HomeMy WebLinkAboutExhibit 1City of Miami
Legislation
Resolution: R-11-0479
City Hall
3500 Pan American
Drive
Miami, FL 33133
www.miamigov.com
File Number: 11-01035
Final Action Date:11/17/2011
A RESOLUTION OF THE MIAMI ,CITY COMMISSION, WITH ATTACHMENT(S),
AUTHORIZING THE CITY MANAGER TO EXECUTE AN INTERLOCAL
AGREEMENT BY AND BETWEEN THE CITY OF MIAMI, FLORIDAAND THE
DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI, IN
SUBSTANTIALLY THE ATTACHED FORM, SUBJECT TO AN APPROVING
OPINION FROM BOND COUNSEL, FOR THE LEASE, OPERATION AND
MANAGEMENT OF THE PARKING AND RETAIL FACILITIES AT THE MIAMI
BALLPARK, LOCATED AT 501 MARLINS WAY, MIAMI, FLORIDA; ESTABLISHING
A SPECIAL REVENUE FUND ENTITLED: "MIAMI BALLPARK PARKING
FACILITIES."
WHEREAS, pursuant to that certain City Parking Agreement dated April 15, 2009 by and
between the City of Miami, Florida ("City"), Miami -Dade County ("County") and Marlins Stadium
Operator, LLC ("Marlins"), the City agreed to construct-- four (4) parking garages and six (6)
surface -parking lots ("Parking Facilities") to support the new Miami Ballpark, a public -purpose project
of the County and the City ("Ballpark Project"), located at 501 Marlins Way, Miami, Florida; and
WHEREAS, the Marlins, pursuant to the City Parking Agreement, guaranteed to the City a
fixed amount for the use. of the Parking Facilities during Major League Baseball and other stadium
events ("Marlins Payment"), thereby allowing the City to finance the Parking Facilities; and
WHEREAS, to further the Ballpark Project, the County, pursuant to that certain Interlocal
Agreement dated July 1, 2009 by and between the City and County, agreed to make annual
contributions of convention development tax toward the financing of the Parking Facilities ("County
CDTAgreement"); and
WHEREAS, to finance the construction of the Parking Facilities, the Miami City Commission,
pursuant to Resolution No. 09-0509, adopted October 22, 2009, authorized the issuance of (a) City of
Miami, Florida Tax -Exempt Special Obligation Parking Revenue Bonds, Series 2010A; and (b) City of
Miami, Florida Taxable Special Obligation Parking Revenue Bonds, Series 2010B ("Revenue Bonds"),
the aggregate principal amount of which not to exceed One Hundred Twenty Million and No/100
Dollars ($120,000,000.00); and
WHEREAS, to service the debt on the Revenue Bonds, the City pledged the Marlins Payment,
the County CDT, and other parking surcharge revenue; and
WHEREAS, the use of Revenue Bonds proceeds are subject to the regulations of Sections
103(a) and 141 through 150 of the Internal Revenue Code of 1986, as.amended, _.including all rules
promulgated --thereunder, and other covenants of the Revenue=Bonds; and
-WHEREAS, -included within the Parking Facilities are approximately 53,000 square feet of
rentable space designed for commercial/retail use ("Retail Facilities"), the rental revenues from which
City of Miami Page 1 of 3 File Id: 11-01035 (Version: 2) Printed On: 11/30/2011
File Number' 11-01035 Enactment Number: R-I1-0479
shall serve as supplement income generated from the Parking Facilities; and
WHEREAS, for the efficient operation and management of the Parking Facilities, the proposed
Interlocal Agreement by and between the City and the Department of Off -Street Parking of the City of
Miami ("MPA" and, together with the City, the "Parties"), in substantially the attached form ("Ballpark
Interlocal Agreement"), leases the Parking Facilities'to the MPA; and
WHEREAS, under the Ballpark Interlocal Agreement, the MPA will be responsible for the daily
operation of the Parking Facilities, including additional game -day operations as required by the City
Parking Agreement; facilities management (maintenance, capital improvements, etc.); the rented use
of the surface parking lots; the placement of Marlins -affiliated advertising; and the leasing of the Retail
Facilities under the continuous supervision of the City Manager; and
' WHEREAS, the Parties will collaborate to select tenants for the Retail Facilities to operate
harmoniously with the Marlins and the Ballpark Project and to create a 365-day/year-round
entertainment destination with 24-hour appeal, which shall include without limitation: specialty
shopping, entertainment, and assorted dining options; and
WHEREAS, the Miami City Commission, pursuant to Resolution No. 11-0320, adopted July 28,
2011, authorized the procurement of the services of Terranova Corporation, who will serve as the City
Manager's advisor for the leasing of the Retail Facilities; and
WHEREAS, the Parties will utilize the services of Terranova Corporation to ensure the selection
of tenants with the requisite experience, financial and credit backgrounds to operate within the Retail
Facilities, and to maximize the ability of the Retail Facilities to generate revenue for the City; and
WHEREAS, a newly established special revenue fund will be used to efficiently manage the
revenues and expenditures related to the Parking Facilities; and
WHEREAS, subject to an approving opinion to be issued by Bond Counsel, the City
Commission wishes to authorize the execution of the Ballpark Interlocal Agreement, in substantially
the form of Exhibit "A;"
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI,
FLORIDA:
Section 1. The recitals and findings contained in the preamble to this Resolution are adopted
by reference and incorporated as if fully set forth in this Section.
Section 2. The City Manager is hereby authorized {1} to execute a Ballpark Interlocal
Agreement, by and between the City and the MPA, in substantially the attached form, subject to an
approving opinion from Bond Counsel, for the lease, operation and management of the Parking
Facilities surrounding the Miami Ballpark, located at 501 Marlins Way, Miami, Florida.
Section 3. A special revenue fund entitled: "Miami Ballpark Parking Facilities," is hereby
established.
-:Section 4. The City -Manager is authorized {1) to execute, or join in the execution of, all other.
document(s)' necessarrto giving=effect to 'the Ballpark Interlocal Agreerrient, ire such form(s),
City of Miami
Page 2 of 3 File Id: 11-01035 (Version: 2) Printed On: 11/30/2011
File Number: 11-01035 Enactment Number: R-11-0479
acceptable to the City Attorney, and subject to such approving opinion(s) of Bond Counsel as may be
required from time to time.
• Section 5. This Resolution shall become effective immediately upon its adoption and signature
of the Mayor.{2}
APPROVED AS TO FORM AND CORRECTNESS:
JULIE O. BRU
CITY ATTORNEY
Footnotes:
{1} The herein authorization is further subject to compliance with all requirements that may be imposed
by the City Attorney, including but not limited to those prescribed by applicable City Charter and Code
provisions.
{2} If the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days
from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective
immediately upon override of the veto by the City Commission.
City of Miami Page 3 of 3
File Id: 11-01035 (Version: 2) Printed On: 11/30/2011
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 ("Bond Resolution"), a copy of which is attached as Exhibit "F" hereto and made a part hereof
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 ("Cite 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
communities, such as those contemplated herein:
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.
11.9. ".Charter" shall have the meaning ascribed to it in the Recitals.
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1.1.10 "City Attorney" shall mean the city attorney of the City, and the general counsel to
theMPA 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.
1.12 1 "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.
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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 1' — where "y" equals the
year in which the Fiscal Year begins and 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, and the Tax
Certificate.
1.1.35 "Level A" shall have the meaning ascribed to it in Section 6.2.2.
1.1.36 "Level B" shall have themeaning ascribed to it in Section 6.2.2.
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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.
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 Miami,
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.
Florida.
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, Miami, Florida, and being more particularly illustrated in Exhibit "B."
!• n‘• -` A 152'• <!"ParkingiFacilities" shall mean all St7uctured Parking, Surface Parking, and Private
Drives, excluding the Retail Facilities.
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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 commerciaUretail 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 201 OB.
1:1:66 "Revenue Bond Requirements" shall •mean those -requirements, restrictions, and _
covenants of the Revenue Bonds and the Bond Resolution.
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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.
1.1.73 "Structured Parking," shall mean the parking facilities P1, 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 El, E2, E3, WI, W2, and W3.
1.1.76 "Tax Certificate" shall mean that certain Tax Certificate as to Arbitrage and the
Provisions of Sections 141-150 of the Internal Revenue Code of 1986, as Amended, a copy of which is
attached as Exhibit "G" hereto and made a part hereof.
Agreement.
1.1.77 "Team" shall have the meaning ascribed to it in the City Parking Agreement.
1.1.78 "Team Affiliate" shall have the meaning ascribed to it in the City Parking
1.1.79 "Term" shall have the meaning ascribed to it in Section 2.1.
1.1.80 "W I" shall mean the surface parking lot located at 1600 Northwest Seventh Street,
Miami, Florida, and being more particularly described in Exhibit "A."
1.1.81 "W2" shall mean the surface parking lot located at 1610 Northwest Sixth Street,
Miami. Florida, and being more particularly described in Exhibit "A."
1,1.82 "h"*W3"'shall 4i-1ean the surface parking lot:, located-: at :1680 Northwest _Fifth .Street,
Miami; -Florida, and being more particularly described in Exhibit "A."
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1.2
herein:
Exhibits. The following Exhibits shall form part of this Agreement and are incorporated
Exhibit "A"
Exhibit "B"
Exhibit ".C"
Exhibit "D"
Exhibit "E"
Exhibit "F"
Exhibit "G"
The Property
The Facilities
City Insurance Requirements
City Parking Agreement
Parking Assignment Agreement
Bond Resolution
Tax Certificate
ARTICLE II: 1`ERM
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.
23 Termination. The Parties shall each have the right to 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 Propertv. 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
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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.
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,,.:....
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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 (c) 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.
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 FACILI I1ES
4.1 Operation. Except as may be otherwiserequired 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.
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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 Altemative 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: Casualtv. 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
promptlyrepair or restore equipment, attires and other components of the Parking Facilities as a result=of
wear and tear or casualty ofany nature.
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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 onceevery 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 lirnit on the use
of the Parking Facilities by the Stadium Operator, Team, Team Affiliates, Major League Baseball, other
sponsorsand 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 Ag, eement.
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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
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 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. 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.
cancelation or termination of this Agreement, provided that:
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v agrees not to evict a Subtenant upon the
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
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, 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 from time to time.
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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.
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 writtenconsent shall not constitute an opinion or agreement by the City. that the plans and
specifications of the.contetnplated alterations are structurally sufficient or in compliance with any laws;codes
or other applicable regulations. . .
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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.
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
approve all documents related to such encumbrances or hens. 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 tc 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.
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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.
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 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 the Parties; or (b) `Level
B;'' which shall include all Retail Revenues and Advertising Fees.-
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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 City shall
have the option to appropriate additional funds to the Revenue Fund, from such other sources as may be
determined by the City at its 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
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.
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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
Comunission, 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.
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.
rExpense Invoices. The MPA shall provide, with°`the -Monthly Report,.an .invoice..
indicating-thcisCactual Combined Expenses that have been paid. by the MPA ("Expense Invoice"). The
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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 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 (l5th) 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 fmancial 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
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Miami Ballpark Parking Facilities Interloca] Cooperation & Lease Agreement
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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 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 Emeruencv 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 goverment -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 ("Emercencv 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'Cit, shall have legal ownership of and legal title to all such alterations improvements,
changes and additions.
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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 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, l0th Floor
Miami, FL 33130-1910
Attn: City Manager
With copy to:
Department of Public Facilities Office of the City Attorney
,444_S.W12nd Avenue, 3rd Floor 444 S.W. 2nd Avenue,.9th Floor
Miami, FL 33130-1910 1 Miami, FL 33120=1910
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Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement
Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking
Attn: Director Attn: City Attorney
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
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 WA'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:
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9.6.2 Rieht 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 procedures herein and allow the dispute to be otherwise resolved
in accordance with law.
ARTICLE X: WARRANTIES AND REPRESENTATIONS
10.1 NIPA'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 terns, 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
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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 ofits 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: Severabilitv. 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. NIPA 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.
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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, 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 -Pam, 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]
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Miami Ballpark Parking Facilities lnterlocal Cooperation & Lease Agreement
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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 0. Bru, Esq.
Risk Manager City Attorney
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Miami Ballpark Parking Facilities 1nterlocal Cooperation & Lease Agreement
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EXHIBIT "A"
The Property
1. North Structured Parking (PI 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 ESTA1"E 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 (WI):
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
page
thereof as`recorded in Plat Book _ at 46 of the Public Records of Miami -Dade County, Florida.
8. East Surface Parking (E3):
ExhibitA/Page 1 of2
Miami Ballpark Parking Facilities Interloca] 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 ESTAI.E. 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 of 2
Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement
Public Facilities > Asset Management >Real Estate > Miami Ballpark Parking
EXHIBIT "B"
The Facilities
,
EAF. JJStIG GARAGE Pt
1502 NW 7TH STREEE
tf,66.1"ig*r4%L7
1600 NW 71T1 ST _ NW LIN_SLT
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1
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I -I • •
EXISTING BASEBALL FIELD •
,;;!-T•r.: - rr1-.
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irrtni-rmirrtrfril nrmin-rt-rtrrnTiTurrirry r
. .
-71,1"77-1,171-1-
BASEBALL STADIUM
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EXHIBIT "C"
City Insurance Requirements
L Commercial General Liability
A. Limits of Liability:
Bodily injury and property damage liability
Each Occurrence S1,000,000
General Aggregate Limit S2,000,000
Personal and Advertising Injury S1,000,000
Products/Completed Operations S1,000,000
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 S1,000,000
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:
S1,000,000 for bodily injury caused by an accident, each accident
S1,000,000 for bodily injury caused by disease, each employee
S1,000,000 for bodily injury caused by disease, policy limit
IV. Umbrella Policy/Excess Liability (Excess Follow Fornr)
A. Limits of Liability
Bodily injury and property damage liability
Each Occurrence
Aggregate
B. Endorsements Required:
(1) City of Miami included as additional insured
Exhibit C/Paee 1 of2
Miami Ballpark Parking. Facilities lnterlocal Cooperation 8. Lease Agreement
Public Facilities> Asset Management > Real Estate> Miami Ballpark Parking
S5,000,000
S5,000,000
V. Garage Keepers Legal Liability
A. Limits of Liability
B. Endorsements Required:
(1) City of Miami included as additional insured
VI. Crime Coverage
A. Limits of Liability
2,000,000
S1,000,000
B. Endorsements Required:
(1) City of Miami listed as loss payee
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 lnterlocal Cooperation & Lease Agreement
Public Facilities> Asset Management > Real Estate> Miami Ballpark Parking
EXHIBIT "D"
City Parking Agreement
Execution Copy
CITY PARKING AGREEMENT
BY AND AIVIONG
THE CITY OF MIAMI,
MIAMI-DADE COUNTY
AND
MARLINS STADIUM OPERATOR, LLC
APRIL , 2009.
TABLE OF CONTENTS
Article I DEFINED TERMS 1
Article II PARKING FACILITIES 7
Article III TERM 7
3.1 Tenn 8
3.2 Options to Extend Term 8
3.3 Termination 8
• Article IV DESIGN AND CONSTRUCTION OF PARKING FACILITIES 8
4.1 Design 8
4.2 Parking Development Requirements • 9
4.3 Omitted .10
4.4 Construction Worlc 10
4.5 Project Costs 12
4.6 Master Project Schedule 12
4.7 Right to Inspect and Receive Information 12
4.8 Number of Spaces 13
4.9 Liens 13
Article V OPERATION OF PARKING FACILITIES 13
5.1 Operation 13
.5.2 Revenue 14
5.3 Expenses 14
5.4 Maintenance and Repairs 14
5.5 Insurance 15
5.6 Third Party Manager 15
Article VI USE OF PARKING FACILITIES BY TEAM AFFILIATES 15
• 6.1 Team Reserved Parking 15
6.2 Stadium Event Parking 15
6.3 Payments for Stadium Event Parking I 6
• 6.4 Staffing • 18
6.5 Soccer Stadium; Other Development 19
•
6.6 Advertising Rights, Concessions and Promotional Rights. I 9
Article VII •Omitted 21
Article VIII DEFAULTS AND REMEDIES 21
8.1 Stadium Operator Default 21
8.2 Government Party Default 21
8.3 Remedies 22
8.4 Self -Help Remedies ?2
8.5 Termination :23
8.6 Exclusive Remedies • 23
Article IX INDEMNIFICATION 23 •
• 9.1 Indemnification by Stadium Operator 73
9.2 Indemnification by -City and County 24
9.3 Indemnification Procedures 95
9.4 Survival • •26
Article X ARBITRATION • 26
• 10.1 Arbitration 26
10.2 Expedited ADR • 27
10.3 No Indirect Damages 28.
Article XI MISCELLANEOUS •28
11.1 • Notices 28
11.2 Merger Clause • 28 •
11.3 Amendment 29
11.4 Binding Effect 79
11.5 Waiver 29
11.6 Nonrecourse Liability of.Stadium Operator PerSonnel 29
11.7 Non -Recourse Liability of City Personnel • 30
11.8 Non -Recourse Liability of County Personnel 30
11.9 Assigrunent
11.10 Consent of Parties 31
11.11 Party Representatives 31
11.12 •Headings 33
11.13 Genera] Interpretive Provisions 33
11.14 Severability - 33
11.15 Further Assurances . . 34
11.16, Absence ofThird-Party Beneficiaries 34
11
11.17 Governing Law 34
l 1.18 Time of Essence 34
11.19 Relationship of Parties 34
11.20 Sovereign Rights 34
11.21 Force Majeure 35
11.22 Major League Baseball Requirements 35
1 1 .23 Mutual Covenants 35
11.24 Anti -Discrimination Clause 36
1] .25 Valid Agreement 36
11.26 Boolcs and Records; Audit 36
11.27 County Inspector General and Commission Auditor 36
1 .28 Counterparts 37
• _ _
111
CITY PARKING AGREEMENT.
This City Parking Agreement (this "Agreement") is made and entered into this f )day of
April, 2009 by and among the City of Miami, a municipal corporation of the State of Florida (the
"City"), Marlins Stadium Operator, LLC, a Delaware limited liability company (the "Stadium
Operator"), and solely for the purposes of the County Provisions (as defined in Article I), Miami -
Dade County,.a.political.sub_division.Grille State of Florida (the "County," and together with. the
City and the Stadium (Dperator, 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 terns and conditions uncle: -
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.
terns used herein are defined in Article I.)
B. Contemporaneously with the execution of this Agreement: (i) the County, the City
and the Stadium Developer are • entering into the Construction Administration Agreement that .
provides for the design, development and construction of the Baseball Stadium and the Public
Infrastructure (as defined in the Construction Administration Agreement), and (ii) the •County,
the City and the Stadium Operator are entering into the Operating Agreement that provides for
the operation and management of the Baseball Stadium by the Stadium Operator once the
Baseball Stadium has. been constructed as provided in the Construction Administration
Agreement.
• C. This Agree lent 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 tears have the•fol]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 right
to exercise more than fifty percent (50%) of the voting power of the other Person.
•
"Applicable Law''-=mems any applicable. law, statute; code, .ordinance, adtinistrative
: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 5,4(b).
"Certificate of Occupancy" means a certificate, whether temporary or permanent, issued
by the City's building official permitting public occupancy and use of the Parking Facilities.
"City" is defined in the Preamble to this Agreement.
"City Default" is defined in Section 8.2.1.
"City Parking Project" means the design, development, construction and equipping of the
Parking Facilities in accordance with the terns of this Agreement.
"City Parking Site" means the areas of land depicted as such on Exhibit A.
"City Personnel" is defined in Section 11.7.
"City Representative" is defined in Section 11.11.
"Claim" is defined in Section 9.3.
"Co mission" -means the City Conniiission of the City -of Miaini.
