Operator; provided, however, that the City .rnarjk impose' on -the. soccer.tearn. or soccer •stadiurn a minimum spade purchase requirement of I ss than 5,750 'to. reflect a relatively smaller size and projected attendance at the soccer•stadiu fi. The City shall' not permit the use sof 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 riht to sell and enter into agreements with respect .to all Signage and advertising rights with respect to the Parking Pren.-iises, ors such terms and conditions as• the Team Affiliates shay determine.. The Stadium Operator shall pay to the City 50% of all net revenues (i.e., reven s less fulfillment costs and sales commissions, • but .excluding salary and benefits Maid to tie Team •Affiliates' officers, directors and employees) derived from such sales. • Such paymer is shall be made together with the payments by the Stadium Operator under Section 6.3(a).. If arty such sale is for non -monetary conside-atiorn,'the revenue from that •sale shall be determined -ased on the fair market value of such consideration, The revenue attributable to the Signage or purposes of this Section 6.6(a) shall .be based 'on the rate card for such Signage as approve by the City Representative. If the City Representative has not approved of a rate card for sucl /Signage, the Stadium Operator shall not sell such Signage without the City •Representativeprior consent, • which shall not be unreasonably conditioned, withheld or delayed, J� • (b) The Stadium Operator shall intain accurate and complete books and . records, compiled in a consistent manner, of the net evenues payable to the City under Section 6;6(a). The Stadium Operator shall retain such reco`cls for no less than three (3) years, All such books-and-records-steal•l-be-made-availabl.e.-to_the _Ci1ry_R.epr:esen.tative withirr_t`acerr.t�!._(2.0)._d.ays_o.f_._ 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 all Sigriage on the ,Parking Prennises•resulting from sales under Section 6,6(a). The City shall permit the display of l9 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 iir 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 business conducted by, or otherwise conflict with, any Major Sponsor; provided, however, thti Moor no retail tenant in the Other Development that competes with a new Major Sponsor (i.e., a Mr Sponsor that enters into an agreement with a Teani Affiliate or the Baseball Stadium follo\ ing the Teanr'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; p 4 vided, further, that no such agreement shall be renewable if it conflicts with a Major Sponsor Eyt/the time of such renewal. (e) Ambush Advertising shall be prohibited at the Parking Pr- fnises during (and within two hours before and after) MLB Events, and Other Events expect'iig to have an attendance of at least 5,000 people. "Ambush Advertising" means any prornofons, 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 )lie Soccer Stadium (as defined in the Operating Agreement). (f) Nothing in this Agreement shall limit the Teat f Affiliates' exclusive ownership of, and rights to exercise and exploit, the Promotional Rhts as set forth in the Operating Agreement. Such exclusive exercise and exploitation slip extend to the Parking Premises with respect to Stadium Events, and the City shall not exer ise or exploit; or authorize or permit the exercise or exploitation of, any such rights (e.g., the/City shall not permit MLB Home Gaines 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 writ.6n consent: (i) ticket brokerage businesses (other than brokerage services provided. by a Tam Affiliate for Major League Baseball .games), (ii) retail businesses whose primary busi less directly competes with the naming rights sponsors of the Baseball Stadium at the time1the retail business is established at the Parking Premises, (iii) QSRs (as defined in the Opertating Agreement), (iv) portable or temporary food, or the give-away of food or beverage, during the period from three (3) hours before and one (1) hour after MLB Home Gasses, or at* Stadium Events expected to have attendance of at least 5,000 people, (v) the sale of beer its an outdoor; bar (beer garden) within one hour before MLB,Horne Games, or other Stadium Events expected to have attendance of at least 5,000 people, and (vi) the promotion and sale of baseball br'ancled or themed memorabilia and merchandise by person other than a Team Affiliate, The City shall not permit the use of the Par]c%ng Pr eiaii.ses t1=at in any Material respect interferes with The opezation of the "Baselall-• - Stadium for MLB Horne 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...Qp.erator..Defaul.t...Each of the following shall .constitute.a default hy.th Stadiuii7 Operator hereunder (a "Stadium Operator Default"): (a) • ' • If the S[adii.7iri Operator fails to pay` or reinit any amount payable b . the • • Stadium Operator under this Agreement and fails to cure the salve within twenty (20). day, after writtennotice thereof to the Stadium Operator from the City. (b) . •If the Stadium -Operator: shall breach any of the other co/ e ants or • provisions in this Agreement and such failure is not cured within forty (40) clays/ft• written notice thereof is given to the Stadium Operator by•.the City; provided, however,. giat•rf it is.not ..reasonably possible to cure such breach within such forty•(40)-day period,. such $ne eriod shall. • • be extended .for up to one hundred .eighty (180) days following the giving ofthe original notice if within forty (40) days after such written notice the Stadium Operator commence and thereafter diligently pursues the cure. / • 8.2 Government Party Default. • 8.2,1. Each of the following shall: constitute a clefa91/t by the City hereunder (a "City Default"): Agreement •City. • (a) If the. City fai]s to pay or. remit an/amount payable by it under this and fails to cure the 'same within twenty (20) daya'after written notice thereof to the (b) If the City shall breach anyrof the.other covenants or provisions in this Agreerpent•and such failure is,not cured within for (40) days after written notice. thereof is given to the City; provided, however, that if it is rr . 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 orit`nal notice if within forty (40) days after such written notice the City commences and thereafte]/diligently pursues the cure. i 8.2,2 . Each of the following shall constitute a default by the•County hereunder- (a "County Default"): ; (a) , If the Count`* fails to pay or remit any amount payable by it under this Agreement and fails to cure the sar •'e 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 riot reasonably possible to cure such breach within such forty (40)-day'pe.;'od,..suoh cure peri,od.,sha11, be,extend edl for up to alp 2] hundred eighty (180) days following the giving of the original notice if within forty (40) days 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 tha must be resolved by arbitration or Expedited ADR, as applicable, tl)e Government Parties r -•y institute litigation to recover damages or to obtain ,any other remedy at law or in equity (Mel ing 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 iatters 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 9 nity (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 rerne, ies 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 p= more of such rights or remedies shall not preclude the exercise by it, at the same or clif/f&ent times, of any other rights or remedies for the same Default or any other Default. / (d) Any failure of a Party to exercise any right or remedy as provided in this Agreement shall not be deemed a waiver by that Part of any claim for damages it may have by reason of the Default. (e) Notwithstanding anything/o 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 County continues to perform it' obligations under the Interlocal Agreement between the County and the City, relating to the c) sposition of Convention Development Tax receipts for the Ballpark project (the "CDT lnterlo'cal") even while in default under this Agreement, any recovery of damages by the City again the County under this Agreement shall be offset by any amounts the County is obligated td remit to the City pursuant to the CDT lnterlocal. Alternatively, if the City elects to z'ecover and is awarded damages against the County which include the amount the County is ,Obligated to remit to the City pursuant to the CDT lnterlocal, the County shall be relieved ofj its funding obligations under the CDT lnterlocal as of the judgment 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 I-Ielp 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'iaas•occorred and such Stadium Operator Default is-contir.taing, in addition to... 22 . any ..other:remedy „ay.ai1able..to the Government .Parties.under.Alai s,Aglreement,..the GOY enanneznt 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 N tral pursuant .to Article X has determined pursuant to a final judgment or award that a City;De1%ult or County Default has occurred and such Default is continuing, in addition to any, other/emedy. available to the Stadium Operator under this Agreement, the Stadium Operator shall 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 A.gre heat to the contrary; this Agreement may not be terminated by any.Party (upon. a Default or therwise), and each Party waives.any right to terminate it may have at.law or in equity, except. as provided in • Sections.. 