"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 I and Il; Section 3.3; and Articles IV„ VIII, IX , X .
and XI. •
"County'Reuresentative" 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, hurricane, flood,
earthquake, fire, casualty, act of God, act of the public enemy, epidemic, quarantine restriction,
freight embargoes, lack of transportation, governmental restriction, court order, unusually severe
Weather, act or.the failure to act of any public governmental agency or entity, terrorism, or any
other cause in each case .(including the events specified above) beyond the reasonable control
and without the fault of the Party claiming an excuse from performance; provided, however, that
any Force Majeure involving or relating to County or.City governmental restrictions or acts or
failures to act of any•County or City agency or entity shall not relieve the County or •City, as the..
case inay be, of their obligations under this Agreement unless the failure to act is as a result of
another Force Majeure event beyond the• reasonable control and without the fault of the Party
claiming an excuse from performance.
"Government Indemnitee" is defined in Section 9.1(a).
"Government Party" means each of the County and the City.
"Governmental Authority" means any federal, state, county, municipal or other
governmental department, entity, authority, commission, board, bureau, court, agency, or any
instrumentality of any of them.
"Incremental Labor Costs" shall_mean the actual labor costs incuried.=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 t11e labor costs
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) S525,000 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 Home 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 Horne
Games (including potential post -season games) or MLB Jewel Events under MLB Rules and
Regulations.
"1\7PA" 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 dotl�niunity.:
Developinent:Plan as Neighborhood Devclopment 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 periodcommencing on the Substantial Completion Date
and ending on the next succeeding October 31 and (ii) each subsequent twelve (12) month period
during the Tenn 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
teiniination.
`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 froth 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 .Facil.ities, as may be amended from time to-• time in
accordance with this Agreement, based upon 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 II.
"Parking=Final:Completion" means the occurrence of -all of the following (i) the Parking
'Arcbitect has.'signed and?d.elivered to the City and the Stadium Operator a certificate of final
completion, `(ii) a permanent 'Certificate of Occupancy, has teen issued with respect to the
Parking Facilities, and (iii) punch list items have been completed.
"Parlcing.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 -temporary) in or on the Parking
Premises, including banners, fascia boards, displays, message centers, advertisements, signs and
marquee signs, in each case, in accordance with this Agreement. The size, dimensions, location
and design of all Signage shall be subject to Applicable Law respecting such Signage.
"Small Business/Local Workforce Goals" means the local businesses and workforce
goals to be included in the RFP to be issued by the City for the development of the Parking
Facilities as provided in Section 4.3..
"Stadium 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.Premtses, including: MLB Home
.Gam es;..MLB Jewel: Events;::Tean1 practices, exhibitions, clini cs, prorriotroh and fan activities;
and --other professional or amateur sporting events or exhibitions, conceits, trade shows,
conventions, general : audience, _ •family or other targeted.' audience show*—perfor antes 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 .OperatorDefault'° is -defined in Section 8. 1 .
"Stadium Operator Indemnitee" is defined in .Section 9.2(a). .
"Stadium Operator Personnel" is defined in Section ] 1.6.
"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 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.
"Tern" is defined in Section 3.1:
• "Transfer" is defined in Section 1 1.9(a).
"Work" is defined in Section 4.4.
ARTICLE II
PARKING FACILITIES
The City shall construct or cause to be constructed, on the City Parking Site, Parking
Structures and Surface Lots.(together, the "Parking Facilities") that will include approximately
6,000 (subject to Section 4.8).parkingspaces he]d.for.use as provided in this Agreement, and will .
operate and provide access to such Parking Facilities, on the terns set forth in this Agreement.
The general configuration; layout and design features of the Parking . Facilities .are more
particularly described in the Parking Criteria attached hereto. -as Exhibit•,B (the ."Parking
Criteria");_ and will be reflected', in the Parking Design Documents: • The 'City- estimates the!,
construction 'cost of the=Parking Facilities at $94 million. The.Parties acknowledge that the City
will not use_ad-valorem._ revenues to fund construction of the -Parking -Facilities •and.. the. Parties ..:: •.
further acknowledge that if the cost of construction (exclusive of soft costs and tenant
improvements) exceeds $94 million the number of parking spaces will be reduced accordingly.
ARTICLE III
TERM
3.1 Term. The term of this Agreement shall commence on the date hereof and shall
expire on October 31 in the year in which the twentieth (201h) annual anniversary of the
Substantial Completion Date occurs, unless sooner terminated pursuant to any applicable
provision of this Agreement (such teen 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 Term. The Stadium Operator shall have the option (but not the
obligation) to extend the Tern 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 Iater than three hundred sixty-
five (365) days prior to the expiration of the initial Tern or any extended Tenn, 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 Term. or such
earlier date upon which title to the Baseball Stadium Site may revert from the County to, or• at
the direction of, the City pursuant to the Warranty Deed referred to in the Construction
Administration Agreement; provided, however, that upon expiration of such 180 clay period, if
the County is able to identify a replacement tenant who fits the criteria set forth in the Warranty
Deed prior to the reversion of the Baseball Stadium site back to the City, the Government Parties
agree to negotiate in good faith with such replacement tenant to enter into a new parking
agreement.
ARTICLE IV
DESIGN AND CONSTRUCTION OF PARKING FACILITIES
4.1 Design. The City shall manage and control the design of the Parking Facilities,
including the hiring ofa.n 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- .
___=;crnaterials_facing the Baseball Stadium ((a)-(c), the "Design Standards") The Stadium Operator
-Representative and the County Representative shall each have.the right to review,comrnent 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 DesighDocurnents are in conformity
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with the Design Standards, and.(2) shall not otherwise be unreasonably withheld, conditioned or
delayed. The City shal] 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 coirunents settiing forth the
reasons that it has determined that the applicable Parking Design Document. is not generally
consistent in al] material respects with the Design Standards. If, 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 elerrients 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, revise the Parking Design Documents, in an expeditious manner so as not to delay the
production of the Parking Design •Documents or the City Parking Project: • The City shall cause
the Parking Architect to . revise the applicable Parking Design Documents to address any
(m) comments raised by the County Representative or Stadium Operator Representative with which
.'--/ the City agrees and shall .subrnit 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 steal] have
five (5) Business Days from the receipt ofthe revised Parlcing Design Documents to review and
approve them. The failure of the County Representative or Stadium Operator Representative to .
respond within such five (5) Business Day period shal] be deemed approval. If the•objecting
Party and the City are not able to resolve any disagreements under this Section 4.1, either of
them may file for Expedited.ADR pursuant to Section 10.2.
4.2 Parking Development Requirements.
(a) The City or the County, as applicable, shall expeditiously process all
applications for consents, approvals and permits necessary for the timely construction of the
Parking Facilities, which may include, if applicable, without limitation: (i) major use special
permit and any other special peiiiiits 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
Rep]at, (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,„ stone, 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-
Requirennents,'.').`- -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 pei iiiitting and
- construction of the Parking Facilities to allow for the timely completion of the Parking Facilities.
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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 constriction 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 constriction 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
non -union clearinghouses, and (iii) directing the SBD to submit the hiring requests to all DTAs
and NDZs, with the goal of filling such hiring needs as efficiently as possible and with as many
qualified candidates from within the DTAs and NDZs as possible.
4.4 Construction Work. The City shall be responsible for managing, directing,
supervising, coordinating and controlling the City Parking Project (the "Work"), including the
matters addressed in Sections 4.] 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 coinPY� 1 "with all A pp; icable"Laws 7
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;
(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 al] 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 Design 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 unpennitted access; •
(1) subject to Section 5.4(c), promptly causing the repair and restoration of
any portion of the Packing Facilities affected by a Casualty;
(in) 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'n7anager'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
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(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) all costs to equip the Parking Premises consistent with the Parking Criteria.
4.6 • Master Project Schedule. The City shall use reasonable best efforts to ensure that
the Work proceeds in accordance with the Master Project Schedule, subject to extensions
resulting from Force Majeure. The City shall cause Parking Substantial Completion to occur no
later than thirty (30) days prior to the Substantial Completion of the 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 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 Pa.rkirig Project in 'order to 'keep the Stadium Operator Representative and the 'County- '
-.Representative reasonably infoinied throughout the duration of the City Parking Project. Any
rights _that the - Stadium Operator Representative, the County Representative and their
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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) re]ocate.the Surface Lots or any
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parking spaces to be located within Surface Lots to other surface lots located outside of the City .
Parking Site that ai-e of comparable distance to the BEsebal] 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 iii 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 peimitted.'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 aiiy means the Stadium Operator reasonably deems proper, including
payment of the Lien from project funds. The City shall have the right to contest any such Lien in •
good faith and, so long as such contest does not result in the imminent loss or forfeiture of -the
City's title to the Parking Facilities, the Stadium Operator shall take no .actions permitted under
the preceding sentence.
ARTICLE V
OPERATION OF PARKING FACILITIES
. 5.1 Operation: Subject to Article VI and the other terms of this Agreement the City,
through MPA or, in the event MPA declines to operate the Parking Facilities, through a Third
Party Manager, as provided in Section 5.6, shall have the exclusive right, authority and
responsibility to operate, manage, maintain and control the•Parking Facilities on a year-round
basis. These rights and responsibilities include:
(a) subject to Article VI with respect to Stadium Events, determining staffing
levels, scheduling hours of operation and establishing parking rates for the Parking Facilities;
(b) • • employing; terminating and supervising all personnel necessary for the
operation of the Parking Facilities, •• including cashiers,; maintenance-- crews -:: and„security
personnel;
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(c) procuring and entering into contracts for the furnishing of .all utilities,
equipment, services and supplies necessary for the operation of the Parking Facilities;
(d) performing, or causing to be performed, all maintenance and repairs in
accordance with Section 5.4;
(e) maintaining or causing to be maintained all necessary, licenses, permits
and authorizations for the operation of the Parking Facilities; and
(f) operating the Parking Facilities in accordance with Applicable Law, the
Operating Standard attached hereto as Exhibit C (the "Operating Standard") and this Agreement.
5.2 Revenues. Except as provided in Article VI with respect to Stadium Events, the
City shall have the exclusive right to establish prices for, and to collect and retain, all parking
fees in the Parking Facilities.
5.3 Expenses. Except as expressly provided in Sections 6.1, 6.3(d) and 6.3(e), the
City shall be responsible for the payment of all expenses and taxes relating to the Parking
Premises and the ownership, use and operation thereof, including expenses and taxes arising
from or related to maintenance, repairs, insurance, utilities, event personnel, security and
cleaning services.
5.4 Maintenance and 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
1aursuantao 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 Oper atungry
Agi=eennent is so terminated, or -until the Construction -Administration Agreement or Operating
• Agreement may no longer be terminated under one of those sections.
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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 Tenn as set forth in Exhibit
D.
5.6 Third Party Manager. In the event MPA declines to operate the Parking
Facilities, the City may retain .a third party with experience in the management of large parking. • .
facilities (a "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 the evaluation committee that selects the:Parking Manager. The management agreement
between the City. and a Parking Manager shall expressly incorporate and require the Parking
Manager to adhere .to the applicable terms of this Agreement. In addition,. the management.
agreement shall provide that the City may amend any provisions in the.management agreement,
• if necessary, in order to maintain the tax-exempt status of any bond issued by the City for
financing the construction of the.Parking Facilities. Pursuant to the management agreement, the
•
City shall cause the Parking Manager to indemnify and agree to defend the Stadium Operator
lndemnitees, 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
v include the ParkinoManaer as appropriate.
ARTICLE VI
USE OF PARKING FACILITIES BY TEAM AFFILIATES
6.1 Team Reserved Parking. The Stadium Operator, the Team and their employees
and guests shall have exclusive use of two hundred -fifty (250) of the parking: spaces in the
Parking Facilities, at no. cost, on a twenty-four (24) hour per day, year-round basis throughout the
Tenn (the "Team Reserved Parking 'Spaces"). The Team Reserved Parking Spaces shall be
located in Parking Garages PI, 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
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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 fi-om 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 Stadiurn
erator'shall''pay,'oi' 'cause -to be paid, to the City an amount representing the purchase of the
,Available Number °of Parking Spaces°'for each regular season`MLB'.Eome Game played -at the
Baseball Stadium in each Operating Year at the following price per space:
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1J
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 — :3.5 .__ ... _ ...-$12:5-3
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 Home 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' Home 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 th.e applicable taxing authorities under Section 6.3(d) below. The prices in
Section 6.3(a) assume that the City is required to raintain 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 instruiirent. 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.Affrliates or their designees sn.all determine t11e prices alnd, other ,. ,.
terms upon_ which the Parking Facilities will be made available to patrons for Stadrurp Events „
(including iegulai"season- and -post -season MLB Horne Games and MLB Jewel Events) in then
sole -discretion, -`and shall -receive and retain all revenues derived therefrom. Such terns may
'include higher or..lower.- parking prices than those set forth in Section 6.3(a). above, and the
17
provision of free, discounted or prepaid parking passes for Stadium Events. The City shall honor
such parking passes without payment by the patrons. The City shall collect all parking revenues
payable at the Parking Facilities for Stadium Events as agent for the Stadium Operator in cash.
Except as provided in Section 6.3(g) below, all cash collections shall be deposited by the City on
the date of the Stadium Event or the next Business Day directly into an account designated by
the Stadium Operator. The Stadium Operator shall be responsible for al] generally applicable
taxes and surcharges payable from all sales from which the Stadium Operator or the Team or any
Team Affiliate is paid the revenues. The amount of such taxes and surcharges shall be calculated
and paid by the Stadium Operator in accordance with generally Applicable Law. In connection
therewith, the Parties agree that the parking surcharge to be remitted by the Stadium Operator for.
free, discounted or prepaid parking passes for regular season MLB Home Games shall be
calculated on an amount not less than the amount set forth in Section 6.3(a) above. Except as
provided herein, the City acknowledges' that neither it nor the Parking Manager. shall have any
right or interest in any parking revenue generated from Stadium Events or in any account or
funds held therein relating to such revenue.
(e) The Stadium Operator shall pay the Incremental Labor Costs of staffing
the applicable Parking Facilities for Stadium Events that are not regular season MLB IIome
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 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 Section
6.2.
•
Staffing. With respect to Stadium Events, the Cit `shall eriiploy; at -its cost-
(except as -provided in Section 6.3(e)), sufficient, qualified and well -trained (a) cashiers and other
]8
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 securitypersonnel 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 -Stadiuin 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 mariner, Al] 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 steal] 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 iri 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.onthe:
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 stadium. The City shall •
not permit the use of Other Development that in • any material respect interferes with the
operation of the Parking Facilities for MLB Events, or Other Events expected to have attendance
of at least 5,000 people.
6.6 . Advertising Rights; Concessions and Promotional Rights.
(a) The Team Affiliates shall have the exclusive right to sell and enter into
agreements with respect. to all Signage and advertising, rights with respect to the Parking
Preniis•es, 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 paid to the Team Affiliates' officers,.
directors and employees) derived from such sales. Such payments shall be made together with
the payments by the Stadium Operator under Section 6.3(a).. If any such sale is for non -monetary
consideration, •the revenue from that •sale shall be. determined based on the fair market value of
such consideration. The revenue attributable to the Signage for purposes of this Section 6.6(a)
shall be based on the rate card for such Signage as approved by the City Representative. 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 in •a consistent manner, of the net revenues payable to the City under Section
6:6(a), The Stadium Operator shall retain such records for no less than three (3) years. All such
books and records shall be made available to the City Representative within twenty (20) days of
the Stadium Operator's receiving written request from the City;Representative, for inspection,,
copying and audit. "....... .
'' (c) The Stadium Operator shall be responsible for installing all Signage oh the
-Parking Prernises resulting from sales under Section 6.6(a). The City shall permit the display of
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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 entertairunent or guns. •
(d) The provisions of Section 6.6(a) shall not apply to reasonable and
customary Signage placed in the Parking Facilities by retail tenants in the Other Development
with respect to themselves. Notwithstanding the foregoing, no such Signage may relate to a
business conducted by, or otherwise conflict with, any Major Sponsor; provided, however, that
no retail tenant in the Other Development that competes with a new Major Sponsor (i.e., a Major
Sponsor that enters into an agreement with a Team Affiliate or the Baseball Stadium following
the Team's first year in the Baseball Stadium) shall be required to terminate its agreement early
or to remove its competing advertising until the expiration of the term of its agreement; provided,
further, that no such agreement shall be renewable if it conflicts with a Major Sponsor at the time
of such renewal.
(e) Ambush Advertising shall be prohibited at the Parking Premises during
(and within two hours before and after) MLB Events, and Other Events expecting to have an
attendance of at least 5,000 people. "Ambush Advertising" means any promotions, contests or
other sponsorship activation activities directed at undercutting the value or impact of a
competitor's advertising signage or sponsorship at the Stadium Premises or the Soccer Stadium
(as defined in the Operating Agreement).
(f) Nothing in this Agreement shall limit the Team Affiliates' exclusive
ownership. of, and rights to exercise and exploit, the Promotional Rights as set forth in the
Operating Agreement. Such exclusive exercise and exploitation shall extend to the Parking
Premises with respect to 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 1vILB
Home Garnes to be broadcast from the Parking Premises).
(g) The following uses shall not be permitted within the Parking Premises,
unless the Stadium Operator otherwise provides its prior written consent: (i) ticket brokerage
businesses (other than brokerage services provided by a Team Affiliate for Major League
Baseball games), (ii) retail businesses whose primary business directly competes with the
naming rights sponsors of the Baseball Stadium at the time the retail business is established at
the Parking Premises, (iii) QSRs (as defined in the 'Operating Agreement), (iv) portable or
temporary food, or the give-away of food or beverage, during the period from three (3) hours_
before and one (l) hour after MLB Home Games, or other Stadium Events expected to have
attendance of at least 5,000 people, (v) the sale of beer in an outdoor; bar (beer garden) within
one hour before MLB Home Games, or other Stadium Events expected to have attendance of at
least 5,000 people, and (vi) the promotion and sale of baseball branded or themed memorabilia
and merchandise by persons other than a Team Affiliate. The City shall not permit the use of the
Parking Premises that in any material respect interferes with the operation of the Baseball
Stadium for MLB Home Carnes, or other Stadium Events expected to have'attendance 'of at least-.
5,00.0,peop1e.
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ARTICLE VII
[Omitted]
ARTICLE VIII
DEFAULTS AND REMEDIES
..O.D.erator..Default...Each of the following shall constitute -a default by the .
Stadium Operator hereunder (a "Stadium Operator Default"): .
(a) 'If the Stadimn Operator fails to pay or remit any amount payable by•the •
Stadium Operator under this Agreement and fails to cure the same within twenty (20) days after
written notice thereof to.the Stadium .Operator from the City.
(b) If the Stadium Operator • shall. breach any of the other covenants or •
provisions in this Agreement and such failure is not cured within forty (40) days after written
notice thereof is given to the Stadium Operator by•the City; provided, however; that -if it •iS' not
. reasonably possible to cure such breach within such forty (40)-day period, such cure period shall. •
be extended .for up to.one hundred eighty (180) days following the giving of the original notice if
within forty (40) days after such written notice the Stadium Operator commences and thereafter
diligently pursues the cure.
8.2 Government Party Default. .
8.2.1. Each of the following shall constitute a default by the City hereunder (a
"City Default"):
(a) If the City fails to pay or remit any amount payable by it under this
Agreement and fails to cure the 'same within twenty (20) days after written notice thereof to the
City.
(b) If the City shall breach any of the .other covenants or provisions in
.this. Agreement and such failure isnot 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 (l 80) 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.
(1?) If theCounty shall breach any ofahe 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, subh cure period shall be extended for up to one
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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-HIelp Remedies.
,(a)
`'_If :a court ; of"`competent jurisdiction or the :aibitr ators or: t 7e _. eutra
pursuant- to Article X''has dete..iiiined 'pursuant to a final judgment or award that a Stadium
Operator Default hasoccurred 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 tenninated by any.Party (upon a Default or otherv,vise), 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 teiiuinate upon .a termination of the
Construction Administration Agreement in accordance with its terns and with the consequences
set forth- therein.. Notwithstand.ing the foregoing, if this Agreement tenninates.,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 recoverdamages or to•obtain any other remedy at law or in
equity (including specific perfouiiance, 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 1 1.1.4 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 may be otherwise expressly set forth in.
this Agreement or in any of the other Stadium Agreements.
ARTICLE IX
INDEMNIFICATION
9.1 Indemnification by Stadium Operator.
(a) Except as otherwise provided in this Agreement or the other Stadium
Agreements, the Stadium Operator shall indemnify, defend and hold harmless the City and the
County and their respective officers, employees, attorneys, agents and instrumentalities
• (collectively, "Government Indemnitees") from and against any 'and all losses, liabilities,
is .damages, suits;- claims, judgments and expenses (including . reasonable attorneys' fees)
(collectively; 'Tosses"). incurred by a.. Government. Indemnitee. and caused by any of -the
following occurring during the Tenn:
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
Indernnitee 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 Indemnitees") to the extent and within
the limitations of Section 768.28 Fla. Stat., and subject to the provisions of that Statute whereby
the City shall not be held liable to pay a personal injury or property damage claim or judgment
by any one person which exceeds the sum set forth in said statute, or any claim or judgments of
portions thereof, which, when totaled with all other- occurrences, exceeds the sum set forth in
said statute, from any and all personal injury or property damage claims, liabilities, losses and
causes of action arising from the same claim which may arise solely as a result of the negligence
of the City in connection with its rights 'and obligations under this Agreement. 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 Indemnitees to the extent and within the limitations of Section 768.28 Fla.
Stat., and subject to the provisions of that Statute whereby the County shall not be 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-iliSuran C6 'ptOtOtitiii.required by this Agreement or -otherwise -provided. -by
County shall in no.way limit the responsibility to -indemnify, keep•aind 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 or -any 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_otber 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 -PO) days after any other
such notice, notify the Indemnitor in writing thereof together with a statement, of such
information respecting such matter as the Indemnified Party then has; provided, however, the
failure to notify the Indemnitor. shall not relieve the Indemnitor from •any liability which it may
have to the Indemnified Party except and solely to the extent that such failure or delay in
notification shall have adversely affected the Indemnitor's ability to defend against, settle or
satisfy any such Claim. .
(b) The Indemnitor shall be entitled, at its cost and expense, to contest or
defend any such Claim by al] 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
Indemnitor, the Indemnified Party shall have the right to (i) authorize attorneys satisfactory to it
to represent itdn 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
Indeinriifred Party learns whether the Indeinnitor will contest. or defend the Claim Attorneys'-
-fees and --:costs -accrued.-by the Indemnified -Party during this tii'ne arei; fide riilifiable If i'equzred
by the 'Indemnitor, the Indemnified Party shall cooperate fully with the Inderriiiitor 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 lndemnitor will reimburse the • Indemnified Party for any expenses reasonably
incun-ed by the Indemnified Party in so cooperating.
(c) The .Indemnitor shall pay to the Indemnified Party in cash al] 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
Indemnified Party to incur any present or future material costs, expense, obligation or liability of
any kind or nature, or require any admission or action or forbearance from action by the
Indemnified Party that would have a material adverse effect on the Indemnified Party.
(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 CIaim shall be equitably allocated between the
Indemnified Party and the Indemnitor. 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 indernnification under this Article IX and which such
event occurs prior to such expiration or termination.
ARTICLB 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 -performed, 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. Judgrnent may be entered on the arbitrators' award in any court
having jurisdiction. Each Party shall bear its own attorneys' fees and costs relating to the
arbitration, but the costs and fees of the panel and the AAA shall be bonne equally by the 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
alternative 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 b.y Expedited ADR
pursuant to this Section-10.2, provided that the Parties may institute legal.proceedmgs in a court.
'of competent jurisdiction to enforce judgment upon an Expedited ADR award in accordance with
generally Applicable Law. Each Party shall bear its own attorneys' fees and costs relating to the
27
Expedited ADR, but the costs and fees of the Neutral shall be borne equally by the Parties to the
Expedited ADR.
10.3 No Indirect Damages. In no event .shall any party be liable under any provision
of this Agreement for any special, indirect, incidental, consequential, exemplary, treble or
punitive damages, in contract, tort or otherwise, whether or not provided by statute and
whether or not caused by or resulting from the sole or concun-ent 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 ]imitation 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 Abe City:
To the attention of:
County Manager
111 NW. 1 s' Street, Suite 2900
Miami, Florida 33128
Attn: George M. Burgess•
County Attorney
111 NW 1 S' Street, Suite 2810
Miami, Florida 33128
Attn: Robert A. Cuevas,.Jr.
and Geri Keenan
City Manager
444 SW 2' d Avenue, 10`'' Floor
Miami, Florida33130
Attn: Pedro G..Hernandez .
28
With_a copy to:
If to the Stadium Operator:
• To the attention of:
City Attorney
444 SW 2" d Avenue, 9"' Floor
Miami, Florida 33130
Attn: Julie 0. Bru
and Olga Ramirez-Seijas
2267 Dan Marino Boulevard
Miami, Florida 33056
Attn: .David Samson
and Derek Jackson
With a copy to: Proskauer Rose LLP
1585 Broadway .
New York, New.York 10036.
Attn: Wayne Katz .
Notwithstanding• .the foregoing, periodic and ordinary course notices, • deliveries .and
•
communications between the 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 inconnection 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 fo 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 al] •
--:Parties whose interests are being waived.
11.6 Nobrecourse Liability of Stadium Operator Personnel. Notwithstanding and
prevailing over any contrary provision or implication in this Agreement and except for their
29
criminal acts with respect to this Agreement (i.e., acts which would constitute crimes were they
prosecuted for and convicted of such acts), the officers, directors, partners, shareho]d.ers,
members', employees and agents'ofthe Stadium Operator, the Team and the Team Affiliates (the
"Stadium Operator Personnel") shall not in any way be liable under or with respect to this
Agreement; no deficiency or other monetary or personal judgment 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
Operatorunder 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 Affliates; 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 assigrunent 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. .
(d) 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 Agreeinent; (ii) shall not be•effective unless it.
is in writing; and• (iii) shall apply only to the specific act or transaction so approved or consented
to and shall not relive the other Parties of the obligation of obtaining the consenting Party's prior
written consent or approval to any future similar. act or transaction. Notwithstanding anything
contained in this Agreement,. in the event a consent or ,approval is required, by generally
Applicable Law, to be granted by the Commission or Board, then such consent or approval. shall
be subject to the Commission's or Board's standard process of review.
1 1.11 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 re -designate) another
individual=to serve as County :Representative or City Representative; i_espectively:.. Each_.o,f:the
County: Repi'eseritativeand 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:
3]
(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) pursuantto 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 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.
Ilowever, 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 1 1.11(a)(i)-(v). In addition, and notwithstanding any of the foregoing, the
Government Representatives shall be required to seek Board and/or Commission approval, as
applicable, for anyapprovals, consents, actions, events or undertakings byanyPartyor anyother
Pl > lP >g
third parties that would violate, alter, or ignore the substantive provisions of this Agreement, or
that would create a financial obligation, cost, or expense to the County and/or the City that is,
greater than the delegated procurement authority of the County Mayor or City Manager, as set
forth in the applicable County and City Charters, County and City Codes, and any related
administrative or implementing orders. Any consent, approval, decision, determination or
extension under this Agreement by the County Representative or the City Representative shall be
binding on the County and the City, respectively. Notwithstanding and prevailing over anything
to the contrary in this Section and this Agreement, the parties agree that the Board may at any
time rescind any or all delegations of authority to the County Representative. In such instances,
the approval, consent or action sought shall be subject to approval by the Board and, if a time
frame for the County Representative's approval, consent or action is set forth in this Agreement,
the Board shall consider the matter no later than the 2nd regularly scheduled meeting of the Board
after committee consideration. All such time frames for County Representative approvals set
forth in this Agreement shall be deemed amended accordingly. The Stadium Operator and any
other Person dealing with the County or City in, connection with this Agreement or any matter
governed by this Agreement may rely and shall be fully protected in relying upon the authority
of its Government Representative to act for and bind the County and City, as the case may be, in
any such matter. The County and City shall cause its Government Representative to comply
with all of the provisions of this Agreement.
(b)' 'The President- of the Stadium Operator .or his designee (the ."Stadium
Operator Representative") -shall act as liaison and contact person between the Stadium Operator,, l:
-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 Trona 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 inconnection 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 the.provisions of this Agreement.
11.12 Headings. The headings in this Agreement. are included for convenience and
identification only and are in no way intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or of its provisions.
11.13 General Interpretive Provisions. Whenever the context may require, terns used in
this Agreement shall include the singular and plural forms, and any pronoun 'shall include the
corresponding masculine and feminine forms. The tern "including", whenever used in any.
provision of this Agreement, means including but without limiting the generality of any
description preceding or succeeding such term. Each reference to a Person shall include a
reference to such Person's successors and assigns, All references to "Articles", "Sections",.
"Schedules" or "Exhibits" shall be references to the Articles, Sections, Schedules and Exhibits to
this Agreement, except to the extent that any such reference specifically refers. to another
document. Each of the Parties has agreed to the use of the particular language of the provisions
- of this Agreement and any questions of doubtful interpretation shall. not' be'reso]v'ed 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 of this Agreement, if capable of substantial performance,
shall be enforced as if this Agreement was entered into without the invalid provision.
.11.15 Further Assurances. The Parties, whenever and as often as each shall be
reasonably requested to do so by another Party, shall execute or cause to be executed any further
documents and take any further actions as may be reasonably necessary or expedient in order to
consummate the transactions provided for in, and to carry out the purpose and intent of, this
Agreement and each of the other Stadium Agreements. The City shall assist and.cooperate with
the Stadium Operator and its Affiliates in connection with their financing activities, including by
executing such documents as the Stadium Operator or its Affiliates may reasonably request to
facilitate such financings.
11.16 Absence of Third -Party Beneficiaries. Except for the Team Affiliates, nothing in
this Agreement, express or implied, is intended to (a) confer upon any Person other than the
Parties and their permitted successors and assigns any rights or remedies under or by reason of
this Agreement as a third -party beneficiary or otherwise except as specifically provided in this
Agreement; or (b) authorize anyone not a Party to maintain an action pursuant to or based upon
this Agreement.
11.17 Governing Law. This Agreement and the interpretation of its terns 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 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 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 governmental 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 bang 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 Agreement, except for the last sentence in this Section, the . obligations of the .Stadium
Operator under this Agreement shall in all respects be subordinate to the approval requirements
and other Baseball Rules and Regulations as they are applied generally to all Major League
Baseball clubs. The .City and the County agree not to seek an injunction or 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 Stadiurn Agreements.
11.23 Mutual Covenants.
(a) The Parties,•wheiiever and as often as,.each shall, be<°easonably.:r.equsted_;
• 'to -do so- by another Party or by the Team, shall • execute. or. cause •to be executed any further
11 •'documents and take any further actions as may be reasonably necessary or expedient in order to
consummate the transactions provided for in, • and to carry out the purpose and intent of, this
35
Agreement and each of the other Stadium Agreements, except to the extent such actions by the a
Government Party requires approval by the Board or the Commission, as applicable.
(b) No 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. I-Jowever, 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.
11.25 Valid Agreement. Each Government Party agrees for the benefit of the Stadium
Operator that the Stadium Operator shall have the right to collect damages and otherwise enforce
this Agreement against such Government Party with respect to any breach of this Agreement by
such Government Party, including for any third_ party claims against the Stadium Operator
' arising from any breach -of this Agreement by a Government Party. -
• 26' Books'and'Reeards; Audit. The Stadium.Operator shall keep and maiiltaiii all ..,
'= books, records -and documents of all kinds in any way related fio the Stadium Operator's rights
aid 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. The attention of
the Parties is hereby directed to Section 2-481 of the County Code related to the Commission
Auditor.
11.28 Counterparts. This Agreement may be executed in any number of counterparts
with the same effect as if all Parties had executed the same document. All counterparts shall be
construed together and shall constitute one instrument.
With respect to the County Provisions only:
CITY 0 A11 I, FLORIDA. MIA I-DADE COUNTY, f+'LORIDA
By:By:
11 Hernandez George M. urgess
City Manager County Manager
City of Miami Miami -Dade County
EST:
By:
City Clerk `/-'D v9
APPROVED AS TO FORM
AND CORRECTNESS:
City Attorney
JULIE 0. BR
Al _LEST:
By:
Clf the Board
APPROVED AS TO FORM
AND LEGAL SUFFICIKNCY:
�N-7 G-6 k
County Attorney
MARLINS STADIUM OPERATOR, LLC APPROVED AS
REQUIREMENTS:
By:
Name:
Title:
37
By:
Name:
Risk Manalgeme)9t Dp cto
CE
Exhibit List
• Exhibit A — Entire Site,.Baseball Stadium Site and City Parking Site
Exhibit B — Parking Criteria
Exhibit C — Operating Standard
Exhibit D — Insurance
Baseball Stadium Site/City Parking Site
Exhibit A
• APPROX.
928_S'P
NW 7TH STREET
•
NW 3RD STREET
MIAMI BA
tirmlimmirw
1•1WXW GTH ST. •
APPRO>X..
79.
APPROX.
109SP.
RFACE'PARIING
;RED PAFtIING
TSTPfIUIvi.SITE
LLPARK
21 JANUARY 2009
ilk
"T BASEBALL STADIUM SITE, PARKING FACILITIES
FLORIDA IARIJNF
CM' OF \IIAMI
10,011 -DADE COUNTY
NORTH
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:
P1: Located to the East of the building that is located at the S/E corner of
NW 7th Street and NW 16'h 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 71h Street and NW 14th 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 3'd Street and NW 16`h 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 fast six levels.
Page 1 of 3
P4: Located at N/W comer of NW 3rd 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 16th Avenue between NW 4th
Street and NW 7th Street, and three (3) lots located East of NW 14th Avenue between NW
3rd Street and NW 6th Street.
Approximate number of spaces: 969
Desi an Criteria
Approximately 5,700 to 6,000 parking spaces located within the Entire Site. .
• Designshould 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 approximately 15 feet sidewalks.
6 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 6th Street. These
streets will be closed on game days.
• Lobbies to provide clear vertical circulation and to be focal points of the structure.
▪ Integrate parking access control system for baseball games, other events and non event
' 'days (i.e. ticket dispensers for other events and non -game -days). • •
Page 2 of 3
• Two-way traffic flow with 90 degree parking; or One -way traffic flow with 60/75 degree
parking at the option of the City.
• Minimum 60' parking bays, aisle widths of.24', 9' by 1.8' parking stalls on.all levels of
each structured parking garage lot on the North and South side.
• All surface lots will consist of 9' by 18' parking stalls with markers for each stall (except
for W3).
o For surface lots, except for W3, the minin7Lrrn 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 ] 3% 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 and stairs;
c. Provisions (empty conduit) for CCTV at entrances/exits to and from the
facility, elevator lobbies, and security office;
d. Concrete filled steel pipe bollards and curbs to protect equipment.
Page 3 of 3
EXHIBIT C
OPERATING STANDARD
General:
•
The Parking Facilities shall be operated as "event parking" (in a manner that
allows the ingress and egress of a large volume of cars in a short period of tim.e in a
safe and efficient manner) in accordance with other comparable sports facilities
with adjacent parking.
AU 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. Al] employees will
wear a uniform so as to present a neat, clean and professional appearance at all
times.
Types of Personnel: The City will provide sufficient personnel tooperate,
maintain and secure the Parking Facilities, including the following:
Cashiers/Parking attendants to control access at entriesand 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 i) 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•Faczlities'are-]ighted _.
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 Horne 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 26 (5 per structured lot; 1 per surface lot)
Directors 4.4 ( 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 East
and West surface lots)
Security Personnel 8 during MLB Home Games (2 for each of
the structured lots, and roving in the
surface lots)
Custodial:
The Parking Facilities, including their entrances, elevators, stairwells, aisles
and ramps, will be kept in a clean condition at all times, free of odors, debris and
trash.
Maintenance and Repairs:
The City shall keep the Parking.Facilities in good maintenance and proceed
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 Parting 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
equipmentin each Parking Facility to ensure that revenues and accounting systems`. _.
:are accurate. Parking equipment must be inspected daily prior to each Stadium
Page 2 of 3
Event This includes computers, ticket dispensers, gates, counters, credit card and
debit card machines. Parking control devices shall be equipped with locks to
prevent the devices.from:b.eing manipulated, In addition, security_s.eals.mustbe.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.
Sienage:
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 MIL Events and
Other Events expected to have attendance of at least 5,000 people, the City will be
responsible for having a vehicle towing service on -site from at least one hour before
through at least two hours after each such Stadium Event.
Parking Procedures Manual:
The City and the Stadium Operator shall develop, at least 90 days prior to
opening of .the Baseball. Stadium, a detailed Parking Procedures Manual that will
contain specific information regarding the operation of the Parking Facilities in
accordance with this Operating Standard. A Parking Employee Handbook shall be
provided to parking personnel (and updated from time to time) with all relevant
customer service information on the Baseball Stadium, the Parking Facilities,_traffic
and directions.
Page 3 of 3
CITY PARKING AGREEMENT
EXHIBIT D-1
INSURANCE REQUIREMENTS
MIAMf CITY PARING 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 of Miami, Marlins Stadium Operator, LLC, Marlins Stadium
Developer, LLC, Florida Marlins, LP and Miami -Dade County included as
an additional insured (CG 2010 11/85)
Contingent Liability (Independent Contractors Coverage)
Contractual Liability
Waiver of Subrogation
Premises & Operations Liability
Explosion, Collapse and Underground hazard
Loading and Unloading
Completed Operations for a period of 10 Years
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, Marlins Stadium
Developer, LLC, Florida Marlins, T ,P, and Miami Dade County included as
an Additional Insured
Employees as insureds
Ell Worker's Compensation
Limits ofLiability: meeting the statutory requirements of the State of
Fldrida, including, as applicable, Chapter 440, Florida Statutes,
Waiver of subrogation
EV. Employer's Liability
A. Limits- of Liability : •
• $1,000,000 for bodily injury caused by an accident, each accident.
$1,000,000 for bodily injury caused by disease, each eniployee .
$1,000,000 for bodily injury caused by disease, policy limit
V. Umbrella Policy/Excess Liability (Excess Following Form/True Excess
Following Form/True Unzbrella).in excess of the commercial general
liability, employer's liability and business automobile liability coverage
provided hereunder.
A. Liniits of Liability
• Bodily Injury and Property Damage Liability
• Each Occurrence
Aggregate
B. Endorsements Required
$20,000,000
$20,000,000
City of IVIiami, 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 Amount
City of Miami, Marlins Stadium Operator T,T C, Marlins Stadium
Developer, LLC, Florida Martins, LP and Miami Dade County included as
Obligees.
VIl. Builders' Risk
Causes ofLoss: All Risk -Specific Coverage Project Location
Valuation: Replacement Cost
Deductible: $25,000 All other Perils
5% maximum on Wind Sr, IIail and Flood
City of Miami, Marlins Stadium Operator, LLC, MarIuns 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 Parldng
Facilities, subject to customary sub -limits in the South Florida
insurance market
B. Coverage Extensions
• Materials, supplies and similar property owned by others for
which you are responsible.
• Full coverage up to policy limits for equipment breakdown.
• Temporary storage/transit coverage.
• Full coverage up to policy limits for site preparation,
re -excavation, re -preparation and re -grade in the event of a loss.
• Fences, scaffolding, construction forms coverage and signs
• Valuable papers coverage for blueprints, site plans and similar
documents.
• Trees, shrubs, sod, plants while at premises.
• Flood, including inundation, rain, seepage and water damage.
• Earthquake
• 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 en -ors and omissions.: in reporting clause
• Debris Removal
• Expediting and contractor's extra expense.