3.3, and (b) this .Agreement ..shall automatically terminate upon a . ruination of the Construction Administration Agreement in accordance with its terms and wi li• the consequences set forth- therein.. Notvrithstanding the foregoing, if this Agreement terrni ates ,as a• result of a •termination of the, Operating Agreernent.pursuant to Seotion.17.5.2(c) they of,:.tl?ea the City shall. • have the.right to institute litigation to .recover•damages -or to•obtain any o4ier.remedy at law, or in• equity (including specific performance, permanent, preliminary or to porary injunctive- relief,.. and any other kind of equitable remedy) as if such termination •wbuld constitute a Stadium Operator Default. Further, if the. Construction Administration Agre ment.is• terminated pursuant to Section. 11.1.4 of the Construction Administration Agreement, r ben each of the Parties. who are .not in Default under the Construction Administration Agr Agreement, shall have the .right to institute litigatibo against•the Defaulting Party to recover damas arising under this Agreement . or to 'obtain any other remedy available at law or in equity/ (including specific performance, •pennan•ent, preliminary or temporary injunctive relief, and atay 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 or default by the other Parties, except* May be otherwise expressly set forth in. this Agreement Or in any of the other Stadium Agreerlients. . ARTICIIE IX'. INDEMF'ICATION 9.1 Indemnification by Stadium Aerator. (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 Comity and 'Their respective "officers, employees -attorneys;---a-gents---and—instrumentalities- (collectively, "Government lndemnitees") from and against any and all losses, liabilities, damages, suits, claims, judgments and expenses (including reasonable attorneys' • fees) (collectively, "Losses") incurred by a Government • Indennitee and caused by any of the following occurring'during the Term: .t 23 (i) any breach of this Agreement by the Stadium Operator; or (ii) any negligence or willful misconduct of the Stadium Operator its contractors, employees or agents. (b) Notwithstanding the provisions of Section 9.1(a), the Stadium Op7fator shall not be required to indemnify for any Losses arising from or in connection with: (i) any injury to or death of a Person or .any damage to* property (including loss of use) to the extent caused by the negligence or willful act of any G/dvernment Indernnitee or their respective representatives or contractors; (ii) any violation by the City or the County of any lardvision of this Agreement,- any other Stadium Agreement or any Applicable Law or the ii urance policies referred to in Exhibit D; / (iii) any other matter for which the City or the Cfunty is obligated to provide indemnification under this Agreeznent or any other Stadium Agree f;ent; or (iv)anyLossesarising from or relating toa fee Majeure. ans z g m la gFq M z 9.2 Indemnification by City and .County. (a) City does hereby agree to indemnify and hold harmless the Stadium Operator and the Team (collectively, "Stadium Operator IndeznAtees") to the extent and within the limitations of Section 768.28 Fla. Stat., and subject to the rovisions of that Statute whereby the City shall not be held liable to pay a personal injury or operty damage claim or judgment by any one person which exceeds the sure set forth in said tatute, or any claim or judgments of portions thereof, which, when totaled with all other occzyrences, exceeds the sum set forth in said statute, from any and all personal injury or propert // damage claims, liabilities, losses and causes of action arising from the same claim which mayarise solely as a result of the negligence of the City in connection with its rights 'and oblig,4 Lions under this Agreement. The City expressly understands and agrees that any insuranc9 protection required by this Agreement or otherwise provided by the City shell in no way hi -fit the responsibility to indemnify, keep and save harmless and defend the Stadium Operator In emnitees as herein provided. (b) The County does hereb agree to indemnify and hold harmless the Stadium Operator•lndemnitees to the extent id within the limitations of Section 768.28 Fla. Stat., and subject to the provisions of that Storyry ute whereby the County shall not be held liable to pay a personal injury or property damage claim or judgment by any one person which exceeds the sum set forth in said statute, or. any 91aim or judgments of portions thereof, which, when totaled with all other occurrences, exceeds the sum set forth in said statute, from any and all __:._personal injury_ or property damage claim, liabilities, losses and causes of action arising from the same claim which may arise solely as a result of the negligence of the County in connection with its rights and obligations under this Agreement. The County expressly understands and agrees that any insurance protection required by this Agreement or otherwise provided by the County shall in no way limit the responsibility to indemnify, keep and save harmless and defend the Stadium Operator Indemnitees as herein provided. 24 • \ .•(c) Notwithstarnding..the provisions of Sections 9.2(a) and (b),::the. Govern= t 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 tadium Operator orany of its Affiliates or its representatives or contractors; (ii) . .any violation by.:.tlhe Stadium Operator or its Affiliate of .any • • provisions of this Agreement, any other. Stadium Agreement or any generally Appligable Law; (iii) any other matter for which the Stadium Operator its Affiliate is obligated to provide indemnification under this Agreement or anyotber Stacliun Agreement; or • 'v an , Loss arisingfromor relatingto orce M ere. (r) ) aF �] u • 9.3 . Indemnification Procedures. (a) If any Person entitled to indemnification pursenl to this Article IX (an "Indemnified Party") shall discover or have actual notice of facts th i have ..givenrise, or• which may give rise to, a claim for indemnification under this Article ZX fir shall receive notice of any .action or proceeding of any matter for which indeinnifreatien ma e claimed (each, a "Claim"), the Indemnified Party shall, within twenty (20) days -followings vice of process or other written notification Of, such claim (or within such shorter time as ma be necessary to give the Person. obligated to indemnify .the .Indemnified Party (the. "Indeni�}}''rtor") a reasonable opportunity to respond to such service process or notice of clairn), and w f1am twenty .