Page 3 of 4
V%II. Professional Liability
A. Limits of Liability
At a minimum
Each Claim
General Aggregate Li -nit
$ 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
EXE BIT D-2
INSURANCE REQUIREMENTS TO BE PROVIDED
BY CITY OR PARING MANAGER FOR TILL
OPERATIONAL PHASE OF TI TF,, PARKING
GARAGE FACILITY
I. Commercial General Liability (Priinary & Non Contributory)
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 2010 11/85) or
its equivalence
Contingent Liability (Independent Contractors Coverage)
Contractual Liability
Waiver of Subrogation
Premises & Operations Liability
Explosion, Collapse and Underground Hazard
Loading and Unloading
II. Business Automobile Liability
A. Limits of Liability
Bodily Injuiy 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
TIT. Worker's Compensation
Limits of Liability: meeting the statutory requirements of the State of
Florida'
Waiver of subrogation
IV. • Employer's Liability •
A. Limits .of Liability
$500,000 for bodilyinju_ry 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/Tr'ue Excess
Following Form/True Umbrella) in excess of the commercial general
liability, enzployer's liability and business automobile liability coverage
provided hereuruler.
A: Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence
Aggregate
B. Endorsements Required
$10,000,000
S10,000,000
City of Miami, Marlins Stadium Operator LLC, Florida Marlins, LP and
Miami Dade County included as an additional insured
Increased limits to General Liability, Auto and Employer's Liability
Coverage
Page 2 of 4
•
VI. Garage keeper's Legal Liability (GKL)
A. Limits of Liability $2,000,000
Other than Collision Deductible .$500/2,500 maximum
Collision Deductible $1,000/5,000 maximum
City of Miami, Marlins Stadium Operator LLC, Florida Marlins, LP and
Miami Dade County included as an additional insured
VII. Crime Coverage
A. Limits of Liability
Employee Dishonesty including
Forgery and alteration $1,000,000
Money & Securities In & Out Coverage $ 25,000
City of Miami, Marlins Stadium Operator LLC, Florida Marlins, LP and
Miami Dade County included as Loss Payee on this coverage
VIIII. 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) 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 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.witb all insurance provisions noted above prior to start‘of gperations of the
Parking. Facilities and annually prior- to the expiration of each required insurance policy.
Page 3 of 4
Every five years from the date of this Agreement, the Parties will revisit the limits and
sub -limits of the policies above and adjust to levels that are reasonable and customary in
"theSou th Florida insurance market.
Companies authorized to do business in the State of Florida, with the follov, ing qualifications,
shall issue all insurance policies required above:
The company must be rated no less than "A-" as to management, and no less than "Class
VII" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by
A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or
certificates of insurance are subject to review and verification by Risk Management prior
to insurance approval.
Page 4 of 4
EXHIBIT "E"
Parking Assignment Agreement
Assignment 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 terms used herein
and not otherwise defined are defined in the Parking Agreement.)
Assignor and Assignee agree as follows:
1. Assignor hereby assigns to Assignee its rights under the Parking Agreement to
receive revenues derived from the use of the Parking Facilities for Stadium Events.
2. Assignee hereby assumes Assignor's obligation to pay, or cause to be paid, to the
City (a) the amounts payable by Assignor under Sections 6.3(a) and (b) of the Parking
Agreement and (b) the generally applicable taxes and surcharges payable by Assignor under
Section 6.3(d) of the Parking Agreement.
3. Assignee shall have the same rights and obligations as Assignor under the Parking
Agreement with respect to procedural matters governing the revenues and payments referred to
above, such as the right to audit the City's books and records and the obligation to make its
books and records available to the City for audit.
Assignor:
Marlins Stadium Operator, LLC
By:
amson
Assignee:
Stadium Parking, LLC
By:
544,
Daivid P4 amson
0255/48633-016 Current/16651635v2
EXHIBIT "F"
Bond Resolution
City of Miami
Legislation
Resolution: R-09-0509
City Hall
3500 Pan American Drive
• Miami, FL 331.33
www.miamigov.com
File Number: 09-01150b
Final Action Date: 10/22/2009
A RESOLUTION OF THE CITY COMMTSSSION OF THE CITY OF MIAMI, FLORIDA, WITH
ATTACHMENT(S), PROVIDING FOR THE ISSUANCE OF NOT TO EXCEED $120,000,000 IN
AGGREGATE PRINCIPAL AMOUNT OF CITY OF MIAMI, FLORIDA SPECIAL
OBLIGATION PARKING REVENUE BONDS, SERIES 2009 (MARLINS STADIUM PROJECT)
TO BE ISSUED IN ONE OR MORE SERIES ON A TAXABLE AND TAX-EXEMPT BASIS, TO
FINANCE THE CITY'S PORTION OF THE CONSTRUCTION OF THE PARKING FACILITIES
FOR THE NEW FLORIDA MARLINS BASEBALL STADIUM AND COSTS OF ISSUANCE
ASSOCIATED WITH THE SERIES 2009 BONDS; MAKING CERTAIN FINDINGS AND
DETERMINATIONS; DELEGATING TO THE CITY MANAGER THE DETERMINATION OF
CERTAIN MATTERS AND DETAILS CONCERNING THE SERIES 2009 BONDS; PROVIDING
FOR THE FUNDING OF A RESERVE FUND; AUTHORIZING A NEGOTIATED SALE OF THE
SERIES 2009 BONDS; APPROVING THE FORM AND AUTHORIZING THE EXECUTION
AND DELIVERY OF A BOND PURCHASE AGREEMENT IN CONNECTION THEREWITH;
APPOINTING A PAYING AGENT AND BOND REGISTRAR; APPROVING THE FORM AND
AUTHORIZING THE EXECUTION AND DELIVERY OF A PAYING AGENT AND
REGISTRAR AGREEMENT; APPROVING UNCERI1HCATED, BOOK ENTRY ONLY
REGISTRATION OF SAID SERIES 2009 BONDS WITH THE DEPOSITORY TRUST
COMPANY; APPROVING THE FORM AND AUTHORIZING THE DISTRIBUTION OF A
PRELIMINARY OFFICIAL STATEMENT AND AN OFFICIAL STATEMENT AND
PROVIDING FOR THE SELECTION OF A FINANCIAL PRINTER THEREFOR;
COVENANTING TO PROVIDE CONTINUING DISCLOSURE IN CONNECTION WITH THE
SERIES 2009 BONDS IN ACCORDANCE WITH SECURITIES AND EXCHANGE
COMMISSION RULE 15c2-12 AND APPROVING THE FORM AND AUTHORIZING THE
EXECUTION AND DELIVERY OF A CONTINUING DISCLOSURE AGREEMENT WITH
RESPECT THERETO; AUTHORIZING ALL REQUIRED ACTIONS BY THE CITY MANAGER
AND ALL OTHER CITY OFFICI_ALS; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, on March 3, 2008, the City of Miami, Florida (the "City"), Miami -Dade
County; Florida (the "County") and Florida Marlins, L.P. (the "Stadium Operator") executed a
Baseball Stadiuin Agreement outlining the terms and conditions which they would move
forward to design, develop, construct and operate a Marlins Baseball Stadium and related
parking -facilities to be located on the old Orange Bowl Stadium.site;
WHEREAS, on April'15, 2009, the City, the County'and the Marh s Stadium Operator; .
LLC entered into the City Parking Agreement (the 'City"Parking Agreement") which provides
- :City of Miami
Page 1 of 43 File Id: 09-01150b (Version 2) Printed On: 6/30/2010
for the construction, operation and use of parking facilities to be made available to users of the
Marlins Baseball Stadium and other users;
WHEREAS, the City desires to provide for financing its portion of the parking facilities
as outlined in the City Parking Agreement by issuing the Series 2009 Bonds; and
WHEREAS, the City desires to approve the negotiated sale of such Series 2009 Bonds, to
approve the forms of certain agreements in connection with the issuance of such Series 2009
Bonds, to delegate to the City Manager the determination of certain details of the Series 2009
Bonds, and to authorize the appropriate officers of the City to do all actions necessary and in the
best interests of the City in connection with the sale, issuance and delivery of the Series 2009
Bonds.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF MIAMI, FLORIDA:
ARTICLE I
AUTHORITY FOR THIS RESOLUTION
SECTION 1.01 Authority. This Resolution is adopted pursuant to the Constitution of
the State of Florida (the "State"); Chapter 166, Florida Statutes as amended, Part VII of Chapter
159, Florida Statutes, as amended; the City Charter of the City of Miami, Florida; and other
applicable provisions of law (collectively, the "Act").
ARTICLE II
DEFINITIONS
SECTION 2.01 Definitions. In addition to the words and terms defined in the recitals
to this Resolution, as used herein, unless the context otherwise requires:
"Account" means an account created and established under this Resolution.
"Act" shall.have the meaning ascribed in Article I hereof.
"Additional Parity Obligations" means additional obligations issued in compliance with
the terms and conditions and limitations contained in this Resolution and which (i) shall have a
lien on the Pledged Funds equal to that of the Series 2009 Bonds and (ii) shall be payable from
the .proceeds of the Pledged Funds on a parity with the Series 2009 Bonds..
City of Miami - Page 2 of 43 File Id: 09-01150b (Version 2) Printed On: 6/30/2010
"Amortization Requirements" means the funds to be deposited in the Sinking Fund for
the payment at maturity or redemption of a portion of Term Bonds, as established by the City at
orbefore the delivery of the Bonds.
"Annual Budget" means the budget or budgets, as amended and supplemented from
time to time, prepared by the City for each Fiscal Year in accordance with the laws of the State.
"Annual Debt Service Requirement" for any Fiscal Year, shall mean the respective
amounts which are needed to provide:
(a) for payment of the interest on all Bonds then Outstandirng which is
payable on each Interest Payment Date in such Fiscal Year;
(b) for payment of the principal of all Serial Bonds then Outstanding which is
payable upon the maturity of such Serial Bonds in such Fiscal Year; and
(c) the Amortization Requirements, if any, for the Term,Bonds of such series
for such Fiscal Year.
"Authorized Depository" means any bank, trust company, national banking association,
savings and loan association, savings bank or other banking association selected by the City as a
depository, which is authorized under State law to be a depository of municipal funds and
which has complied with all applicable State and federal requirements concerning the receipt of
City funds.
"Bond Amortization Account" means the Bond Amortization Account within the
Sinking Fund established pursuant to Section 7.01 of this Resolution.
"Bond Counsel" means Bryant Miller Olive P.A.
"Bond Purchase Agreement" means the Bond Purchase Agreement substantially in the
form attached to this Resolution as Exhibit "A" hereto between the Underwriters and the City
with respect to the sale of the Series 2009 Bonds.
"Bond Registrar" means, initially, ID Bank, National Association and, thereafter, any
other agent designated from time to time by the City, by resolution, to maintain the registration
books for the Series 2009 Bonds or to perform other duties with respect to registering the
transfer of the Series 2009 Bonds.
"Bondholder," "Holder" or "registered owner" means the person in whose name any
. Bond is registered on the registration books maintained by the Bond Registrar.
"Bonds" means the Series 2009 Bonds and any Additional Parity Obligations issued
hereunder.
City of•Miami 7 Page 3 of 43 File Id: 09-01150b (Version 2) Printed On: 6/30/2010
"Business Day" means any day other than (i) a Saturday or Sunday, (ii) a day on which
banking institutions in the city or cities in which the designated office of the Paying Agent is
located are authorized by law or executive order to close, (iii) any day on which the Federal
Reserve Bank of Atlanta or the New York Stock Exchange is closed, or (iv) a day on which the
Securities Depository is closed.
"City" means the City of .Miami, Florida.
"City Attorney" means the City Attorney of the City or any designated Assistant City
Attorney.
"City Cozninission" means the City Commission of the City of Miami, Florida.
"City Manager" means the City Manager of the City or any Assistant City Manager or
other designee of the City Manager.
"Clerk" means the City Clerk or any Deputy City Clerk of the City.
"Closing Date" means the date of issuance and delivery of the Series 2009 .Bonds to the
Underwriters, being the original purchasers thereof.
"Code" means the Internal Revenue Code of 1986, as amended.
"Construction Fund" means the Construction Fund established pursuant to Section 5.11
of this Resolution.
"Convention Development Tax " means a portion of the revenues collected annually
(excluding any carryover from prior year collections) by the County of the levy on the exercise
within its boundaries of the taxable privilege of leasing or letting transient rental
accommodations at the rate of three percent (3%) of the total consideration charged therefore as
currently authorized pursuant to Section 212.0305.(4)(b), Florida Statutes (net of Tax Collector
administrative costs for local administration pursuant to Section 212.0305(5)(b)5, Florida
Statutes) and allocated to the City as provided in the Interlocal Agreement.
"County" means Miami -Dade County, Florida.
"Credit Bank" means the person (other than an Insurer) providing a Credit Facility.
"Credit Facility" means a letter of credit, a line of credit or another credit enhancement
or liquidity facility•provided by a Credit Bank (other than an Insurance Policy) issued by an
Insurer).
"Finance Director"- means the Finance Director :of the .City. or.. other designee ::of..the.:;:
Finance Director.
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"Fiscal Year" means the .period commencing on October 1 of each year and ending on
the succeeding September 30, or such other consecutive 12-month period as may be hereafter
designated as the fiscal year of the City pursuant to general law.
"Fund" shall mean a fund created and established under this Resolution.
"Government Obligations" means:
(a) Direct obligations of, or obligations guaranteed by, the United States of
America;
(b) Any bonds or other obligations of any state of the United States of
America or of any agency, instrumentality or local governmental unit of any such state
(i) which are not callable prior to maturity or as to which irrevocable instructions have
been given to the trustee of such bonds or other obligations by the obligor to give due
notice of redemption and to call such bonds for redemption on the date or dates
specified in such instructions, (ii) which are secured as to principal and interest and
redemption premium, if any, by a fund consisting only of cash or bonds or other
obligations of the character described in clause (a) hereof which fund may be applied
only to the payment of such principal of and interest and redemption premium, if any,
on such bonds or other obligations on the maturity date or dates thereof or the
redemption date or dates specified in the irrevocable instructions referred to in
subclause (i) of this clause (b), as appropriate, and (iii) as to which the principal of and
interest on the bonds and obligations of the character described in clause (a) hereof
which have been deposited in such fund along with any cash on deposit in .such fund
are sufficient to pay principal of and interest and redemption premium, if any, on the
bonds or other obligations described in this clause (b) on the maturity date or dates
thereof or on the redemption date or dates specified in the irrevocable instructions
referred to in subclause (i) of this clause (b), as appropriate;
(c) Evidences of indebtedness issued by the Federal Home Loan Banks,
Federal Hoene Loan Mortgage Corporation (including participation certificates), Federal
Financing Banks, or any other agency or instrumentality of the United States of America
created by an act of Congress provided that the obligations of such agency or
instrumentality are unconditionally guaranteed by the United States of America or any
other agency or instrumentality of -the United States of America or of any corporation
wholly -owned by the United States of America; and
(d) Evidences of ownership .of proportionate interests in future interest and
principal payments on obligations described in (a) held by a bank or trust company as
custodian.
1'J nsura lice .Policy'•- means a policy of municipal=rbond insurance, financial . guaranty
insurance, or'similar credit enhancement provided by ail I nsurer.
City of Miami
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• "Insurer" means the issuer of a municipal bond insurance policy guaranteeing the
payment of principal and interest on the Series 2009 Bonds when due.
"Interest Account" means the Interest Account within the Sinking Fund established
pursuant to Section 7.01 of this Resolution.
"Interest Payment Date" means each January 1st and July 1st, con- nnencilg on January 1,
2010.
"Interlocal Agreement" means the Interlocal Agreement entered between the City and
County dated July 1, 2009 regarding the use and disposition of the Convention Development
Tax.
"Mayor" means the Mayor of the City or, in his or her absence or inability to perform,
such member of the Commission as may be appointed as acting Mayor of the City.
"Maximum Annual Debt Service" means, at any time and with respect to all of the Series
2009 Bonds and any Additional Parity Obligations, the greatest Annual Debt Service
Requirement in the then current or any succeeding Fiscal Year.
"MLB Home Games" shall have the meaning ascribed to such term in the City Parking
Agreement.
"Non -Ad Valorem Revenues" means all revenues of the City derived from any source
other than ad valorem taxation on real or personal property, which are legally .available to make
payments required herein.
"Official Statement" means that certain Official Statement with respect to the issuance of
the Series 2009 Bonds, as such Official Statement shall be approved by the City Manager in
accordance with the provisions of this Resolution.
"Parking Revenues" means the revenues received by the City from the Stadium
Operator with respect to the Project in connection with the MLB Home Games pursuant to the
City Parking Agreement (excluding the Parking Surcharge).
"Parking Surcharge" means 80% of the portion which is derived from the Project in
connection with the Parking Revenues of the 15% parking surcharge that is charged at public
parking facilities within the City approved by the electorate of the City on November 4, 2003,
imposed pursuant to Section 166.271, Florida Statutes and pursuant to Ordinance No. 04-00466
enacted by the City Commission on July 22, 2004.
"Paying Agent". means, initially, 1'D Bank, National Association .and, thereafter, .any
.;other agent which:is _inn •Authorized Depository, designated.:by,the City by resolution to serve as
a. Paying. Agent for. the Series ,2009 Bonds that shall have agreed to arrange for tine timely
payment of the principal of, redemption premium, if any, and interest on the Series .2009 Bonds
City of Miami Page 6 of 43 File Id: 09-01150b (Version 2) Printed On: 6/30/2010
to the registered owners thereof, from funds made available therefor by the City, and any
successors designated pursuant to this Resolution.
"Paying Agent and Registrar Agreement" means the Paying Agent and Registrar
Agreement with respect to the Series 2009 Bonds between the City and the Paying Agent, or any
successor thereto in its capacity as Paying Agent and Bond Registrar, substantially in the form
attached hereto as Exhibit "B."
"Permitted Investments" means and include such obligations as shall be permitted to be
legal investments of the City by the laws of the State.
"Pledged Funds: means collectively, the (i) Pledged Revenues (ii) all monies, including
Non -Ad Valorem Revenues deposited into the Funds and Accounts and (iii) the earnings on
investments in the Funds and Accounts created herein pledged to secure the Bonds (with the
exception of the Rebate Fund).
"Pledged Revenues" means the Convention Development Tax, the Parking Revenues
and the Parking Surcharge.
"Principal Account" means the Principal Account within the Sinking Fund established
pursuant to Section 7:01 of this Resolution.
"Preliminary Official Statement" means the Preliminary Official Statement relating to
the Series 2009 Bonds, • to be dated as of the date of its distribution, substantially in the form
attached hereto as Exhibit "C".
"Project" means the construction of the parking appurtenant and ancillary facilities,
including but not limited to, retail space surface lots and parking structures for not to exceed
6,000 parking spaces located at the site commonly referred to as the Marlins Baseball Stadium.
"Rebate Fund" means the Rebate Fund established and pursuant to Section 9.08 of this
Resolution.
"Reserve Fund" means the Reserve Fund established pursuant to Section 7.01 of this
Resolution.
"Reserve Product" means bond insurance, a surety bond or a letter of credit or other
credit facility used in lieu of or in substitution, in whole or in part, for any cash or securities on
deposit in the Reserve Fund.
"Reserve Product Provider" means any provider of a Reserve Product designated by the
City Manager for deposit in the Reserve Fund.
Reserve'Regffirement"-means,. with respect to the Series_2009 Bonds, an amount equal
to the lesser of (i) ten 10% percent of the proceeds of the Series 2009 Bonds, u) Maximum
City of Miaml
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Annual Debt Service for the Series 2009 Bonds, or (iii) one hundred twenty-five (125%) percent
of the average Annual Debt Service Requirement for the Series 2009 Bonds. With respect to
Additional Parity Obligations, Reserve Requirement shall be defined in a supplemental.
resolution.