(20) days after any other such notice, notify the Indemnitor• in writing thereo together with a statement., of such information respecting such matter as the' Indemnified arty ;then has; provided, however, the failure to notify the Indemnitor shall not relieve the lr /dem nitor from. any liability which it niay• have to the Indemnified Party except :arid solely to the extent that such failure or delay in notification shall have adversely affected the Indenainitor'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 /ega] proceedings. through attorneys of its own choosing, provided the Indennnitor'shall hav first notified the Indemnified Party of its intention to do so within twenty (20) days after its r ceipt of sucli notice front .the Indemnified Party, If within twenty (20) days following such iio i`ce from the Indemnified Party, the Indemnified Party has not received notice from the Indemnit6r• that such claim will be contested or defended by the Indemnitor, the Indemnified Party shall /ave the right to (i) authorize attorneys satisfactory to it a to represent it in connection therewith 0d/or (ii) subject to the approval of the Indemnitor, •which approval shall not be unreasonably wiiheld or. delayed, at any tiinne settle, compromise or pay - such 'Claim, in either of which eventsthe Indemnified Party shall be entitled to indemnification thereof as provided in :this Article IX/ provisions in no way prevent the Indemnified Party from taking whatever actions are rifecessary to defend the Claim during the time before the Indemnified Party learns whether the Inclemnitor.wi]] contest• or defend the Claim, Attorneys' .fees and costs accrued by the Indemnified Party -during this time are indernnifrable. If required by the Indemnitor, -the Indemnifi, d Party shall cooperate fully •with the lndeinuitor and its 25 1 attorneys in contesting or defending any such Claim or, if appropriate, in making any co' unt:erclaina or cross complaint against the Person asserting the Claim against the Indernriified Party, but the Indemnitor will reimburse the Indemnified Party for any expenses reasonably incurred by the lndemnified 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 agreement or by judgment of a court of competent jurisdiction. Notwithstanding tl fit the Indemnitor is actively conducting a defense or contest of any Claim against an lndemni•%ed Party, Such Claim may be settled, compromised or paid by the Indemnified Party witho the consent of the Indemnitor; provided however that if such action is taken without the hider) /litor's consent, its indemnification obligations with respect thereto shall be terminated lid the Indemnitor shall have no obligation to the Indemnified Party, The Indemnitor shal have the right to settle, compromise or pay any Claim being defended by the Indemnitor 2 ithout the Indemnified Party's consent so long as such settlement or compromise does nbt cause the Indemnified Party to incur any present or future material costs, expense, obligatiojior liability of any kind or nature, or require any admission or action or forbearance fror 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 r partly outside the scope of the indemnification by an hideniriitor .hereunder, then 'the atto eys' fees, costs and expenses of contesting or defending such Claim shall be equitably allocated between the Indemnified Party and the Indemnitor, If a conflict of interest exists etween the Indemnified Party and the Indemnitor with respect to any Claim, the Indemnified P/ rty shall have the right to participate in the defense of such Claim with separate counsel choseii by the. Indemnified Party, subject to the reasonable approval of the Indemnitor, and paid by th Indemnified Party. 9.4 Survival. The obligations contained in this Artici IX will survive the expiration or earlier termination of this Agreement but only with respect tf/ an event that may give rise to a Claim that in turn gives rise to a right of indemnification uncji&I this Article IX and which such event occurs prior to such expiration or termination. ARTICLE X ARB ITRATI O 10,1 Arbitration, Subject to Section 10.?, any dispute or controversy among the Parties or their Affiliates arising under or with rglspect to this Agreement shall be resolved exclusively by final and binding arbitration in lie City of Miami before a panel of three independent arbitrators under the auspices and pifsuant to the rules of the American Arbitration .Association ("AAA"), Unless otherwise •pro nded in this Agreement, the arbitration hearing will be scheduled so that it is completed within sixty (60) days from the date of the filing of the arbitration and a written award is rendered ,within forty-five (45) days from the date of such completion, Arbitrators will be 'chosen fi;6na the AAA Large and ,Complex Case Panel of Arbitrators except that none of the arbitr-itor's shall have performed, directly or indirectly, a material amount of 'woke for the County, the City or a Team Affiliate within the five (5)-year= 26 period inzmeel iate) ypreceding the date of-their•selection or -intend .or desire .to.perfonri 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 renerect by the arbitrators shall be filial and conclusive .and binding upon the Parties. •Judgement n ay be entered on the arbitrators' award in any 'court. -having jurisdiction'. Each 'Party. shall be r its own attorneys' fees and costs relating to the arbitration, but the costs and feesof tbe parme1 and the AAA shall be bone equally by the Parties to the arbitration, 10.2 Expedited ADR, (a) . Disputes 'or deadJ.cicsamong any of the Parties arising under or with respect to Article_ IV (each; an "Ex e ited ADR Dis ute"), shall be submitted to expedited alternative dispute resolution .("Ex:)edited ADR") under this Section 10,2, The Parties have mutually agreed to establish a panel ("Panel") of at least three (3) or more arbitrators (with the lead Panel member. to .be reached by mutual agreement) qualified to • resolve design. acid . construction -related contract disputes to be available to. resolve Expedited ADR'Disputes. The . Parties shall ,exchange proposed Panel c.riipositions within ten (10) days following the effective • date of this. Agreement •and'-agree on tl e Panel (and the lead Panelist):•within thirty (30) days •'• • following the effective date of this. Agr:ement. The arbitrator selected from the appro' ed ,Panel to resolve each -Expedited ADR Dispu •e shall be designated as the Person' (the "Neutral") -CO • whom Expedited ADR Disputes are to b- 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 tho.e .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 isparty to such Expedited ADR shall present ' its position with respect to the- issue(s) o be determined by such Expedited A.DR by an oral presentation to, the Neutral, Each •of the Parties who is party to such Expedited ADR shall be given the opportunity to bear -and -orally respond to the others' presentations to the Neutral, and to. present documents to the Neutral in' su port of such Party's position. The Neutral shall have- ' the right to limit the documents .presentet1 to the Neutral to assure a prompt resolution' of the issue(s) to be deternmined by the Neutral, i he Parties who are party to such Expedited ADR may have their respective counsels present at s ch Expedited ADR, but there shall•be no examination or cross-examination of witnesses other tha m 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 all Ex edited ADR Disputes, The Expedited ADR will be scheduled so that it is 'completed and a decision is rendered within twenty •(20) days from •the date of the filing of the Expedited ADR. Dilpute, and, if requested by the Parties, a written award is rendered within twenty (20) days of such completion. The written award by the -Neutral shall • be the —binding, —final —determination —OD the —za7erits of theExpeditedADR—Dispute,—and—sh.al.l- 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 t,. Expedited.ADI2, 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 a�ovision of this Agreement for any special, indirect, incidental, consequential, exemplar , treble or punitive damages, in contract, tort or otherwise, whether or not provided b,/ statute and whether or not caused by or resulting from the sole or concurrent negligence Or'lntentional 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. -parry 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 argument 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 mailed by certified mail, return /ceipt requested, to the Parties at the addresses set forth below (or at such. other address as Party may specify by notice given pursuant to this Section to the other Parties): If to the County: To the attention o % County Manager 111 NW. 1 s1 Street, Suite 2900 Miami, Florida 33128 Attn: George M. Burgess With a co/y to: County Attorney 111 NW 1st Street, Suite 2810 Miami, Florida 33128 Attn: Robert A. Cuevas, Jr. and Geri Keenan to.the City: - - / To the attention of: City Manager 444 SW 2' Avenue, le Floor Miami, Florida 33130 Attn: Pedro G. Hernandez 28 • • Virith.a copy to: Ci.ty.Attome.y • • 444 SW 2°d Avenue, 9`r' Floor Miami, Florida 33130 Attn: Julie 0. Bra and Olga Ramirez-Seijas If to the Stadium Operator: To the attention of: 2267 Dan Marino Boulevard Miami, Florida 33056 Attn: .David Samson arid 'Derek Jackson With a copy -to: • Proskauei- Rose LLP 1585 Broadway . New York, New York.