"Revenue Fund" means the Revenue Fund established pursuant to Section 7.01 of this
Resolution.
"Securities Depository" means The Depository Trust Company (a limited purpose trust
company), New York, New York, until arty successor Securities Depository shall have become
such pursuant to the applicable provisions of this Resolution and, thereafter, "Securities
Depository". shall mean.the successor Securities Depository.. Arty Securities Depository shall be
a securities depository that is a clearing agency under federal law operating and maintaining,
with its participants or otherwise, a book -entry system to record ownership of beneficial
interests in the Bonds, and to effect transfers of Series 2009 Bonds, in book -entry form.
"Serial Bonds" means all Bonds other than Term Bonds.
"Series 2009 Bonds" means collectively, the Series 2009A Bonds and Series 2009B Bonds.
"Series 2009A Bonds" means the City of Miami, Florida Tax -Exempt Special Obligation
Parking Revenue Bonds, Series .2009A (Marlins Stadium Project) authorized herein.
"Series 2009B Bonds" means the City of Miami., Florida Taxable Special Obligation
Parking Revenue Bonds, Series 2009B (Marlins Stadium Project) authorized herein.
"Sinking Fund" means the Sinking Fund established pursuant to Section 7.01 of this
Resolution.
"Term Bonds" means Bonds for which Amortization Requirements are established on or
before the date of delivery of the Bonds in accordance with the provisions of this Resolution.
"Total Debt Service Requirement" means the aggregate Arunual Debt Service
Requirement for all Fiscal Years.
"Underwriters" means, with respect to the Series 2009 Bonds, Merrill Lynch Pierce,
Fenner & Smith Incorporated, RBC Capital Markets, Inc., Raymond James & Associates, Inc.,
Morgan Keegan & Company, Inc. and Goldman Sachs & Co.
SECTION 2.02 Singular/Plural. Words importing singular number shall include the
plural number in each case and vice versa, and words importing persons shall include firms,
corporations or other entities including governments or governmental .bodies. Words of the
masculine gender shall be deemed and construed to include correlative words of the feminine
and neutral genders.
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ARTICLE III
FINDINGS
SECTION 3.01 Findings and Determinations. It is hereby ascertained, determined and
declared that:
A. It is in the best interests of the City, its citizens and taxpayers to issue the Series
2009 Bonds.
B. The Series 2009 Bonds shall be payable from the Pledged Funds.
C. There is expected to be sufficient Pledged Funds to pay the interest and principal
on the Series 2009 Bonds as the same becomes due and payable.
D. The Pledged Revenues are not now pledged or encumbered in any matter.
E. Neither the City nor the State of Florida or any political subdivision thereof or
governmental authority or body therein, shall ever be required to levy ad valorem taxes to pay
the Series 2009 Bonds and the Series 2009 Bonds shall not constitute a lien upon any properties
owned by or situated within the City, except as provided herein with respect to the Pledged
Funds, in the manner and to the extent provided herein.
F. In accordance with Section 218.385(1), Florida Statutes, as amended, the
Commission hereby finds, determines and declares that a negotiated sale of the Series 2009
Bonds is in the best interests of the City due to the complexities of the market and timing of the
issuance of the Series 2009 Bonds.
ARTICLE IV
THIS INSTRUMENT TO CONSTITUTE CONTRACT
SECTION 4.01 Contract. In consideration of the acceptance of the Series 2009 Bonds
authorized to be issued hereunder by those who shall hold the same from time to time, this
Resolution shall be deemed to be and shall constitute a contract between the City and the
Bondholders. The covenants and agreements herein set forth to be performed by the City shall
be for the equal benefit, protection and security of the Bondholders and all Series 2009 Bonds
shall be of equal rank and without preference, priority or distinction over., any other thereof,
except as expressly provided herein.
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ARTICLE V
AUTHORIZATION,DES CRIPTION,
FORM AND TERMS OF SERIES 2009 BONDS
SECTION 5.01 Authority for the Issuance of Series 2009 Bonds. The City hereby
authorizes the issuance of the Series 2009 Bonds in three series and pursuant to the provisions
hereof, to be known as "City of Miami, Florida Tax -Exempt Special Obligation Parking Revenue
Bonds, Series 2009A (Marlins Stadium .Project)" and "City of Miami, Florida Taxable Special
Obligation Parking Revenue Bonds, Series 2009B (Marlins Stadium Project) are' hereby
authorized to be issued at one time or as needed in an aggregate principal amount not to exceed
One Hundred Twenty Million Dollars ($120,000,000), for the purpose of, together with other
available moneys, to pay for the cost of the Project, to fund a deposit to the Reserve Fund or pay
cost of a Reserve Product and to pay the costs of issuance of the Series 2009 Bonds.
SECTION 5.02 Description of Series 2009 Bonds. The Series 2009 Bonds shall be' dated
the date of their issuance; shall bear interest at such rate or rates not exceeding the maximum
rate allowed by State law, the actual rate or rates or method of determining rates 'shall be as
determined and stated in the Bond Purchase Agreement; may be payable at such times as are
fixed by the Bond Purchase Agreement; and .shall mature on such date in such years and
amounts as will be fixed by the Bond Purchase Agreement and may be Serial and/or Term
Bonds.
Each Series 2009 Bond shall bear interest from the Interest Payment Date next preceding
the date on which it is authenticated, unless authenticated on an .Interest Payment Date, in
which case it shall bear interest from such Interest Payment Date, or, unless authenticated prior
to the first Interest Payment Date, in which case it shall bear interest from its date; provided,
however, that if at the time of authentication interest is in default, such Series 2009 Bond shall
bear interest from the date to which interest shall have been paid.
The Series 2009 Bonds shall be issued as fully registered, book -entry only bonds in the
denomination of $5,000 each or any integral multiple thereof through the book -entry only
system maintained by the Securities Depository, which will act as securities depository for the
Series 2009 Bonds, as further described in Section 5.19 hereof. The Series 2009 Bonds may have
endorsed thereon such legends or text as may be necessary or appropriate to conform to any
applicable rules and regulations of any governmental authority or any usage or requirement of
law with respect thereto.
Each of the Series 2009 Bonds shall be numbered consecutively from 1 upward preceded
by the letter "R" prefixed to the number of the Series 2009 Bonds. The: principal.of..and.the
interest -on the Series 2009 Bonds shall be payable in any coin or currency of the United States of
:America which on the respective dates of payment thereof is legal tender for the payment°of•::
public and private debts: The principal of and redemption premium, if any, on the Series 2009
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City of Miami
Bonds shall be payable upon presentation and surrender at the principal office of the Paying
Agent. Interest on the Series 2009 Bonds shall be paid by check or draft drawn upon the Paying
Agent and mailed to the registered owners of the Series 2009 Bonds at the addresses as they
appear on the registration books maintained by the Bond Registrar at the close of business on
the 15th day (whether or not a business day) of the month next preceding the Interest Payment
Date (the "Record Date"), irrespective of any transfer or exchange of such Series 2009 Bonds
subsequent to such Record Date and prior to such Interest Payment Date, unless the City shall
be in default in payment of interest due on such Interest Payment Date; provided, however, that
(i) if ownership of Series 2009 Bonds is maintained in a book -entry only system by the Securities,
Depository, such payment may be made by automatic funds transfer (wire) to such Securities
Depository or its nominee or (ii) if such Series 2009 Bonds are not maintained in a book -entry
only system by the Securities Depository, upon writtemrequest of the holder of $1,000,000 or
more in principal amount of Series 2009 Bonds, such payments may be made by wire transfer to
the bank and bank account specified in writing by such holder (such bank being a bank within
the continental United States), if such holder has advanced to .the Paying Agent the amount
necessary to pay the cost of such wire transfer or authorized the Paying Agent to deduct the
cost of such wire transfer from the payment due such holder. In the event of any default in the
payment of interest, such defaulted interest shall be payable to the persons in whose names
such Series 2009 Bonds are registered at the close of business on a special record date for the
payment of such defaulted interest as established by notice deposited in the U.S. mails, postage
prepaid, by the Paying Agent to the registered owners of the Series 2009 Bonds not less than
fifteen (15) days preceding such special record date. Such notice shall be mailed to the persons
in whose names the Series 2009 Bonds are registered at the close of business on the fifth (5th)
day (whether or not a business day) preceding the date of mailing. The registration of any
Series 2009 Bond may be transferred upon the registration books upon delivery thereof to the
principal office of the Bond Registrar accompanied by a written instrument or instruments of
transfer in form and with guaranty of signature satisfactory to the Bond Registrar, duly
executed by the Bondholder or his attorney -in -fact or legal representative containing written
instructions as to the details of the transfer of such Series 2009 Bond, along with the social
security number or federal employer identification number of such transferee. In all cases of a
transfer of a Series 2009 .Bond, the Bond Registrar shall at the earliest practical time in
accordance with the terms hereof enter the transfer of ownership in the registration books and
shall deliver in the name of the new transferee or transferees a new fully registered Series 2009
Bond or Bonds of the same maturity and in authorized denomination or denominations, for the
same aggregate principal amount and payable from the same source of funds. The City and the
Bond Registrar may charge the Bondholder .for the registration of every transfer or exchange of
a Series 2009 Bond an amount sufficient to reimburse them for any tax, fee or any other
governmental charge required (other than by the City) to be paid with respect to the registration
of such transfer, and may require that such amounts be paid before any such new Series 2009
Bond shall be delivered.
The City, the Bond Registrar, and the Paying Agent 'May treat the registered owner
any. Series 2009 Bond as the absolute owner of- sudi Series 2009. Bond for the purpose of
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receiving payment of the principal thereof and the interest and redemption premium, if any,
thereon. Series 2009 Bonds may be exchanged at the office of the Bond Registrar for a like
aggregate principal amount of Series 2009 Bonds, or other authorized denominations of the
same series and maturity.
SECTION 5.03 Execution of Series 2009 Bonds. The Series 2009 Bonds shall be
executed in the name of the City by the City Manager and the seal of the City shall be
imprinted, reproduced or lithographed on the Series 2009 Bonds and attested to and
countersigned by the Clerk. In addition, the City Attorney shall sign the Series 2009 Bonds,
showing approval of the form and correctness thereof. The signatures of the City Manager, the
Clerk and the City Attorney on the Series 2009 Bonds may be by facsimile. If any officer whose
signature appears on the Series 2009 Bonds ceases to hold office before the delivery of the Series
2009 Bonds, his signature shall nevertheless be valid and sufficient for all purposes. In addition,
any Series 2009 Bond may bear the signature of, or may be signed by, such persons as at the
actual time of execution of such Series 2009 Bond shall be the proper officers to sign such Series
2009 Bond, although at the date of such Series 2009 Bond or the date of delivery thereof such
persons may not have been such officers.
Only such of the Series 2009 Bonds as shall have been endorsed thereon by a certificate
of authentication substantially in the form hereinafter set forth in Section 5.10 hereof, duly
manually executed by the Bond Registrar, shall be entitled to any right or benefit under this
Resolution. No Series 2009 Bond shall be valid or obligatory for any purpose unless and until
such certificate of authentication shall have been duly manually executed by the Bond Registrar,
and such certificate of the Bond Registrar upon any such Series 2009 Bond shall be conclusive
evidence that such Series 2009 Bond has been duly authenticated and delivered under this.
Resolution. The Bond Registrar's certificate of authentication on any Series 2009 Bond shall be
deemed to have been duly executed if signed by an authorized officer of the Bond Registrar, but
it shall not be necessary that the same officer sign the certificate of authentication on all of the
Series .2009 Bonds that may be issued hereunder at any one time. The foregoing
notwithstanding, if, at any time, the City serves as the Bond Registrar under this Resolution,
any Series 2009 Bonds delivered during such time that the City serves as the Bond Registrar
shall be authenticated by the manual signature of the Finance Director, and the registered
owner of any Series 2009 Bond so. authenticated shall be entitled to the benefits of this
Resolution.
SECTION 5.04 Bonds Mutilated, Destroyed, Stolen or Lost. If any Series 2009 Bond is
mutilated, destroyed, stolen or lost, the City or its agent may, in its discretion (i) deliver a
duplicate replacement Series 2009 Bond, or (ii) pay a Series 2009 Bond that has matured or is
about to mature or has been called for redemption. A mutilated .Series 2009 Bond shall be
surrendered to and cancelled by the Bond Registrar. The Bondholder must furnish the City or
its agent proof of ownership of any destroyed, stolen or lost Series 2009 Bond; post satisfactory
i ndemnity;'comply with any reasonable conditions the City or its agent may prescribe; and pay
..the reasonable expenses of the City or its agent.
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Any such duplicate Series 2009 Bond shall constitute an original contractual obligation
on the part of the City whether or not the destroyed, stolen or lost Series 2009 Bond be at any
time found by anyone, and such duplicate Series 2009 Bond shall be entitled to equal and
proportionate benefits and rights as to lien on, and source of payment of and security for
payment from, the funds pledged to the payment of the Series 2009 Bond so mutilated,
destroyed, stolen or lost.
SECTION 5.05 Provisions for Redemption. The Series 2009 Bonds may be made
subject to redemption prior to their maturity at such times and in such mariner as set forth in
the Bond Purchase Agreement and approved by the City Manager pursuant to the authority
described herein. Noticeof redemption shall be given by deposit in the U.S. mails of a copy of a
redemption notice, postage prepaid, at least thirty (30) days before the redemption date to all
registered owners of the Series 2009 Bonds or portions of the Series 2009 Bonds to be redeemed
at their addresses as they appear on the registration books .to be maintained in accordance with
the provisions hereof. Failure to mail any such notice to .a registered owner of a Series 2009
Bond, or any defect therein, shall not affect the validity of the proceedings for redemption of
any Series 2009 Bond or portion thereof with respect to which no failure or defect occurred.
So long as all Series 2009 Bonds are held under a book -entry system by the Securities
Depository, notices of redemption shall be sent only to the Securities Depository or its nominee.
Selection of book -entry interests in the Series 2009 Bonds called, and notice of the call to the
owners of those interests called, is the responsibility of the Securities Depository (or any
successor securities depository) pursuant to its rules and procedures, and of its participants and
indirect participants. Any failure of the Securities Depository (or any successor securities
depository) to advise any participant, or of any participant or any indirect participant to notify
the owner of a book -entry interest, of any such notice and its content or effect shall not affect the
validity of any proceedings for the redemption of any Series 2009 Bonds.
Such notice shall set forth the date fixed for redemption, the rate of interest borne by
each Series 2009 .Bond being redeemed, the name and address of the Bond Registrar and Paying .
Agent, the redemption price to be paid and, if less than all of the Series 2009 Bonds then
Outstanding shall be called for redemption, the distinctive numbers and letters, including
CUSIP numbers, if any, of such Series 2009 Bonds to be redeemed and, in the case of Series 2009
Bonds to be redeemed in part only, the portion of the principal amount thereof to be redeemed.
If any Series 2009 Bond is to be redeemed in part only, the notice of redemption which relates to
such Series 2009 Bond shall also state that on or after the redemption date, upon surrender of
such Series 2009 Bond, a new Series 2009 Bond or Series 2009 Bonds in a principal amount equal
to the unredeemed portion of such Series 2009 Bond will be issued.
If applicable, in the case of optional redemption only, such notice may be given as a
conditional notice of redemption, in which case such notice shall state the condition and
provide that if such condition is not met on or prior to such redemption date, no such
redemption shall occur.
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Any notice mailed as provided in this Section shall be conclusively presumed to have
been duly given, whether or not the owner of such Series 2009 Bond receives such notice. •
The Bond Registrar shall not be required to -transfer or exchange any Series 2009 Bond
after the mailing of a notice of redemption nor during the period of fifteen (15) days next
preceding mailing of a notice of redemption.
SECTION 5.06 Effect of Notice of Redemption. Notice having been given in the
manner and under the conditions hereinabove provided, the Series 2009 Bonds or portions of
Series 2009 Bonds so called for redemption shall, provided that all, conditions to such
redemption, if any are met, on the redemption date designated in such notice, become and be
due. and payable at the redemption price provided for redemption of such Series 2009 Bonds or
portions of Series 2009 Bonds on such date. On the date so designated for redemption, moneys
for payment of the redemption price being held in separate accounts by the Paying Agent, an
escrow agent or an Authorized Depository in trust for the registered owners of the Series 2009
Bonds or portions thereof to be redeemed, all as provided in this Resolution, interest on the
Series 2009 Bonds or portions of Series 2009 Bonds so called for redemption shall cease to
accrue, such Series 2009 Bonds .and portions of Series 2009 Bonds shall cease to be entitled to
any lien, benefit or security under this Resolution and shall be deemed paid hereunder, and the
registered owners of such Series 2009 Bonds or portions of Series 2009 Bonds shall have no right
in respect thereof except to receive payment of the redemption price thereof and, to the extent
provided in Section 5.07,hereof, to receive .Series 2009 Bonds for any unredeemed portions of
the Series 2009 Bonds.
SECTION 5.07 Redemption of Portion of Registered Bonds. In case part but not all of
an outstanding fully registered Series 2009 Bond shall be selected for redemption, the registered
owner thereof shall present and surrender such Series 2009 Bond to the designated Paying
Agent for. payment of the principal amount thereof so called for redemption, and the City shall
execute and deliver to or upon the order of such registered owner, without charge therefor, for
the unredeemed balance of the principal amount of the Series 2009 Bonds so surrendered, a
Series 2009 Bond or Series 2009 Bonds fully registered as to principal and interest.
SECTION 5.08 Series 2009 Bonds Called for Redemption not Deemed Outstanding.
Series 2009 Bonds or portions of Series 2009 Bonds that have been duly called for redemption
under the provisions hereof, and with respect to which amounts sufficient to pay the principal
of, redemption premium, if any, and interest to the date fixed for redemption shall be delivered
to and held in separate trust accounts by an escrow agent, any Authorized Depository or any
Paying Agent (other than the City) in trust for the registered owners thereof, as provided in this
Resolution, shall not be deemed to be outstanding under the provisions of this Resolution and
shall cease to be entitled to any lien, benefit or security under this Resolution, except to receive
the payment of the redemption -price on or after the, :designated .date of redemption from
moneys deposited with -or held by the escrow agent, Authorized.Depository or Paying Agent
(other than the City), as the case may be, for such redemption ofithe;Series `2009.Bonds and, to
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the extent provided in the preceding section, to receive Series 2009 Bonds for any unredeemed •
portion of the Series 2009 Bonds.
SECTION 5.09 Date for Payment of Series 2009 Bonds. If the date for payment of the
principal of, redemption premium, if any, or interest on the Series 2009 Bonds is not a Business
Day, then the date for such payment shall be the next succeeding Business Day, and payment
on such day shall have the same force and effect as if made on the nominal date of payment.