-l0036. Attn: Wayne Katz ' Notwithstanding. ,the, foregoing, periodic and ordinary course. notices, deliveries• ,and communications between the Stadium •Operator' and the•Gov himent Representatives .may:•be given (and shall be considered given 'when provided) by. any o the means set forth .above,. and to the address provided by the Government Representatives to he Stadium •Operator from time to time. 11.2 Merger Clause. This Agreement, inc]u Ong the schedules and exhibits to this Agreement, and the other Stadium Agreements contain he sole and entire. agreernent.among the Parties and their Affiliates with respect to their subject -ratter, are fully integrated, and silpersede all prior written .or oral agreements among them re ating to that subject matter, including the BSA. Except as specifically set forth in this Agr ,ement and the other Stadiurn Agreements; there. shall be no warranties, representations or Cher agreements among. the Parties or .their. Affiliates in. connection with the subject natter h 'eof or thereof. • 11.3 AMendmenf. This Agreement nay not be amended or modified except in •a •• writing signed by the Parties affected by the nendment or modification, or except as otherwise provided in this Agreement. 11.4 Binding Effect. This Agr'ernent 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 arty of any breach of any provision of this Agreement shall not be considered as or constitute continuing waiver or a waiver of anS, o11Te breachofthe same or any other provision of this A_gi-cement. 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'atly contrary provision or implication in this •Agreem.en, and except .for their : 29 criminal acts with respect to this Agreement (i,e., acts which would constitute crimes were they prosecuted for land convicted of `such aets), the officers; 'vireetors,' Others; `shareholders; members, employees and agents of the 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 of any 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 giv 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 iminal 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 frith respect to this Agreement to the Stadium Operator, or any successor in interest to the Stadi ifraa Operator; no deficiency or other monetary or personal judgment of any kind shall be sought r entered against any of the County Personnel with respect to liability under or with respect to tl s Agreement; and rao judgment with respect to liability under or with respect to this Agreeme t shall give rise to any right of execution or levy against the assets of any of the County Person el. 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 0 ae City; provided, however, that the Stadium Operator may, without the prior written consent of the City or any other Governmental Authority: (i) Transfer all of its rights here ider to any Person (or Affiliate of any Person) that acquires directly-orirxdirectJy-th-e control.'ng-interest-in-the Team-•or-th'e'-Major- League Baseball franchise owned by the Team with th approval of Major League Baseball, provided that (A) such transferee executes and deliver to the City its agreement, in forma and substance reasonably satisfactory to the City, to ass me all of the obligations of the Stadium Operator under this Agreement -and to 'keep and pe�form 'all provisions -of this Agreement, and r.. •(B) such transferee or its •Affiliates assume.alJ of tlae_:oth.er:obligatiorns 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 hereund i' tq any provider, guarantor or insurer of financing to the Stadium Operator or its Affiliates, pr•o 'ided that such pledge or collateral 'assignment shall not relieve the.Stadium Operator of its ob1J'//gations under this Agreement. The provisions of Section 74.8 of the Operating Agreement shal /.apply to this Agreement as if contained herein. (b) • The Stadium .Operator shall be relieved of its obligation under .this Agreement from and after the date of a Transfer pursuant. to Section 11,9(a)(i) or (iabove; •(c). • Other than a Transfer of the Ci:ty's rights and obligati° 'is regarding the operation of the Parking Facilities to lv1PA, the City and the •County shall .not Transfer this , • Agreement or any of their rights hereunder, and the City shall not Transfer ' s 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 7.9.shall•be void. • . 1 l .10 Consent of Parties. Whenever in this Agreement the consent or •approval o / any Party is required, such consent or approval:. (i) shall not be unreasonably or arbitrarily w'thheld, conditioned or.delayed unless specifically provided to the .contrary in this, Agr.eeinent; •(J'') shall not be effective unless it. .is in writing; and: (iii) shall apply only to the specific act or tray 'sactior so approved or consented to and shall not relive the other Parties of the obligation of ob}aiiing the consenting Party's prior written consent or approval to any future similar. act or teal isaction, 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 Boar , 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. Th 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 Ciiia adiaaiiaistering aridinajalenienting theTerms o—this Agieenaezat; Tlae Couiaty Manager` gird— --- City manager shall notify the other Parties in writing if they designate(or re -designate) another individual to serve as County Representative or City Representative, respectively. Each of the i -')County Representative. and the City Representative shall have the power, authority and right, on - behalf of the Cour:ty and City, respectively, and without -any further.resolut'on or. action of the ,, Board or Commission, to: .. 3l (i) vie', 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 Government 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 al] documents on behalf of the County and/or City as the case may be, necessary or convenient to the foregoing approvals, consents and appointei.&its; and (v) grant written time extensions that extend deadlines or tilife periods up to J 80 days, and that do not otherwise materially affect the rights or obligaaaas 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 Commnission approval for the d,legated authority contained in MI .l T(a)(i)%,(v).. In addition, and -notwithstanding any of • the foregoing; the Government Representatives shall be required to seek Board and/or Coma ission approval, as applicable, for any approvals, consents, actions, events or undertakings by iv Party or any other third parties that would violate, alter, or ignore the substantive provisioof this Agreement, or that would create a financial obligation, cost, or expense to the Coun 4 and/or the City that is greater than the delegated procurement authority of the County May r or City Manager, as set forth in the applicable County and City Charters, County and ty Codes, and any related administrative or implementing orders. Any consent, approv , decision, determiiii?ation or extension under this Agreement by the County Representative or he City Representative shall be binding on the County and the City; respectively: Notwithsta ing and prevailing over anything to the contrary in this Section and this Agreement, the parts agree that the Board may at any time rescind any or. all delegations of authority to the Coumyty Representative. In such instances, the approval, consent or action sought shall be subject t //approval by the Board ancl, if a time frame for the County Representative's approval, oonsen or action is set forth in this Agreement, the Board shall consider the matter no later than the 2" d regularly scheduled meeting of the Board after committee consideration. All such time fram for County Representative approvals set forth in this Agreement shall be deemed amended ccordingly. The Stadium Operator and any other Person dealing with the County or City in c nnection with this Agreement or any matter governed by this Agreement may rely and shall e fully protected in relying upon the authority of its Government Representative to act for and ind the County and City, as the case may be, in any such matter. The County and City shall cause its Government Representative to comply witri ill of ilae provisions oflliis A.greemnent. (b) The President of th Stadium Operator or his designee (the "Stadium Operator Representative") shall act as liai 4 n and contact person between the Stadium Operator, on the one hand, and t e County t-ancl/ r the -City, on the other hand, in administering and 32 .innpl°em:enting`the•ternzs 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 Operator -to: (i) review, approve and consent to docuinerits and requests required or allowed by the.Goverrnnent Representative(s); the County and/or the City, as the case array 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 .appointed or designated by the Stadium Operator in this Agreement; . (iv) .. sign .any and all documents on behalf of the .Stadium 0; necessary or convenient to the foregoing approvals, consents and appointments; and • .(v) .grant waivers and enter into..annendments to this Agree]] ent. Any consent, approval, decision, determination, waiver. or amendment under this greement by the Stadium Operator Representative shall be binding on the Stadium erator. • The Government Parties and any other Person dealing with the Stadium Operator ii./onnection with this Agreement or any matter governed by this Agreement may rely and shall be fully protected -• in relying upon the authority .of the Stadium Operator Representative to a t. for and bind the Stadium Operator in any such matter, The Stadium Operator shall cause t e Operator Stadium Representative to comply with all of the,provisions of this Agreement.. 11.12 Headings. • The headings in this Agreement are inclu •ed for convenience and identification only and are in no way intended to describe, interpret define or -limit the scope, extent or intent of this Agreement or of its provisions. 11.13 General interpretive Provisions. Whenever- the cor)text may require, terms. used in this Agreement shall include the singular and plural forms, ar el any pronoun shall include the corresponding masculine and feminine formes. The tenu "i eluding", whenever used in any provision of, this Agreement, means including but witho/ t limiting the generality of any description preceding or succeeding such term. • Each r ference to a Person shall include a reference to 'such Person's successors and assigns. Al references to `.'Articles", "Sections",. "Schedules" or "Exhibits" shall be references to the Arti es, Sections, Schedules and Exhibits to _ this Agr�eement,_except to the extent that any such reference pecifically refers to another _ document, Each of the Parties has agreed to the use f the particular language of the provisions of this Agreement and any questions of doubtful into rpretation shall not be resolved by any rule or interpretation against the draftsman'. .. 11,14 Severability, Whenever pessible., each ,'provision of this Agreement shall be .interpreted in such a manner as, to ..be. effecti �/e and valid under Applicable .Law, but ii .any 1 33 provision:,.o.f.:tlais •Agreerent: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) complies 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 to be conferred by the invalid provision; and the remaining provisions of this Agreement, if capable of substantial performance, shall be enforced as if this Agreement was entered into without the invalid provision. .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, rfothing in this Agreement, express or implied, is intended to (a) confer upon any Person oiler than the Parties and their permitted successors and assigns any rights or remedies under da by reason of this Agreement as a, third -party beneficiary or otherwise, except as specifiical ,proovided in this Agreement; or (b) authorize anyone not a Party to maintain an action pursnt to or based upon this Agreement. • 11.17 Governing Law. This Agreement and the interpr) bon of its terms shall be governed by the laws of the State, without application of conflict //of law principles. Venue for any judicial, administrative or other action to enforce or constr9,d any term of this Agreement or arising from or relating to This Agreement shall lie exclusively fii Miami, Florida. 11,18 Time of Essence, Time is of the essence w, ith respect to the performance of each of the covenants and obligations contained in this Agreement, 11.19 Relationship of Parties. No partners} if.l, or joint venture is established among the Parties under this Agreement. Except as expres 1y provided in this Agreement, no Party or its officers, elected or appointed officials, employe s, agents, independent contractors or consultants shall be considered employees or agents of 91 y other Party or to have been authorized to incur any expense on behalf of any other Party o to act for or to bind any other Party. No Party shall be liable for any acts, omissions or negli ence on the part of the other Party or their employees, officials, agents, independent contractord, licensees and invitees, 13.20 Sovereign Rights. Th 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 anrthe operation of the asking -Facilities, respectively It is expressly unders ood that notwithstanding any provisions of this Agreement and the Stadium Agreements and the City's or the County's.status thereunde 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 estoppel 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, committee or agency to grant or leave in effect any zoning changes, variances, permits, waivers, contract amendments, or any other approvals that ,may be granted, withheld or revoked 'in the discretion of the City, the 'County or other applicable governmental agencies in the exercise of its police power. • • 11.21 Force Majeure. Except as otherwisehereiir expressly provided, if .any Party 1 all:. be delayed in the performance of any covenant or obligation hereunder (other than any c xl'enant• or obligation to .pay money), as a result of any Force•Majeure, then the performan,c� of such covenant or 'obligation shall- be 'excused for the period of such delay and the Pe;focifor the. performance of such covenant or obligation shall be extended by the number of ys equivalent to .the number of days of the'im act of such delay.In i'es ponse to and 'during it dela eauised Y p 1 t?f� Y Y 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 reason bly possible and any • Party seeking an excuse of performance due to. such Force Majeure sha l work diligently and in good faith to reduce or eliminate any damage, cost or delay caused by ch Force Majeure.- - 11.22 Major League Baseball Requirements. Notwiths riding any other provision of this A.greenaerit,.except for the last sentence'in this 'Section] the obligations of the Stadium • • Operator under this Agreement shall in all respects be subor,mate to tie app val requirements' and other Baseball Rules and Regulations as they are a .)lied generally to all Major League Baseball clubs. The.City and the County agree not to se an injunction or shnilar'.rebef against • Major. League Baseball to enjoin its implementation o the Baseball Rules and'Regulations'. In the event that any act or omission taken by the Stadi'iu Operator to comply with Baseball Rules and Regulations materially affects the rights of the City. or the County under this Agreement or deprives the City or the County of the essential b nefits of this Agreement, the Parties will work in good faith to amend the terms of this A„•eement to neutralize the effect, The Stadium Operator agrees in any event•that if cornplian'e by it with Baseball Rules and'Regulations results in •a failure of the Stadium Operator to :Cuff yl1 its obligations under this Agreement, the City and • the County may enforce remedies for th/ tadiuna Operator's failure to fulfill its obligations as provided in this Agreement and the other Stadium Agreements. 11.23 • Mutual' Covenants, (a) The Parties whenever and as often as each shall be reasonably requested to do so byanother Party or bey the Team, shall execute or cause 'to be executed any further' • documents and take any furthel` actions as may be reasonably necessary or expedient in orde_ to 'consummate the transactions provided for in,•and to carry. -out,the .purpose and intent. of, this.._.. 