SECTION 5.10 Form of Series 2009 Bonds. The text of the Series 2009 Bonds, the form
of assignment for such Series 2009 Bonds and the authentication certificate to be endorsed
thereon shall be substantially in the following form, with such omissions, insertions and
variations as may be necessary or desirable and authorized by this Resolution or as may be
approved and made by the officers of the City executing the same, such execution to be
conclusive evidence of such approval, including, without limitation, such changes as may be
required for the issuance of uncertificated public obligations:
[Remainder of Page Intentionally Left Blank]
•
City of Miami Page 15 of 43 File Id: 09-01150b (Version 2) Printed On: 6/3012010
[Form of Series 2009 Bond]
No. R- $
UNITED STATES OF AMERICA
STA i'h OF FLORIDA
COUNTY OF MIAMI-DADE
CITY OF MIAMI
[TAXABLE/TAX-EXEMPT]
SPECIAL OBLIGATION PARKING REVENUE BONDS, SERIES 2009[A][B]
Interest Rate
REGISTERED OWNER:
PRINCIPAL AMOUNT:
(MARLINS STADIUM PROJECT)
Maturity Date
Dated Date CUSIP
, 2009
DOLLARS
The City of Miami, Florida (hereinafter called the "City"), for value received, hereby
promises to pay to the Registered Owner identified above, or to registered assigns or legal
representatives, to the extent and from the sources hereinafter mentioned, on the Maturity Date
identified above (or earlier as hereinafter provided), the Principal Amount identified above,
upon presentation and surrender hereof at the designated office of , as the
Paying Agent for the Bonds, or any successor Paying Agent appointed by the City pursuant to
the Resolution hereinafter referred to, and to pay, to the extent and from the sources herein
described, interest on the principal sum from the date hereof, or from the .most recent Interest
Payment Date to which interest has been paid, at the Interest Rate per annum identified above,
until payment of the principal sum, or until .provision for the payment thereof has been duly
provided for, such interest being payable on the first day of and the first day of
of each year, commencing on . Interest will be paid by check or draft
mailed to the registered owner hereof at his address as it appears on the registration books of
the City maintained by , as Bond Registrar, at the close of business on the fifteenth
(15th) day (whether or not a business day) of the month next preceding the Interest Payment
Date (the "Record Date"), irrespective of any transfer or exchange of such Bond subsequent to
each Record Date and prior to such Interest Payment Date, unless the City shall be in default in
payment- of interest due on such Interest Payment Date.,, In the, event of azny..such.default,.,such
defaulted interest shall he _payable to the person in whose flame such Bonnd is registered at the
close of business Hoii a special record date for the payment of such defaulted interest as
established by notice by deposit in the U.S. mails, postage prepaid, by the Bond Registrar to the
City of Miami
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registered owners of Bonds not less than fifteen (15) days preceding such special record date.
Such notice shall be mailed to the persons in whose names the Bonds are registered at the close
of business on the fifth (5th) day (whether or not a Business Day) preceding the date of mailing.
This Bond is a part of a duly authorized issue of bonds of the City designated as its
[Taxable/Tax-Exempt] Special Obligation Parking Revenue Bonds, Series 2009[A][B] (Marlins
Stadium Project) (the "Series 2009 Bonds") in the aggregate principal amount of $
issued pursuant to the Act (defined below) in order to provide funds to pay for the construction
of the Project, to fund a Reserve Fund, and to pay certain costs of issuance. The Series 2009
Bonds will be issued in authorized denominations of $5,000 and integral multiples of $5,000 in
excess thereof.
This Bond is issued under the authority of and in full compliance with the Constitution
and the Laws of the State, including particularly Chapter 166, Florida Statutes, as amended and
Part VII of Chapter 159, Florida Statutes, as amended, the Charter of the City and other
applicable provisions of law (collectively, the "Act"), Resolution No. R-09- , duly adopted
by the Commission of the City on (the "Resolution").
This Bond is subject to all the terms and conditions of the Resolution, and capitalized
terms not otherwise defined herein shall have the same meanings ascribed to them in the
Resolution.
This Bond is secured by a lien on and pledge of the (i) Pledged Revenues, (ii) all monies,
including Non -Ad Valorem Revenues deposited into the Funds and Accounts, and (iii) the
earning on investments in the Funds and Accounts created under the Resolution (with the
exception of the Rebate Fund) (collectively, the "Pledged Funds") and is payable .solely from
such Pledged Funds ,all in the manner provided in the Resolution. The City is not obligated to
pay this Bond or the interest hereon except as provided in the Resolution, and the full faith and
credit of the City are not pledged for the payment of this Bond and this Bond does not
constitute an indebtedness of the City within the meaning of any constitutional, statutory or
charter provision or limitation; and it is expressly agreed by the Holder of this Bond that such
Holder shall never have the right to require or compel the exercise of the ad valorem taxing
power of the City, the State of Florida or any political subdivision thereof or taxation in any
form of any real or personal property therein, for the payment of the principal of and interest on
this Bond or the making of any other payments provided for in the Resolution.
If the Pledged Revenues on deposit in the Revenue Fund are not sufficient to p ay
principal and interest and other payments required by the Resolution when due, the City
covenanted and agreed to the extent permitted by and in accordance with applicable law and
budgetary processes, to prepare, approve and appropriate in its Annual Budget for each Fiscal
Year, by amendment if necessary, and to deposit to the. credit of the Revenue Fund, Non -Ad
--.-Valorem Revenues of the City lawfully available in an amount which is equal to the .deficiency.
'cif the Annual •Debt Service. Requirement with respect to a:ll :Bonds outstanding .hereunder for
the applicable Fiscal Year, plusan amount sufficient to satisfy the other payment obligations of
City of Miami
Page 17 of 43 File Id: 09-01150b (Version 2) Printed On: 6/30/2010
the City as provided in the Resolution for the applicable Fiscal Year. Such covenant and
agreement on the part of the City to budget and appropriate sufficient amounts of legally
available Non -Ad Valorem Revenues shall be cumulative; and shall continue until such legally
available Non -Ad Valorem Revenues in amounts sufficient to make all required payments
hereunder as and when due, including any delinquent payments, shall have been budgeted,
appropriated and actually paid into the appropriate Funds and Accounts, hereunder; provided,
however, that such covenant shall not constitute a lien, either legal or equitable, on any of the
City's legally available Non -Ad Valorem Revenues or other revenues, nor shall it preclude the
City from pledging in the future any of its legally available Non -Ad Valorem Revenues or other
revenues to other obligations, nor shall it give the Bondholders a prior claim on the legally
available Non -Ad Valorem Revenues. Anything herein to the contrary notwithstanding, all
obligations of the City hereunder shall be secured only by the legally available Non -Ad
Valorem Revenues actually budgeted and appropriated and deposited into the Funds and
Accounts created pursuant to the Resolution, as provided for therein. The City may not expend
moneys not appropriated or in excess of its current budgeted revenues. The obligation of the
City to budget, appropriate and make payments hereunder from its legally available Non -Ad
Valorem Revenues is subject to the availability of legally available Non -Ad Valorem Revenues
after satisfying funding requirements for obligations having an express lien on or pledge of
such revenues and after satisfying funding requirements for essential governmental services of
the City. However, the covenant to budget and appropriate in its general annual budget for the
purposes and in the manner stated herein shall have the effect of making available in the
manner described herein Non -Ad Valorem Revenues and placing on the City a positive duty to
budget and appropriate, by amendment, if necessary, amounts sufficient to meet its obligations
hereunder; subject, however, in all respects to the restrictions of Section 166.241, Florida
Statutes, which provides, in part, that the governing body of each municipality make
appropriations for each Fiscal Year which, in any one year, shall not exceed the amount to be
received from taxation or other revenue sources; and subject further, to the payment of services
and programs which are for essential public purposes affecting the health, welfare and safety of
the inhabitants of the City or which are legally mandated by applicable law. Notwithstanding
the foregoing covenant of the City, the City does not covenant to maintain any services or
programs now provided or maintained by the City which generate Non -Ad Valorem Revenues.
It is further agreed between the City and the Holder of this Bond that this Bond and the
obligation evidenced thereby shall not constitute alien upon property of or in the City, but shall
constitute a lien only on the Pledged Funds, all in the mariner provided in the Resolution.
Reference is hereby made to the Resolution for the provisions, among others, relating to
the tern, lien and security of the Series 2009 Bonds, the custody and application of the proceeds
of the Series 2009 Bonds, continuing disclosure obligations of the City, the rights and remedies
of the Bondholder, the extent of and limitations on the City's rights, duties and obligations and
:-the provisions permitting the issuance of additional parity indebtedness, to all of which
provisions the Boindholder-hereoffor hinmself and-lus successors n `interest assents by
acceptance of this Bond.
Clty of Miami
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Neither the members of the governing body of the City nor any person executing the
Series 2009 Boi-ids.shall be liable personally on the Series 2009 Bonds by reason of their issuance.
[INSERT THE FOLLOWING REDEMPTION PROVISIONS
ONLY IF BONDS ARE MADE SUBJECT TO REDEMPTION]
(a) Optional Redemption of Bonds. The Series 2009 Bonds are subject to optional
redemption and payment at any time, at the option of the City, as a whole or in part at a
redemption price equal to 100% of the principal amount thereof with accrued interest to the
redemption date. The City may select amounts and. maturities or portions of maturities of
Series 2009 Bonds for optional redemption at the City's sole discretion, except that any
redemption of Term Bonds will reduce pro rata any remaining sinking fund redemption
amounts of the Term Bonds remaining outstanding.
(b) Mandatory Sinking Fund Redemption. The Series 2009 Bonds maturing on
shall be subject to mandatory sinking fund redemption by the City on each July ist of
the years specified below, in the amounts of the Amortization Requirement set forth below at a
redemption price of 100% of the principal.amount thereof.
Year
"Maturity
Amortization
Requirement
Year
Amortization
Requirement
However, the principal amount of. the. Series 2009 Bonds required to be redeemed on
each such sinking fund redemption date shall be reduced by the principal amount of the Series
2009 Bonds specified by the City at least 45 days prior to the redemption date that have been
either (i) purchased by or on behalf of the City and delivered to the Bond Registrar for
cancellation, or (ii) redeemed other than through the operation of the provisions of this
paragraph (b), and that have not been previously made the basis for a reduction of the principal
amount of the Series 2009 Bonds to be redeemed on a sinking fund redemption date.
Notice of call for redemption is to be given by mailing a copy of the redemption notice
by registered or certified mail at least thirty (30) days prior to the date fixed for redemption to
the registered owner of each Bond to be redeemed at the address shown on the registration
books maintained by the Bond Registrar, or any successor Bond Registrar appointed by the City
pursuant to the Resolution. Failure to give such notice by mailing to any Bondholder, or any
defect therein; shall not affect the validity of the proceedings for the redemption of any Bond or
portion thereof._withrespect to which no such failure or defect has occurred: All such Bonds
:called: for iredemption and .for the retirement of which -funds are duly provided- will -cease to
bear interest on -such redemption date. So long as this Bond is held under a book entry system
City of Miami Page 19 of 43 File Id: 09-01150b (Version 2) Printed On: 6/30/2010
by the Securities Depository, notice of redemption shall be sent only to the Securities Depository
. or its nominee.
In the case of optional redemption only, such notice may be given as a conditional notice
of redemption as provided in the Resolution.
This Bond shall not be valid or become obligatory for any purpose or be entitled to any
security or benefit under the Resolution until the Certificate of Authentication endorsed hereon
shall have been manually signed by the Bond Registrar.,
REFERENCE IS HEREBY MADE TO THE ADDITIONAL PROVISIONS OF THIS BOND
.SET FORTH ON THE REVERSE SIDE HEREOF, WHICH ADDITIONAL PROVISIONS SHALL
FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF FULLY SET FORTH IN THIS PLACE.
This Bond is and has all the qualities and incidents of an investment security under the
Uniform Commercial Code -Investment Securities Law of the State of Florida.
IN WITNESS WHEREOF, the City of Miami, Florida, has issued this Bond and has
caused the same to be signed by its City Manager and attested and countersigned by its City
Clerk, either manually or with their facsimile signatures, and its seal to be affixed hereto or a
facsimile of its seal to be reproduced hereon, all as of the day of , 2009.
CITY OF MIAMI, FLORIDA
(SEAL)
By:
City Manager
A 1'1'ESTED AND COUNTERSIGNED:
By: APPROVED AS TO FORM
AND CORRECTNESS
City Clerk
By:
City Attorney
City of Miami
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[CERTIFICATE OF AUTHENTICATION]
This Bond is one of the. Bonds desig fated in and executed under the provisions of the
within mentioned Resolution.
Date
,as Bond Registrar
By:
Authorized Officer
of Authentication:
[To be printed on the reverse side of Registered Bonds]
City of Miami
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ADDITIONAL PROVISIONS
This Bond may be transferred upon the registration books of the City upon delivery
thereof to the principal office of the Bond Registrar accompanied by a written instrument or
instruments of transfer in form and with guaranty of signature satisfactory to the Bond
Registrar, duly executed by the registered owner of this Bond or by his .attorney -in -fact or legal
representative, containing written instructions as to the details of transfer of this Bond, along
with the social security number or federal employer identification number of such transferee.
In all cases of a transfer of a Series 2009 Bond, the Bond Registrar shall at the earliest practical
time in accordance with the provisions of the Resolution enter the transfer of ownership in the
registration books and shall deliver in the name of the new transferee or transferees a neyv fully
registered Series 2009 Bond or Series 2009 Bonds of the same maturity and of authorized
denomination or denominations, for the same aggregate principal amount and payable from the
same source of funds. The City and the Bond Registrar may charge the owner of such Series
2009 Bond for the registration of every transfer or exchange of a Series 2009 Bond an amount
sufficient to reimburse them for any tax, fee or any other governmental charge required (other
than by the City) to be paid with respect to the registration of such transfer, and may require
that such amounts be paid before any such new Series 2009 Bond shall be delivered.
If the date for payment 'of the principal of, redemption premium, if any, or interest on
this Bond is not a Business Day, then the date for such payment shall be the next succeeding
Business Day, and payment on such day shall have the same force and affect as if made on the
nominal date of payment.
The City has established a book -entry system of registration for the series of Bonds of
which this is one. Except as specifically provided otherwise in the Resolution, an agent will
hold this Bond on behalf of the beneficial owner hereof. By acceptance of a confirmation of
purchase, delivery or transfer, the beneficial owner of this Bond.shall be deemed to have agreed
to such arrangement.
It is hereby certified and recited that this Bond is authorized by and is issued in
conformity with the requirements of the Constitution and statutes of the State of Florida; that all
acts, conditions and things required to exist, to happen, and to be performed precedent to the
issuance of this Bond exist, have happened and have been performed in regular and due form
and time as required by the laws and Constitution of the State of Florida applicable hereto; and
that the issuance of the Bonds of this issue does not violate any constitutional or statutory
limitation or provision.
City of Miami Page 22 of 43 File Id: 09-011'50b (Version 2) Printed On: 6/30/2010
[Form of Abbreviations for Series 2009 Bonds[
The following abbreviations, when used in inscription on the face of the within Bond,
shall be construed as though they were written out in full according to applicable laws or
reeulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
TEN ENT - as tenants by the (Cust)
entireties
JT TEN . - as joint tenants withunder.Uniform Gifts to Minors
right of survivorship Act
and not as tenants in (State)
common
Additional abbreviations may also be used though not in the above list.
(Minor
City of Miami Page 23 of 43 File Id: 09-01150b (Version 2) Printed On: 6/30/2010
assigns
[Form of Assignment for Series 2009 Bonds]
ASSIGNMENT •
FOR VALUE RECEIVED, the undersigned (the "Transferor") hereby sells,
and transfers unto
(the "Transferee")
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF TRANSFEREE
the within Bond and all rights thereunder, and hereby irrevocably constitutes
and appoints
attorney to registrar the transfer of the within Bond on the books kept for registration and
registration of the transfer thereof, with full power of substitution in the premises.
Dated:
Signature Guaranteed:
NOTICE: Signature(s) must be guaranteed
by a member firm of the New York Stock
Exchange or a member firm of any other
recognized national securities exchange or a
commercial bank or a trust company.
NOTICE: No transfer will be registered and
no new Bond will be issued in the name of
the Transferee, unless the signature(s) to
this assignment correspond(s) with the
name as it appears upon the face of the
within Bond in every particular, without
alteration or enlargement or any change
whatever and the Social Security or Federal
Employer Identification Number of the
Transferee is supplied.
[End of Form of Series 2009 Bond]
City of Miami
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SECTION 5.11 Application of Series 2009 Bond Proceeds. The proceeds received from
the sale of the Series 2009 Bonds shall be applied by the City, simultaneously with delivery of
the Series 2009 Bonds as provided in a certificate of the City Manager delivered at closing. •
A portion of the proceeds of the Series 2009 Bonds in an amount required to assure
payment in full of the cost of the Project shall be deposited into the Construction Fund which is
hereby created and established. There shall be established two subaccounts within the
Construction Fund to be known as the Series 2009A Construction Account and the Series 2009B
Construction Account. Proceeds of the Series 2009A Bonds shall be deposited into the Series
2009A Construction Account and proceeds of the Series 2009B Bonds shall be deposited into the
Series 2009B Construction Account. Withdrawals from the Construction Fund shall be made
only for costs of the Project, including any amounts to be reimbursed to the City.
The City's share of any liquidated damages or other moneys paid by defaulting
contractors or their sureties, and all proceeds of insurance compensating for damages to the
Project during the period of construction, shall be deposited in the Construction Fund to assure
completion of the Project.
When the construction of the Project has been completed and all construction costs have
been paid in full, all funds remaining in the Construction Fund shall be deposited into the
Sinking Fund hereinafter established, and the Construction Fund shall be closed.
SECTION 5.12 Temporary Bonds. Pending the preparation of definitive Series 2009
Bonds, the City may execute and deliver temporary Series 2009 Bonds. Temporary Series 2009
Bonds shall be issuable as registered Series 2009 Bonds without coupons, of any authorized
denomination, and substantially in the form of the definitive Series 2009 Bonds but with such
omissions, insertions, and variations as may be appropriate for temporary Series 2009 Bonds, all
as may be determined by the City. Temporary Series 2009 Bonds may contain such reference to
any provisions of this Resolution as may be appropriate. Every temporary Series 2009 Bond
shall .be executed and authenticated upon the same conditions and in substantially the same
manner, and with like effect, as the definitive Series 2009 Bonds. As promptly as practicable the
City shall execute and shall furnish definitive Series 2009 Bonds and hereupon temporary Series
2009 Bonds may be surrendered in exchange for definitive Series 2009 Bonds without charge at
the principal office of the Bond Registrar, and the Bond Registrar shall authenticate and deliver
in exchange, for such temporary Series 2009 Bonds a like aggregate principal amount of
definitive Series 2009 Bonds of authorized denominations. Until .so exchanged, the temporary
Series 2009 Bonds shall be entitled to the same benefits under this Resolution as definitive Series
2009 Bonds.
SECTION 5:13 Delegated Awards; Authorization ' an 'Approval
g royal of `BondPurchase-'
Agreement. Subject to 'full satisfaction of the conditions set forth in this Section,' the City
• Commissioin of the City hereby authorizes a delegated negotiated sale of the Series 2009 Bonds
City of Miami Page 25 of 43 File Id: 09-01150b (Version 2) Printed On: 6/30/2010
to the Underwriters in accordance with the terms of the Bond Purchase Agreement in
accordance with the provisions of this Section (including, without limitation, making the final
determination concerning the structuring and marketing of the Series 2009 Bonds to obtain the
most favorable rating and interest rate on the Series 2009 Bonds), and the execution and
delivery of the Bond Purchase Agreement shall be deemed conclusive evidence of the full and
complete satisfaction of the conditions set forth in this Section.
Notwithstanding the foregoing, prior to execution of the Bond Purchase Agreement all
of the following conditions shall have been satisfied:
1. Receipt by the City Manager of a written offer to purchase the Series 2009 Bonds
by the Underwriters substantially in the. form of the Bond Purchase Agreement, said offer to
provide for, among other things:
(a) the issuance of not exceeding $120,000,000 aggregate principal amount of Series
2009 Bonds;
(b) a purchase price of not less than ninety-nine percent (99%) (inclusive of
underwriters' discount, but not inclusive of original issue discount; the original issue discount
may be such as is necessary to market and sell the Series 2009 Bonds) of the original principal
amount of the each series .of Series 2009 Bonds;
(c) with respect to the Series 2009A Bonds (i) a true interest cost of not more than
6.50% per annum and (ii) the final maturity of the Series 2009A Bonds being no later than July 1,
2040; and
(d) with respect to the Series 2009B Bonds (i) a true interest cost of not more than
8.50% per annum and (ii) the final maturity of the Series 2009B Bonds being no later than July 1,
2040
2. The Series 2009 Bonds shall be subject to such optional and mandatory
redemption provisions as provided in the Bond Purchase Agreement; provided that the
optional redemption premium shall not exceed 102%.