35. Agreement ..and each:.of..the..other..,Stadinm Agreem.ents.,;ex.eep.t..to..the exlez'at::sueh..actior?s.by. ,the::a Government Party requires approval by the Board or the Commission, as applicable. (b) No 1?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 Agreeinen or in the other Stadium Agreements. Subject to the preceding sentence, no such .challenge.naay be asserted by any Party except by.the institution of a declaratory action in which the Parties and the Team are parties. (c) Each 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 do so would be deemed by such Party as presenting a conflict of interest or would be contrary to Applicable Law. The applicable Party .shall pay all of the legal fees, costs and other expenses incurred by it in contesting the Challenge. The applicable Party shall consult with the Parties in contesting any Challenge. The Parties shall take all ministerial actions and proceedings reasonably necessary or appropriate to remedy any apparent invalidity, lack or defect in authorization, or illegality, or to cure any other defect which has been asserted or threatened. However, the County or City, shall not be obligate /o take any action which requires approval of the Board or Commission, as the case may/ e, or which is deemed by the County or City to present a conflict of interest. or is deemed by the County .or :City to .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 exer9i e good faith, to use good faith efforts or to use diligent reasonable efforts or other similar effpfts, such Party shall not be required to expend any funds, or grant any other consideration of apy kind, in theperformance of such undertaking, and each Party further acknowledges that thepbligation 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 aranty that the result which the Parties are attempting to. achieve will be successfully achie d and no -Party shall be liable for any 'failure to achieve the result or results intended so l�g as the Party has complied with its obligation to act in accordance with the applicable stand ad. 11.24 Anti -Discrimination Clause, In acc9 -dance 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 Go7ament Party agrees for the benefit of the Stadium Operator that the Stadium Operator shall Xve the right to collect damages and otherwise enforce this Agreement against such Governrxier t Party with respect to any breach of this Agreement by -such-GovernmentParty,--including—f - par-ty-claims-agar-nst-the—Stadium-Oper°atoa= -- 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 Qf all kinds•in anyway related to .the S.tadiurn Operator's rights and obligations under this Agreement, separate and identifiable from its other- books; r; co].ds 36 and .documents, and sh411.ma4 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 2-1.076 of`•the Cou tty Code establishing the Miami -Dade County .Offi.ce..of .the...Inspe,ctor..:General..(the"OIG"),:wbioh.has..the ..authority and .power ..tb .investigate Comity 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 Corntriissiori Auditor. 11.28 Counterparts, This Agreement may be executed in any number of counte 'arts with the same effect as if all Parties had executed' the same document. All counterparts s+.11 be construedtogether and shall constitute one instrument. CITY O, FLORIDA J. fee, a iat.Heinandez City Manager City of Miami A1'1 EST: By: APPROVED AS TO FORM AND CORRECTNE+S.S: City Attorney JULIE 0. BR.tA' MARLINS STADIUM OPERATOR, TLC By: Name: Title: With respect to -the County Provisions only: MCAMI-DADE COUNTY, FLORIDA. By; George M.rgess County Manager Miami -Dade County Af i'k.ST: Bv, Cie ,fthe oard APPROVED TO FORM AND LEGAL . DEFICIENCY: 37 ounty A orney APPROVED AS REQUIREMENTS : By: Name: :Risk Mavageme k ' n P.., *4-1.i" INS' RANCE j. Exhibit List Exhibit A — Entire Site, Baseball Stadium Site and City Parldng Site Exhibit B Parking Criteria Exhibit C — Operating Standard Exhibit D insurance •N NW 6T. I-1 11U); S)T: Baseball Stadium Site/.City Parking Site .. •Exhibit.A �AP:PR'oX ifeARAM APPROX. 12$..SP, M T A M / BASEBAL a1 /4THST. °F:AcC l?, �tI I.NG v. * ±iII2 i;ICT;PRED PARiIJN •rtgyjiu;.P4 • 1.01 STADIUM SITE BALLPARK 21 JANUARY 2009 STADIUM SITE, PARKING FACILITIES F)911I1)A IANJNS CtT1' or \IIA,\II MiA511 • UAf)C C0111.T1' NORTH1 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: Pi : Located to the East of the building that is located at the S/E corner of NW 7'1' Street and NW 16'1' Avenue. Approximate_nunnber.of spaces: 928 Number of levels: 5 Approximate total parking' area: 354,700 sq. ft. Approximate height to top tier: 47 ft. Width of typical spaces:'9'0" on first five levels. P2: Located at S/W corner of NW 7°i Street and NW 14'1' Avenu 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 of typical spaces; 9'0" on first five levels. P3: Located at N/E comer of NW 3" d Street and 161' Avenue. Number of levels: 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 :ix levels, Page 1 of 3 P4: Located at N/W corner of NW r/ Street and NW 1411' Avenue, N:umb.er,ollev.els: 6 Approxithate number of spaces: 1,274 • Approximate total parking'area: 491,400 sq. ft. Approkimate h 604. t6thp 'ti6r: 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 Street and. NW 7111Street, and three (3) lots located East of NW 14'1' Avenue betw en, NW 31.d.Street and NW 6111 Street. • APproximate number of spaces: 969 Design Critefia • Approximately 5,700 to 6,000 parking spaces located within the Ent .e Site. Design should be governed as "event" style parking structure (abil. y to support large • • • events), . • All ADA spaces :to be located on grade level Of each structures parking garage. • Design to support a 40-minute exit time at capacity. a) Plaxi•for one exit lane for every 400/450 cars. b) Rarnps strategically located to accommodate req • ired exiting time. c) number of stairs and elevators to suppor the exiting criteria. 0 Develop building edge § that compliment the architer re of theneighborboocl and the ballpark .with approximately 15 feet sidewalks. 0. Design Parking Facilities to support the Baseba Stadium in achieving certification via •• • the Sustainable Buildings Program (i.e.: spas for Alternative Fuel and Low Emissions.' Vehicles, provision for. charging stations fo electric vehicles (ernpty conduits) and space allocated for carpool vehicles, dedicated/ea for bicycles in one Or more StiliCillred • parking garage). * Vehicular Entrance/Exit points cane t be placed on either 411' Street or 6' Street. Thee . streets will be cloSed on game day o Lobbies to provide clear vertical7CirculatiOnaEdo—be—fo—CilOints fthTi Integrate parking access co'ntr I 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 • Two-way traffic low with 90 degree parking; or One -way traffic flow with 60/75 degree parking at the option of the City. • Minimum 6.0' 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), • 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, • Ramp parking cannot exceed a 6% slope while speed ramps cannot exeeed'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) Minimum of 3,000 lb capacity. • Safety and security requirements: a. Well lit, and well distributed lighting systems includ g perimeter lighting (average of 40 foot candles at entrance, exits, stair, , and elevator lobbies, average of 10 foot candles at driving sites); b. Provisions (empty conduit) for "Call for assipt'ance"stations with blue light's, located at pertinent locations on eagli floor, including at the end of parking aisles, in front and inside of ele .tors, in lobbies and stairs; c. Provisions (empty conduit) for CCTV at entrances/exits to and from the •facility,. elevator lobbies, and securi y office; d. Concrete filled steel pipe bollard and curbs to protect equipment. Page 3 of 3 General: EXHIBIT C OPERATING STANDARD The Parking Facilities shall be operated as "event parking" (inna manner that allows the ingress and egress of a large volume -of cars in a short iod oftim.e in a safe and efficient manner) in accordance with other comparabl. sports 'facilities with adjacent parking. All parking spaces in each Parking Facility will be. i dividually numbered with.a distinct numbering system from other 'Parking Faci]i ies. Each season ticket parking pass will be .associated with a specific Parking Fac''lity (or portion thereof), as designated by the Stadium Operator. All .Parking. Fa 1ities will be individually named and clearly identified for patrons to easily ret3rn to their vehicles after Stadium Events. Staffing: Personnel Standards: The City will hire qualified and well -trained personnel to operate the Parking Facilities efficiently and to assure collection, security, 'and reconciliation of revenues, with emphasis .on cus Omer service. A11.personnel will treat patrons in a courteous, .professional and t' ely manner. All employees will wear a uniform so as to present a neat, clean nd professional appearance at all times. Types of Personnel: The City will provide sufficient personnel to. operate, maintain and secure the Parking.Faciliti es,, in , luding the, following: • Cashiers/Parking attendants ro control access 'at entries aD d collect fees and/or passes to allow f•r the fastest entry and empty times; Supervisor and cashiers to r•concile cash and passes with number of • parked cars at the end of e. ch event; • Supervisors to generally assist with ingress and egress from the parking facility in an orde ly and efficient manner; Custodial personnel to cl •'an i) the Parking Facilities before each Stadium Event, ii) stairs, lobbies and the elevators before each Stadium Event and as r: quired during and after' Stadium Events. Trash will be removed efore each Stadium Event and.dumpster areas will be sanitized as re. uired; • —Secuf ty personnel -to ensure i) patrons can access acid exit t17e Parking Facilities in safe manner, ii) no unauthorized person is present in or aroun • the Parking Facilities, and iii) elevators are functioning, and the stairwells and Parking Facilities are lighted adequate]y..Securi to periodically circulate the:Parkir.g Facilities to Page 1 of 3 �.y prevent theft and vandalism and to assist patrons with disabled vehicles. • 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 Horne Gaines. If the parties .are .unable to agree to staffing levels for MLB 1-1ome Games, the City shall decide the final staffing levels, which shall not be less than the minimum staffing levels with respect to MLB 1-Iome Games: Cashiers/Parking Attendants 26 (5 per structured lot; 1 per surface lot) Directors (for.each structured lot 2 per floor on first 3 floors, 2 for upper floors; 2 per surface lot) Custodial Personnel 6 (1 per structured lot; 1 for each of Ea t and West surface lots) Security Personnel 8 during MLB Home Games (2 for ea 'h of the structured lots, and roving in le surface lots) Custodial: The Parking Facilities, including their entrances, elevators, stai ells, aisles and ramps, will be kept in a clean condition at all times, free of odors, ebris and trash. Maintenance and Repairs: The City shall keep the Parking Facilities in good mainte ance and proceed with repairs as needed, including by Procuring all work, labor nd materials necessary to (a) maintain the Parking Facilities in good, cleat , working order, (b) maintain the surfaces and striping of the Parking Facilities i good condition, (c) promptly repair or restore equipment, fixtures and other.cmpone7ts of the Parking Facilities as a result of ordinary wear and tear orcasualty of any nature (including promptly repairing elevators, signs and lighting equipment), (d) replace equipment, fixtures and components of the Parking Facilities at the encl oftheir economic life cycle, and (e) improve the Parking Facilities so that th ry comply with.this Operating Standard. To ensure the Parking Facilities are opera • d in a safe manner with a minimum of inconvenience to its patrons, the City w 1l establish and maintain a Preventive Maintenance Program. The City shall conduct maintenance and repairs so as not to limit the availability of all spaces in th Parking Facilities for Stadium Events. Regular equipment maintenance must `e con.ducted 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 and debit card machines, Parking control devices shall be equipped with locks to • . prevent :il)Ping Manipulated. .in,addition, security.s.eals.must.bein. place on every piece of eq.uipment, City or Parking Manager employees will•be • • responsible to visually inspect equipment daily to ensure that all locks and equipment seals are•ill place. . • • • Inoperable motor vehicles, trailers, storage or similar items shall not be allowed to remain inthe Parking.Facilities and shall promptly be removed by the - City, • Records and controls: • •. . . , . .. . . . . . .. . . . . . . .. . The City will follow prudent policies and procedures so ,as to se re the parking fee - revenues .from the Stadium Events and to. provide com •ete and accurate information on parking proceeds and use, . . . • The CitY'sliall, and shall cause its parking personnel and Parkin Manager -(if ' any) -to, liaise with •Stadiarn-Ope•rator.:•for the ••planning • of -the staf g and other operational issues regarding the Stadium. Events, and.to review a d reconcile al) accounting reports and records regarding the event parking activiti s. • Signage: The City' will be responsible for appropriate direction and informational signage related' to the Parking Facilities on and around the En :re Site. • ' Vehicle Towing Service: • • As part of basic service made available to patroi s for all MLB Events and Other Events •expectecl to•have• attendance of at least .5, 00 people, the •City will be responsible for having a vehicle towing service on -site om at least one hour before • through at least two hours after each such Stadium Ev t. Parking Procedures Manual: The City and the Stadium Operator shall d velop, at least .90 days prior to opening of the Baseball .Stadium, a detailed Par) ing Procedures Manual that will contain specific information regarding' the ope ation of the Parking Facilities in accordance with this Operating Standard. A Pa king Employee Ilandbook'shall be .:_provided to parlcingpersonnel (ancupdatedf mil time to time) with all relevant customer service 'information on the Baseball tadium, the Parking Facilities, traffic and directions. Page of 3 CITY ll'ARICING AGREEMENT El HIB..IT D-I INSURANCE REQUIREMENTS MCA.MI CITY I'ARIGNG CONSTRUCTION PHASE I. Commercial General Liability (PROJECT SPECIFIC) A. Limits of Liability Bodily Injury and Property Damage Liability. Each Occurrence $ 1,000,000 General Aggregate Limit $ 2,000,000 Products/Completed Operations $ 1,000,000 Personal and Advertising Injury $ 1,000,000 Medical -Payments $ 10,000 B. Endorsements Required City of Miami, Marlins Stadium Operator, LLC, Marlid Stadium Developer, LLC, Florida Marlins, LP and Miarni-Da County included as an additional insured (CG 2010 11/85) Contingent Liability (Independent Contractors Co erage) Contractual Liability Waiver of Subrogation Premises & Operations Liability • Explosion, Collapse and Underground Ilan •d Loading and Unloading Completed Operations for a period of 100Years, II. Business Automobile Liability A. Limits of Liability Bodily Injury and Properly Dazn9.ge Liability Combined Single Limit Any Auto/Owned Autos/Sea %d led Autos Including Hired, Borxowed ©r 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 llI, 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, eacl accident, $1,000,000 for bodily injury caused by disease, each niployee . $1,000,000 for bodily injury caused by disease, poli y li nit Y. Umbrella Policy/Excess Liability (Excess Followi igForm/True Excess Followiizg.Forrn/True Unzb•ella).in excess of the oni,nerciad general liability, employer's liability and business aulom bile liability coverage provided hereunder. A. Limits of Liability Bodily Injury and Property Dainage Lia ility Each Occurrence $20,000,000 Aggregate $20,000,000 B. Endorsements Required . City of Miami, Marlins Stadium iperator LLC, Marlins Stadium Developer, LLC, Florida Marl' r s, LP and Miami Dade County included as an additional insured Increased limits to General lability, Auto and Employer'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, T P and Miami Dade County included as Obligees. VII. Builders' Rislc Causes of Loss: All Risk -Specific Coverage Project Location Valuation: Replacement Cost Deductible: $25,000 All other Perils 5% maximum on Wind & T-lail and Flood City ofMiami, Marlins