The City Manager, in consultation with the Finance Director, Bond Counsel and the
financial advisor, is authorized to determine such redemption provisions as are most
advantageous to the sale of the Series 2009 Bonds, all as provided in the Bond Purchase
Agreement.
3. Receipt by the City Manager from the Underwriters of a disclosure statement
and: truth -in -bonding information complying with Section 218.385;' -Florida Statutes and -
;substantially in the form attached to the Bond Purchase _Agreemerit i Z:
City of Miami Page 26 of 43 File Id: 09-01150b (Version 2) Printed On: 6130/2010
Upon satisfaction of .the conditions set forth in this Section, the City Commission hereby
authorizes and directs the City Manager to determine the final provisions of the Bond Purchase
Agreement, within the parameters for the Series 2009 Bonds set forth above in this Section 5.13.
The execution and delivery of the Bond Purchase Agreement is hereby authorized and
approved and the City Manager is hereby authorized to execute and the Clerk is hereby
authorized to attest to, seal and deliver the Bond Purchase Agreement in substantially the form
approved at this meeting and attached hereto as Exhibit "A", subject to such changes; insertions
and omissions and such filling in of blanks therein as hereafter may be approved and made by
the City Manager upon the advice of the City's financial advisor, the City Attorney and Bond
Counsel. The execution, attestation and delivery of the Bond Purchase Agreement, as described
herein, shall be conclusive evidence of the City's approval of any such determinations, changes,
insertions, omissions or filling in of blanks.
SECTION 5.14 Authorization and Approval of Negotiated Sale of Series 2009 Bonds.
Based on the findings set forth in Article III hereof and satisfactory compliance with Section 5.13
hereof, the City Commission hereby approves the negotiated sale of the Series 2009 Bonds to the
Underwriters, and the Series 2009 Bonds shall be sold and awarded to the Underwriters, upon
the terms and conditions set forth herein and as set forth in the Bond Purchase Agreement.
SECTION 5.15 Approval of Form of Paying Agent .and Registrar Agreement;
Appointment of Paying Agent and Bond Registrar. The execution and delivery of the Paying
Agent and Registrar Agreement is hereby authorized and approved. The City Commission hereby
authorizes and directs the City Manager to determine the final provisions of the Paying Agent and
Registrar Agreement. The _City Manager is hereby authorized to execute and the Clerk is hereby
authorized to attest to, seal and deliver the Paying Agent and Registrar Agreement in substantially
the form approved at this meeting and attached hereto as Exhibit "B", subject to such changes,
insertions and omissions and such filling in of blanks therein as hereafter may be approved and
made • by the City Manager upon the advice •of the City Attorney and Bond Counsel. The
execution, attestation and delivery of the Paying Agent and Registrar Agreement, as described
herein, shall be conclusive evidence of the City's approval of any such determinations, changes,
insertions, omissions or filling. in of blanks. 1'll Bank, National Association is hereby appointed as
the initial Paying Agent and the initial Bond Registrar for the Series 2009 Bonds.
SECTION 5.16 Preliminary Official Statement; Official Statement. The use of a
Preliminary Official Statement in connection with the marketing of the Series 2009 Bonds is
hereby authorized. The Preliminary Official Statement in substantially the form attached hereto
as Exhibit "C" is hereby approved with such changes, insertions and omissions and such filling
in of blanks therein as may be approved by the City Manager. " The City Manager is hereby
authorized to approve and execute, on behalf of the City, an Official Statement relating to the
Series 2009 Bonds with such changes from the Preliminary Official Statement, within the
=authorizations and limitations contained herein, as the City' Manager in consultation' with the-
, City _Attorney,.Bond Counsel,::and..: the City's disclosure ..:counsel it his. sole:oliscretion,' may.
approve, 'such execution :to .be: conclusive evidence of such approval. The City Manager is
= 'hereby:authorized. to deem the Preliminary Official Statement final for the purposes of Rule
City of Miami Page 27 of 43 File id: 09-01150b (Version 2) Printed On: 6/30/2010
15c2-12 of the Securities and Exchange Commission (the "Rule"), and to execute such
documents as may be necessary therefore. The City Manager or his designee is hereby
authorized to provide for the printing of the Preliminary Official Statement and the Official
Statement by the lowest and most responsive bidder therefor and the payment of the cost of
such printing is hereby authorized to be paid from the proceeds of the Series 2009 Bonds.
SECTION 5.17 Continuing Disclosure. For the benefit of the holders and beneficial
owners from time to time of the. Series 2009 Bonds., the City agrees in accordance with the Rule,
and as the only obligated person with respect to the Series 2009 Bonds under the Rule, to.
provide or cause to be provided such financial information and operating data, financial
statements and notices, in such manner, as may be required for purposes of paragraph (b)(5) of
the Rule. In order -to describe and specify .certain terms of the City's continuing disclosure
agreement, including provisions for enforcement, amendment and termination, the Finance
Director is hereby authorized and directed to sign and deliver, in the name and on behalf of the
City, a Disclosure Dissemination Agent Agreement (the "Continuing Disclosure Agreement")
with Digital Assurance Certification LLC ("DAC"), in substantially the form attached hereto as
Exhibit "D", with such changes, insertions and omissions and such filling -in of blanks therein as
may be approved by the Finance Director and in consultation with the City Attorney, Bond
Counsel and the City's disclosure counsel, the final form of which is to be approved by the City
Attorney. The execution and delivery of the Continuing Disclosure Agreement, for and on
behalf of the City by the Finance Director, shall be deemed conclusive evidence of the City's
approval of the Continuing Disclosure Agreement. Notwithstanding any other provisions of
this Resolution, any failure by the City to comply with any provisions of the Continuing
Disclosure Agreement or this Section 5.18 shall not constitute a default under the Resolution
and the remedies therefor shall be solely as provided in the Continuing Disclosure Agreement.
DAC is hereby appointed dissemination agent under the Continuing Disclosure Agreement.
The Finance Director is further authorized. and directed to establish, or cause to be
established, procedures in order to ensure compliance by the City with the Continuing
Disclosure Agreement, including the timely provision of information and notices. Prior to
making any filing in accordance with such agreement, the Finance Director shall consult with,
as appropriate, the City Attorney, Bond Counsel or the City's disclosure counsel. The Finance
Director, acting in the name and on behalf of the City, shall be entitled to rely upon any legal
advice provided by the City Attorney, Bond Counsel or the City's disclosure counsel in
determining whether a filing should be made.
SECTION 5.18 Qualification for the Securities Depository. Notwithstanding any other
provision hereof, the City, the Bond Registrar and the Paying Agent are hereby authorized to
take .such actions as may be necessary to qualify the Series 2009 Bonds for deposit with the
Securities Depository in accordance with the Blanket Issuer Letter of Representations dated
October 4,.1995 from the City to Securities Depository (the "Securities Depository Agreement")
^and.the '_taking -of_ allactions required by such_Securities Depository Agreement,'wire""transfers '`
:ofinterestand principal payments with respect to _the Series 2009.Boitds, of electronic
bookentry data received from the Securities Depository in place of actual delivery of Series
City of Miami Page 28 of 43 Fife Id: 09-01150b (Version 2) Printed On: 6/30/2010
2009 Bonds .and provisions of notice with respect to Series 2009 Bonds registered by Securities
. Depository (or any of itsdesignees identified .to the City, the Bond Registrar or the Paying
Agent) by overnight delivery, courier service, telegram, telecopy or other similar means of
communication.
SECTION 5.19 Insurance Policy, Reserve Product and Credit Facility. In order to
produce the lowest true interest cost possible for the Series 2009 Bonds or any portion thereof,
the City Manager is hereby authorized to negotiate an Insurance Policy, a Reserve Product and
a Credit Facility with respect to any or all of the Series 2009 Bonds, if, after consultation with the
Finance Director and the Financial Advisor, the City Manager determines that obtaining such
an Insurance Policy, a Reserve Product or a Credit Facility is in the best interests of the City. The
City is hereby authorized to provide for the payment of the premium of the Insurance Policy,
any costs of the Reserve Product and any costs of a Credit Facility from the proceeds of the
issuance of the Series 2009 Bonds and to enter into such agreements as may be necessary to
secure such Insurance Policy, a Reserve Product or Credit Facility, with the City Manager's
execution of any such agreement(s) to be conclusive evidence of the City's approval thereof;
provided, however, that the City Manager may consult with the Finance Director, the City
Attorney and Bond Counsel in connection with any such agreement(s).
ARTICLE VI
SOURCE OF PAYMENT OF SERIES 2009 BONDS;
SPECIAL OBLIGATIONS OF THE CITY
SECTION 6.01 Series 2009 Bonds Not to be General Obligation or Indebtedness of the
City. The Series 2009 Bonds shall not bedeemed to constitute general obligations or a pledge of
the faith and credit of the City, the State or any political subdivision thereof within the meaning
of any constitutional, legislative or charter provision or limitation, but shall be payable solely
from and secured by a lien upon and a pledge of the Pledged Funds, in the manner and to the•
extent herein provided. No Bondholder shall ever have the right, directly or indirectly, to
require or compel the exercise of the ad valorem taxing power of the City, the State or any other
political subdivision of the State or taxation in any form on any real or personal property to pay
the Series 2009 Bonds or the interest thereon, nor shall any Bondholder be entitled to payment
of such principal of, redemption premium, if any and interest from any other funds of the City
other than the Pledged Funds, all in the mariner and to the extent herein provided. The Series
2009 Bonds and the indebtedness evidenced thereby shall not constitute a lien upon any real or
personal property of the City, or any part thereof, or any other tangible personal property of or
in the City, but shall constitute a lien only on the Pledged Funds, all in the manner and to the
extent provided herein.
SECTION 6.02 Pledge, The payment of the principal of and interest on the...Series 2009
:Bonds shall -be secured forthwith -equally and ratably by an irrevocable lien on the Pledged
City of Miami
Page 29 of 43 File Id: 09-01150b (Version 2) Printed On: 613012010
Funds. The City does hereby irrevocably pledge such Pledged Funds to the payment of the
principal of, redemption premium, if any, and intereston the Series 2009 Bonds and for all other
payments as provided herein, in the order of priorities set forth herein.
SECTION 6.03 Covenant to Budget and Appropriate. If the Pledged Revenues on
deposit in the Revenue Fund are not sufficient to pay principal and interest on the fifth (5th) day
prior to the due date of such payments and other payments required by this Resolution when
due, the City hereby covenants and agrees to the extent permitted by and in accordance with
applicable law and budgetary processes, to prepare, approve and appropriate in its Annual
Budget for each Fiscal Year, by amendment if necessary, and to deposit to the credit of the
Revenue Fund, Non -Ad Valorem Revenues of the City lawfully available in an amount which is
equal to the deficiency of the Annual Debt Service Requirement with respect to all Bonds
outstanding hereunder for the applicable Fiscal Year, plus an amount sufficient to satisfy the
other payment obligations of the City hereunder for the applicable Fiscal Year. Such covenant
and agreement on the part of the City to budget and appropriate sufficient amounts of legally
available Non -Ad Valorem Revenues shall be cumulative, and shall continue until such legally
available Non -Ad Valorem Revenues M amounts sufficient to make all required payments
hereunder as and when due, including any delinquent payments, shall have been budgeted,
appropriated and actually paid into the appropriate Funds and Accounts, hereunder; provided,
however, that such covenant shall not constitute a lien, either legal or equitable, on any of the
City's legally available Non -Ad Valorem Revenues or other revenues, nor shall it preclude the
City from pledging in the future any of its legally available Non -Ad Valorem Revenues or other
revenues to other obligations, nor shall it give the Bondholders a prior claim on the legally
available Non -Ad Valorem Revenues. Anything herein to the contrary notwithstanding, all
obligations of the City hereunder shall be secured only by the legally available Non -Ad
Valorem Revenues actually budgeted and appropriated and deposited into the Funds and
Accounts created hereunder, as provided for herein. The City may not expend moneys not
appropriated or in excess of its current budgeted revenues. The obligation of the City to
budget, appropriate and make payments hereunder from its legally available Non -Ad Valorem
Revenues is subject to the availability of legally available Non Ad Valorem Revenues after
satisfying funding requirements for obligations having an express lien on or pledge of such
revenues and after satisfying funding requirements for essential goverrimental services of the
City. However, the covenant to budget and appropriate in its general annual budget for the
purposes and in the manner . stated herein shall have the effect of making available in the
manner described herein Non -Ad Valorem Revenues and placing on the City a positive duty to
budget and appropriate, by amendment, if necessary, amounts sufficient to meet its obligations
hereunder; subject, however, in all respects to the restrictions of Section 166.241, Florida
Statutes, which provides, .in part, that the governing body of each municipality make
appropriations for each Fiscal Year which, in any one year, shall not.exceed the- amount to be
received from taxation or other revenue sources; and .sublect further, to the payment of,.seryices ,,..
and prograi is'whieh'are for essential public purposes affecting the -health welfare and safety of
the inhabitants of the City or which are legally mandated by applicable law. Notwithstanding
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the foregoing covenant of the City, the City does not covenant to maintain any services or
programs now provided ormaintained by the City which generate Nori-Ad Valorem Revenues.
ARTICLE VII
CREATION AND USE OF FUNDS AND ACCOUNTS;
DISPOSITION OF REVENUES
SECTION 7.01 Creation of Revenue Fund, Sinking Fund and Accounts and the
Reserve Fund. There is hereby established the "Revenue Fund", the "Sinking Fund" and the
"Reserve Fund." There are established within the Sinking Fund three separate Accounts therein
designated as the "Interest Account," the "Principal Account" and the "Bond Amortization
Account".
The Revenue Fund, the Sinking Fund and the Reserve Fund established hereunder and
all Accounts therein shall constitute trust funds for the purpo.se herein provided, shall be
.delivered to and held by the Finance Director (or an Authorized Depository designated by the
Finance Director), in each case who shall act as trustee of such funds for the purposes hereof,
and shall at all times be kept separate and distinct from all other funds of the City and used
only as herein provided. The designation and establishment of the various Funds and Accounts
in and by this Resolution shall not be construed to require the establishment of any completely
independent, self -balancing funds as such term is corrunonly.defin.ed and used in govenunental
accounting, but rather is intended solely to constitute an earmarking of certain revenues of the
City for certain purposes and to establish certain priorities for application of such revenues and
assets as herein provided.
Moneys held in the Fund .and Accounts (except the Rebate Fund), are Pledged Funds
and shall be subject to a lien and charge in favor of the holders and registered -owners of the
Series 2009 Bonds and any Additional Parity Obligations as herein provided.
SECTION 7.02 Disposition of Revenues. The City covenants and agrees that it will pay
or cause to be paid into the Revenue Fund, as promptly as practicable after receipt thereof, all of
the Pledged Revenues and the Non -Ad Valorem Revenues as required by Section 6.03 hereof.
Monies in the Revenue Fund shall be transferred and applied as follows:
(1) To the full extent necessary, for deposit into the Interest Account in the
Sinking Fund, on the fifth (5th) day preceding each Interest Payment Date, such sums as
shall be sufficient to pay the interest becoming due on the Bonds on each such Interest
Payment Date.; provided, however, that such deposits for interest shall not be required
to be 'made into the -Interest Account to the extent -that Money on deposit therein" is
sufficient for such purpose.. ..,
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The City shall, on or before each Interest Payment Date, transfer to the Paying
. Agent moneys in.an.amount equal to the interest.due on such Interest Payment Date or
shall, prior to such Interest Payment Date, advise the Paying Agent of the amount of any
deficiency in the amount so to be transferred.
(2) (a) To the full extent necessary, for deposit in the Principal Account in the
Sinking Fund, on the fifth (5th) day preceding each principal maturity date, the principal
amount of Serial Bonds which will mature and become due on such maturity dates;
provided, however, that such deposits for principal shall not be required to be made into
the Principal Account to the extent that money on deposit therein is sufficient for such
purpose.
The City shall, on or before each principal payment date, transfer to the Paying
Agent moneys in an amount equal to the principal due on such principal payment date.
(b) To the full extent necessary, for deposit into the Bond Amortization
Account in the Sinking Fund, on the fifth (5th) day preceding each redemption or
maturity date, the Amortization Requirements as may be necessary for the payment of
the Term Bonds payable from the Bond Amortization Account on such .redemption or
maturity dates.
The moneys in the Bond Amortization Account shall be used solely for the
purchase or redemption of the Term Bonds payable therefrom. The City may at any
time purchase any of said Term Bonds at prices not greater than the principal amount
thereof and credit the principal amount purchased against the Amortization Installment
due. The City shall be mandatorily obligated to use any moneys in the Bond
Amortization Account not applied to purchase Term Bonds for the redemption prior to
maturity of such Term Bonds in such manner and at such times as the same are subject
to mandatory redemption. If, by the application of moneys in the Bond Amortization
Account, the City shall purchase or call for redemption in any year Term Bonds in excess
of the Amortization Requirements for such year, such excess of Term Bonds so
purchased or redeemed shall be credited in such mariner and at such times as the
Finance Director shall determine over the remaining payment dates.
The City shall, on each redemption or maturity date, transfer to the Paying Agent
moneys in an amount equal to the payments due on the Term Bonds on such
redemption or maturity date.
(3) To the full extent necessary, for deposit in the Reserve Fund on or before
the next succeeding Interest Payment Date following a draw on the Reserve Fund, an
amount which, together with funds on deposit :therein, will -be sufficient to make the
funds on deposit therein, except as otherwise hereinafter provided,. equal to the Reserve ..
Requirement for the Bonds.
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Moneys in the Reserve Fund shall be used only for the purpose of payments of
Amortization Installments, principal. of, or .interest on the . Bonds when other moneys
allocated to the Sinking Fund are insufficient therefore, and for no other purpose.
(4) In lieu of or in substitution for cash or securities on deposit in the Reserve
Fund, the City may fund the Reserve Requirement, in whole or in part, with a Reserve
Product issued by a Reserve Product Provider in. an amount equal to the difference
between the Reserve Requirement and the sums then on deposit in the Reserve Fund or
to remain on deposit in the Reserve Fund. Such Reserve Product must provide for
payment on any interest or principal payment date (provided adequate notice is given)
on which a deficiency exists (or is expected to exist) in moneys held hereunder for a
payment with respect to the Series 2009 Bonds which cannot be cured by moneys in any
other Fluid or Account held pursuant to this Resolution and available for such purpose,
and which shall name the Paying Agent or an Authorized Depository who has agreed to
serve as trustee for the benefit of the .Bondholders as the beneficiary thereof. In no event
shall the use of such Reserve Product be permitted if it would cause an impairment in
any existing rating on the Series 2009 Bonds. If a disbursement is made from a Reserve
Product, the City shall be obligated to reinstate the maximum limits of such Reserve
Product on or before the next succeeding Interest Payment Date following :such
disbursement or to replace such Reserve Product by depositing into the Reserve Fund
from the first Pledged Revenues available for deposit pursuant to clause (3) above,
moneys in the maximum amount originally payable under such Reserve Product, plus
the amount necessary to reimburse the .Reserve Product Provider for previous
disbursements made pursuant to such Reserve Product, or a combination of such
alternatives, and for purposes of clause (3) above, amounts necessary to satisfy such
reimbursement obligation and other obligations of the City to a Reserve Product
Provider (the "Policy Costs") shall be deemed required deposits into the Reserve Fund,
but shall be used by the City to satisfy its obligations to the Reserve Product Provider.
If funds on deposit in the Reserve Fund exceed the Reserve Requirement with
respect to the Series 2009 Bonds and .any Additional Parity Obligations, such excess shall
be transferred to the City annually to be used for any lawful purpose, provided that
such excess shall be first applied to cure any deficiencies in the Sinking Fund, including
the Accounts therein, and then shall be released to the City to be used for any lawful
purpose.