Stadium Operator, LLC, Marlins Stadium Developer, LLC, Florida Marlins, LP, Marlins Stadium Developer, LLC and Miami Dade County listed as an Additional Insured A. Limit/Value at Location or Site: Replacement cost of Parking Facilities, subject to customary sub-Iimits in the Seirth Florida insuran'ee 'market B. Coverage Extensions • Materials, supplies and similar prope owned by others for which you are responsible. • Full coverage up to policy limits fQ equipment breakdown. • Temporary storage/transit coverpgge. • Full coverage up to policy lin3.ds for site preparation, re -excavation, re-preparatio .and re -grade in the event of a loss. • Fences, scaffolding, cons action forms coverage and signs • Valuable papers coven e for blueprints, site plans and similar documents. • Trees, shrubs, sod, ants while at premises. • Flood, including i undation, rain, seepage and water damage. • Earthquake • Terrorism • Business 13.2 rruption (Delay in Coinpletion /Soft Costs) • New ordiallnce or lav,; reimbursement for any resulting loss of value to//tale undamaged portion, arad required demolition expen,Os, including construction nedessary to repair, rebuild or re - cons ct damaged parts. - — - — - -• Te porary-sfiacturesrcr-ibbing-and-false work built or erected at struction site. • nintentional errors and omissions in reporting clause . • / Debris Removal • j Expediting and contractor's extra expense. Page 3 of 4 ProfessionalLiabiliq A, Limits of Liability At a minimum Each Claim . $ 5,000,000 General Aggregate Limit $ 5,000;000 Tbe 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) clays 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 rl - funded, shall be the obligation of City and shall not apply to Team Affiliates. All,pplicies' shall be endorsed to provide a waiver of subrogation in favor of .the "Adyhtional Insureds". City .00. furnish Team Affiliates with .c1ts of insurance e,liclenbing compliance with all insurance provisions noted above prior to the conimncythent of the Work and annually prior to the expiration of each required insurance polic . .) Companies authorized to do business in the State of Florida, with the foil •/g qualifications, shall issue all insurance policies required above: The company must be rated no less than "A-" ,as to nianagg ment, and no .less •than. "Class VII" as to Financial Strength, by the latest edition/lBest'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 re i/ew and verification by Risk Management prior to insurance approval. • Page 4 of 4 • CITY PARKING AGREEMENT •EXJLIT D-2 INSURANCE REQU REI &ENTS TO BE PROVIDED . BY CITY OR PARKING MANAGER FOR THE OPERATIONAL PUASE OF THE PARING GARAGE FACILITY I. Commercial General Liability (Primary & Non Contributory) A. Limits of Liability Bodily Injury and Property Damage Each Occurrence GeneralAggregate-Limit Products/Completed Operations Personal and Advertising Injury Damage to Rented Premises Medical Payments B. Endorsements Required Liability $1,000,000 $2;000,000 $1,000,000 $1,000,000 $300,000 $10,000 City of Miami, Marlins Stadium Operator, LLC, Florida minis, LP and Miami -Dade County included as an additional insured .CG 2010 11/85) or its equivalence Contingent Liability (Independent Contractors CovFiage) Contractual Liability Waiver of Subrogation Premises & Operations Liability Explosion, Collapse and Underground Ilaza Loading and Unloading II. Business Automobile Liability A. Limits of Liability • Bodily Injury and'Properly Damaged iability Combined Sipgle Limit Any Auto/Owned Autos/Scheduled Autos Including Hired, Borrowed or Non -Owned Autos Any One A/cident $ 1,000,000 m. B. Endorsements Required City ofMiami, Marlins Stadium Operator, 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- • • • • Waiver of subrogation ••• . .Employer's Liability • A:Limits .of Liability .$500,000 for bodily•injury caused by an accident, eac accident, $500000 for bOdilyinjury caused by disease, each mployee $500,000 for bodily injury caused by disease, po cy limit • 11: .Umbrella Policy/Excess Liability (Exces. s Foll wing Form/True :Excess • Following Form/True Umbrella) in excess of/ he commerdal general employer's liability and business a itomobile liabi1iy coverage' provided hereunder. A: Limits. of Liability Bodily Injury and ProPerty Dam Each Occurrence Aggregate B. Endorsements Required e Liability $10,000,000 $10,000,000 City of Miami, Marlins tacliuni Operator:LLC, Florida Marlins, LP and Miami Dade County k cludecl as an additional insured increased limits to q6neral Liability, Auto and Employer's Liability Coverage • • ,. Page 2 of VI. Garage keeper's Legal Liability (GILL) A. Limits. ofLiability $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 V L. Crime Coverage A. Limits ofLiability Employee Dishonesty including Forgery and alteration $1,000,000 Money & Securities In & Out Coverage $ 25,000 r 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 evidenc'of insurance affording coverage against "All Risk" of direct physical loss or damage and Time Element coverage, in an arrrount equal to the replacement cost of the Parking Fa'icilities, including coverage'for windstorm, hail, earthquake and flood, subject to sub-ircauts customarily maintained by the City, This policy shall further provide coveragdfor contingent business income to protect against potential loss of income under the tees of this Agreement as a result of a casualty to the Stadium Premises from a covered Muse of Joss. .�1� IX. PerformanceBond(If Applicable) ,�' $ TBD City of Miami, Marlins Stadium Operator L/C, Florida Marlins, LP aiad 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/bulge from the insurer not less than (30) days prior to any such cancellation or mateyfal change. Further, coverage for the Additional Insureds shall apply on a primary b�/isis. irrespective of any other insurance, whether collectible or not, Any policy dedVtibles or retentions, whether self -insured or self - funded, shall be the obligation of City and shall not apply to Team Affiliates. All policies —.-.s-ball-be-endorsed- io provide-a/vviver of subrogation in favor of..tlie ,�Adc�xtioiaal Insureds". City shall furnish Tam Affiliates with certificates of' insurance evidencing compliance with all insurance 1rovisions noted above prior to start of operations of the Parking Facilities and annuaJlS'prior to the expiration of each required insurance policy. Page 3 of 4 Eveir.y five. years frorn.the date of this Agreement, the Parties iij1 revisit the limits and sub,limits. of thepOlicies above and adjust to levels that are rea • °Rabic and customary in —therS6itth"BOrld'alidsuranee inarket. • Companies aiithbrized to do business in the State of F1oid,,4vith the folloWing shall issue all insurance policies required above; • • The company must berated no less than "A,--" as to nagement, and no less than. "class • VII!' astoPinancial Strength, by the latestedition of est's Insurance Guide, published by • A.M. Bost 'Company, Oldwick, New • Jersey, or its equivalent. MI policies and/or certificates of insurance are subject to review and erification by Risk Management prior to insurance approval. Page 4 pi 4 ' EXHIBIT "E" Parking Assignment Agreement Assigmnent:and,Assumption Agreement - The parties to this Assignment and Assumption Agreement, dated as o .'May 7, 2010, are Marlins Stadium Operator, LLC, a Delaware limited liability company ("A,signor"), and Stadium Parking, LLC, a Delaware limited liability company ("Assignee"). Assignor is party to a City Parking Agreement dated as of Au ii 15, 2009 (the "Parking Agreement") with the City of Miami and Miami -Dade County. (CiSitalized.terms used herein and not otherwise defined are defined in the Parldng Agreement.) Assignor and Assignee agree as follows: 1. • Assignor hereby assigns to Assignee its ri lits under the.Parking Agreement to receive revenues derived from the use of the Parking Flities 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 taxeand surcharges payable by Assignor under Section 6.3(d) of the Parldng Agreement. 3.... .....Assignee .,shall have._the ..sam-.rights,and..o,bligations_as Assignor_unde:r,.t11e.Parldng Agreement with respect to procedural mar ers governing the revenues and payinents 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:, Da id P. amson 02551486.33-016 Current/16651635v2