(5) The City shall not be required to make any further .payments into the
Sinking Fund, including the Accounts therein, and the Reserve Fund when the
aggregate amount of funds in the Sinking Fund, including the Accounts therein, and the
Reserve Fund are at least equal to the aggregate` principal amount of the Bonds then
outstanding plus accrued interest thereon, or if all'of the=:Bonds then outstaridmg'have
.
- been otherwise defeased pursuant to Section 12.02 hereof.
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(6) The balance of any monies remaining in the Revenue Fund after payment
of all required payments in paragraphs (1)-(4) above may be used for any lawful
purpose of the City.
ARTICLE VIII
DEPOSITORIES OF FUNDS, SECURITY FOR
DEPOSITS AND INVESTMENT OF MONEYS
SECTION 8.01 Deposits Constitute Trust Funds. All Funds or other property which at
any time may be owned or heldin the possession of or. deposited with the City for application
in accordance with the terms .and provisions of this Resolution shall be held in trust and applied
only in accordance with the provisions of this Resolution, and shall not be subject to lien or
attachment by any creditor of the City.
All Funds or other property which at any time may be owned or held in the possession
of or deposited with the City pursuant to this Resolution, and any i nvesfinent income thereon,
shall be continuously secured, for the benefit of the City and the Bondholders in the order and
manner and for the purposes provided in this Resolution either (a) by depositing with an
Authorized Depository, as custodian, collateral security consisting of obligations of, or
obligations the principal of and interest on which are unconditionally guaranteed by, the United
States of America having a market value (exclusive of accrued interest) not less than the amount,
of such deposit, or (b) in such other manner as permitted hereunder as may then be required or
permitted by applicable State and federal law and regulations regarding the security for, or
granting a preference in the case of, the deposit of trust funds, including without limitation, the
provisions of.Chapter 280, Florida Statutes, as from time to time amended.
All moneys deposited with each Authorized Depository shall be credited to the
particular Fund or Account to which such moneys belong.
SECTION.8.02 Investment of Moneys. Moneys held for the credit of the Revenue
Fund, the Sinking Fund and the Reserve Fund may be invested by the City in Permitted
Investments. Such investments or reinvestments shall mature or become available not later
than the respective dates, as estimated by the City, that the moneys held for the credit of said
Funds and Accounts will be needed for the purposes of such Funds or Accounts; provided,
however, that moneys in the Reserve Fund shall be invested only in Permitted Investments with
a remaining maturity of five years or less from the date of purchase or subject to redemption
upon demand of the holder.
Obligations so purchased as an investment of moneys in any such Fund or Account shall
-be deemed at :all times 'to -be a part -of such Fund or Accbuiit,-and sh a 11- at all= tunes' forithe
purposes of_ this: Resolution, be valued annually, at the market value thereof, exclusive of
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accrued interest. Deficiencies in the amount on deposit in any Fund or Account resulting from
a decline in market value shall be restored no later than the succeeding valuation date.
All income and profits derived from the investment of moneys in the Sinking Fund shall
be retained in such Funds and Accounts used for the purposes specified for such respective
Fund and Account. All income and profits derived from the investment of moneys in the
Reserve Fund shall be retained in the Reserve Fund therein until amounts on deposit in such
Reserve Fund shall equal the Reserve Requirement; thereafter such income and profits shall be
released to the City to be used for any lawful purpose.
ARTICLE IX
GENERAL COVENANTS OF THE CITY
SECTION 9.01 Notice of Deposit Shortfall. The City covenants that it will notify the
Paying Agent, of any shortfall or deficiency in the Sinking Fund at least five (5) days before each
principal or Interest Payment Date on which such shortfall is expected to occur.
SECTION 9.02 Annual Audit.
(1) Annual Audit. The City shall require that an annual audit of its accounts and
records with respect to its general fund and the Pledged Funds and the Funds and Accounts
created herein be completed as soon as practicable after the end of each Fiscal Year by an
independent certified public accountant of recognized standing. Such audit shall be conducted
in accordance with generally accepted auditing standards as applied to governmental units.
(2) Availability of Reports. A copy of the comprehensive annual financial report as
certified according to the requirements stated herein shall be available for inspection at the
offices of the City and shall be promptly furnished to the Underwriters of the Series 2009 Bonds
and mailed to any Bondholder requesting the same, upon payment by such Bondholder, of the
cost of reproduction and mailing.
SECTION 9.03 Receipt of Pledged Revenues. The City covenants, that as long as the
Series 2009 Bonds are outstanding, it will not in-ipair or adversely affect the right of the City to
receive the Pledged Revenues. The City will proceed diligently to perform legally and
effectively all steps required on its part to collect and receive the Pledged Revenues.
SECTION 9.04 Operation and Maintenance of the Project. The City covenants to
establish and enforce reasonable rules and regulations governing the operation and use of the
Project, operate the Project. in an efficient and economical manner,_ maintain the. properties
constituting the Project in goodrepair and in sound operating condition for so long as the same
:are:necessary to. the operation of the Project upon a revenue -pro d ciilg •liasis;-ancl-con-iply vvitli
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i
all valid acts, rules, regulations, order and directions of any legislative, executive,
administrative or judicial body that are applicable to the Project.
For so long as the Bonds are outstanding, the City will not construct, maintain or operate
or cause to be constructed, maintained or operated, any off-street parking facilities that would
impair the revenue -producing capacity of the Project unless prior to such construction,
operation or maintenance (a) the construction, maintenance or operation of such facilities are.
authorized by the City and incorporated into the Project or (b) the City provides a statement of
a parking consultant to the effect that based upon such parking consultant's knowledge and
analysis of the financial performance and operations of the Project, nothing has come to its
• attention that would lead it to believe that the City would not be able to meet their payment
obligations as a result of such construction, operation and maintenance
SECTION 9.05 Insurance. The City will purchase and maintain insurance covering such
properties belonging to the Project against loss or damage from such causes as are customarily
insured against by enterprises of a similar nature, business interruption insurance,
comprehensive, general liability, insurance and use and occupancy insurance on the Project for
bodily injury and property damage.
SECTION 9.06 Insurance and Condemnation Proceeds. All proceeds of all insurance
required by Section 9.05 hereof and all net proceeds resulting from eminent domain
proceedings shall be delivered to the Paying Agent for deposit in the Construction Fund or
Sinking Fund and shall be applied at the election of the City:
(1) promptly to replace, repair, rebuild or restore the Project to substantially the same
condition as that which existed prior to such taking, damage or destruction, with such
alterations and additions as the City may determine; or
(2) to the redemption of Bonds, provided that Bonds may be redeemed only if (A) the
Project has been restored to substantially the same condition as prior to .such damage or
destruction or taking, or (B) the City has determined that the portion of the Project damaged or
destroyed or taken is no.t necessary to the operation of the Project.
SECTION 9.07 .Disposition of the Project. The City will have the right to sell or dispose
of any moveable property or fixtures acquired by the City in connection with the Project, or any
materials used in connection therewith if the Finance Director determines that such articles are
no longer useful in connection with the construction or maintenance of the Project or the
operation of the Project and that such sale or disposition will not impair the operating efficiency
of the Project.
'iThe'City -has theI Might to ,demolish or remove anyreal property -arid •structures now or
•hereafter existing -as part of the'Project•provided the City, by resolution, determines that. such
• removal or demolition does not impair the operating efficiency of the. Project.... .
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The City will deposit the proceeds resulting from any abandonment, sale or disposition
of properties constituting the Project to the Construction Fund or to the Revenue Fund, as the
City may direct.
SECTION 9.08 Tax Covenants. (A) The City shall not use or permit the use of any
proceeds of the Series .2009A Bonds or any other funds of the City, directly or indirectly, to
acquire any securities or obligations, and shall not use or permit the use of any amounts
received by the City with respect to the Series 2009A Bonds in any marrer, and shall not take or
permit to be taken any other action or actions, which would cause any Series 2009A Bonds to be
"private activity bonds" within the meaning of Section 141 or an "arbitrage bond" within the
meaning of Section 148, or "federally guaranteed" within the meaning of Section 149(b), of the
Internal Revenue Code of 1986, as amended, or otherwise cause interest on the Series 2009A
Bonds to become subject to federal income taxation.
(B) The City shall at all times do and perform all acts and things permitted by law
and this Resolution which are necessary or desirable in order to assure that interest paid on the
Series 2009A Bonds will be excluded from gross income for purposes of federal income taxes
and shall take no action that would result in such interest not being so excluded.
(C) The City shall pay or cause to be paid to the United States Goverrunent any
amounts required by Section 148(f) of the Code and the regulations thereunder (the
"Regulations"). In order to ensure compliance with the rebate provisions of Section 148(f) of the
Code with respect to any Series 2009A Bonds for which the City intends on the date of issuance
thereof to be excluded from gross income for purposes of federal income taxation, the City
hereby creates and establishes the "City of Miami Special Obligation Parking Revenue Bonds
Rebate Fund" (hereinafter the "Rebate Fund") to be held by the City. The Rebate Fund need not
be maintained so long as the City timely satisfies its obligation to pay any rebatable earnings to
the United States Treasury; however, the City may, as an administrative convenience, maintain
and deposit funds in the Rebate Fund from time to time. Any moneys held in the Rebate Fund
shall not be considered Pledged Funds and shall not be pledged in any manner for the benefit of
the holders of the Series 2009A Bonds. Moneys in the Rebate Fund (including earnings and
deposits therein) shall be held for future payment to the United States Government as required
by the Regulations and as set forth in instructions of Bond Counsel delivered to the City upon
issuance of such Series 2009A Bonds.
ARTICLE X
ISSUANCE OF ADDITIONAL INDEBTEDNESS
SECTION 10.01-Issuance of Additional Indebtedness. The City will not issue any
obligations ,(other than the Series 2009 Bonds authorized,by,: Section_5.01 hereof) secured by -or
• payable:from the Pledged.. Funds,. or any portion thereof, or voluntarily create or cause to- be
created any -debt; -lien, pledge, assignment, encumbrance or other charge, in each case, having
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priority to or being on a parity with the lien securing the Series 2009 Bonds issued pursuant to
this Resolution upon the Pledged Funds or any portion thereof.
Notwithstanding the foregoing, the City may at any time or from time to time issue
evidences of indebtedness that are payable in whole or in part out of the Pledged Funds and
which may be secured by a pledge of the Pledged Funds on a parity with the Series 2009 Bonds
solely for the purpose of financing the costs necessary to complete the Project. Such Additional
Parity Obligations may not exceed 10°1° of the initial principal amount of the Series 2009 Bonds.
Notwithstanding the foregoing, the City may at any tune or from time to time issue
evidences of indebtedness that are payable.in whole or in part out of the Pledged Funds and
which -may be secured by _a pledged of the Pledged Funds on a parity with the Series 2009
Bonds if such Additional Parity Obligations to be issued are refunding bonds, that is, delivered
in lieu of, or in substitution for, or to provide for the payment of one or more series of Bonds or
portions thereof, originally issued under this Resolution if the City shall cause to be delivered a
certificate of the Finance Director setting forth the Total Debt Service Requirement (i) for the
Bonds then outstanding and (ii) for all Bonds to be inunediately outstanding thereafter and
stating that the Total Debt Service Requirement pursuant to (ii) above is not greater than that set
forth pursuant to (i) above.
ARTICLE XI
EVENTS OF DEFAULT; REMEDIES
SECTION 11.01 Events of Default. Each of the following events is hereby declared an
"event of default":
(a) payment of principal of any Series 2009 Bond is not be made when the same shall
become due and payable, either at maturity or on required payment dates by proceedings for
redemption or otherwise; or
(b) payments :of any installment of interest shall not be made when the same shall
become due and payable; or
(c) the City shall fail to make any deposits required to be made hereunder or shall
otherwise fail to comply with any of the covenants and obligations of the City hereunder and
such failure shall continue unremedied for a period of thirty (30) days after such failure to
deposit or other such occurrence.
Notwithstanding the foregoing, with respect to the events described in clause (c) the
. City .shall not be deemed in default hereunder if such default can be cured within a reasonable
period of:time andcif the City in. good faith institutes appropriate curative -action and: diligently
pursues such action until the default has been corrected.
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SECTION 11.02, Enforcement of Remedies. Upon the happening and continuance of
any event of default specified in Section 11.01 of this Article, then and in every such case the
owners of not less than twenty-five percent (25%) of the aggregate principal amount of the
Series 2009 Bonds outstanding may appoint any State bank, national bank, trust company or
national banking association qualified to transact business in Florida to serve as trustee for the
benefit of the holders of all Series 2009 Bonds then outstanding (the "Default Trustee"). Notice
of such appointment, together with evidence of the requisite signatures of the holders of
twenty-five percent (25%) of the aggregate principal amount of the Series 2009 Bonds
outstanding and the trust instrument under which the Default Trustee shall have agreed to
serve shall be filed with the City and the Default Trustee and notice of such appointment shall
be mailed to the registered holders of the Series 2009 Bonds. No more than one Default Trustee
may be appointed and serving hereunder at any one time; however, the holders of a majority of
the aggregate principal amount .of the Series 2009 Bonds outstanding may remove the Default
Trustee initially appointed and appoint a successor and subsequent successors at any time. If
the default for which the Default Trustee was appointed is cured or waived pursuant ,to this
Article, the appointment of the Default Trustee shall terminate with respect to such default.
After a Default Trustee has been appointed pursuant to the foregoing, the Default
Trustee may proceed, and upon the written request of owners of twenty-five percent (25%) of
the aggregate principal amount of the Series 2009 Bonds outstanding shall proceed, to protect
and enforce the rights of the Bondholders under the laws of the State of .Florida, including the
Act, and under this Resolution, by such suits, actions or special proceedings in equity or at law,
or by proceedings in the office of any board, body or officer having jurisdiction, either for the
specific performance of any covenant or agreement contained herein or in aid of execution of
any power herein granted or for the enforcement of any proper legal or equitable remedy, all as
the Default Trustee, .being advised by counsel, shall deem most effectual to protect and enforce
such rights.
In the enforcement of any remedy against the City under this Resolution the Default
Trustee shall be entitled to sue for, enforce payment of and receive any and all amounts then or
during any City default becoming, and at any time remaining, due from the City for principal,
interest or otherwise under any provisions of this Resolution or of such Series 2009 Bonds and
unpaid, with interest on overdue payments of principal and, to the extent permitted by law, on
interest, at the rate or rates of interest specified in such Series 2009 Bonds, together with any and
all costs and expenses, including reasonable attorneys' fees and including fees on appeal, of
collection and of all proceedings hereunder and under such Series 2009 Bonds, without
prejudice to any other right or remedy of the Default Trustee or of the Bondholders, and to
recover and enforce any judgment or decree against the City, but solely as provided herein and
in such Series 2009 Bonds, for any portion of such amounts remaining unpaid and interest, costs
and expenses as above provided,_ and to collect (but solely from moneys in the Funds and
Accounts,- excluding the Rebate Fund) in any manner provided by law, the moneys adjudged or
decreed to be payable.
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SECTION 11.03 Effect of Discontinuing Proceedings. In case any proceeding taken by
the Default Trustee or any Bondholder on account of any default shall have been discontinued
or abandoned for any reason or shall have been determined adversely to the Default Trustee or
such Bondholder, then and in every such case the City, the Default Trustee and the Bondholders
shall be restored to their former positions and rights hereunder, respectively, and all rights,
remedies and powers of the Default Trustee shall continue as though no such proceeding had
been taken.
SECTION 11.04 Directions to Default Trustee as to Remedial Proceedings. Anything
in this Resolution to the contrary notwithstanding, the holders of a majority of the aggregate
principal amount of the Series 2009 Bonds outstanding shall have the right, by an'instrument or
concurrent instruments in writing executed' and delivered to the Default Trustee, to control the
method and place. of conducting all remedial proceedings to be taken by the Default Trustee
hereunder, provided that such direction shall not be otherwise than in accordance with law or
the provisions of this Resolution, and that the Default Trustee shall have the right to decline to
follow any such direction Which in the opinion of the Default Trustee would be unjustly
prejudicial to Bondholders not parties to such direction.
SECTION 11.05 Restrictions on Actions by Individual Bondholders. No Bondholder
shall have. arty right to institute any suit, action or proceeding in equity or at law for the
execution of any trust hereunder or for any other remedy hereunder, except as otherwise
provided herein. The holders of less than twenty-five percent (25%) of the aggregate principal
amount of the Series 2009 Bonds outstanding may act hereunder and direct proceedings if such
Bondholders shall have made written request of the Default Trustee after the right to exercise
such powers or right of action, as the case may be, shall have accrued, and shall have afforded
the Default Trustee a reasonable opportunity either to proceed to exercise the powers
hereinabove granted or to institute such action, suit or proceeding in its or their name, and
unless, also, there shall have been offered to the Default Trustee reasonable security and
indemnity against the costs, expenses and liabilities to be incurred therein or thereby, including
the reasonable fees of its attorneys (including fees on appeal), and the Default Trustee shall
have refused or neglected to comply with such request within a reasonable period of time; and
such notification, request and offer of indemnity are hereby declared in every such case, at the
option of the Default Trustee, to be conditions precedent to the execution of the powers and
trusts of this Resolution or for any other remedy hereunder. It is understood and intended that
no one or more owners of the Series 2009 Bonds hereby secured .shall have any right in any
manner whatever by his or their action to affect, disturb or prejudice the security of this
Resolution, or to enforce any right hereunder, except in the .manner herein provided, and that
all proceedings at law or in equity shall be instituted, had and maintained in the manner herein
provided and for the benefit of all Bondholders, and that any individual rights of action or any
other right given to one or more of such owners by law are restricted by this Resolution to the
rights and remedies herein provided.
• Nothing contained herein, however; shall affect:or impair the right of any Bondholder,
individually; to enforce the payment of the principal of and interest on his Series 2009 Bond or
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Bonds at and after the maturity thereof, at the time, place, from the source and in the manner
provided in this Resolution.
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.01 Modification or Amendment. This Resolution may be modified or
amended by ordinance or resolution and may be supplemented for the addition of terms,
covenants and provisions in the manner herein provided and as may further be necessary for
issuance of the Series 2009 Bonds hereunder from time to time by supplemental resolution
adopted concurrently with or prior to the issuance of the Series 2009 Bonds. Thereafter, no
modification or amendment of this Resolution or of any resolution or ordinance amendatory
hereof or supplemental hereto not provided for herein, materially adverse to the holders of the
Series 2009 Bonds, may be made without the consent in writing of the owners of not less than a
majority of the aggregate principal amount of Series 2009 Bonds outstanding, but no
modification, amendment or supplemental ordinance or resolution shall permit a change (a) in
the maturity of the Series 2009 Bonds or a reduction in the rate of interest thereon, (b) in the
amount of the principal obligation of any Series 2009 Bond, (c) that would affect the Pledged
Funds of the City for the payment of the amounts provided herein pursuant to Section 6.02
hereof, or (d) that would reduce such percentage of holders of the Series 2009 Bonds, required
above for such modifications or amendments, without the consent all of the Bondholders. For
the purpose of Bondholders' voting rights or consents, the Series 2009 Bonds owned by or held
for the account of the City, directly or indirectly, shall not be counted. The City may amend this
Resolution to make other amendments not prohibited by the foregoing without the consent of
the Bondholders.
Notwithstanding the foregoing or any other provisions to the contrary, for so long as an
Insurance Policy is in full force and effect, consent and approval by such Insurer shall constitute
the required consent and approval of the owners of the Bonds insured by it, provided however,
that in no event shall such Insurer be entitled to consent to the actions listed in (a)-(d) in the
preceding paragraph.
SECTION 12.02 Defeasance. If, at any time after the date of issuance of the Series 2009
Bonds (a) all Series 2009 Bonds secured hereby or any maturity thereof shall have become due
and payable in accordance with their terms or otherwise as provided in this Resolution, or shall
have been duly called for redemption (if applicable), or the, City gives the Paying Agent
irrevocable instructions directing the payment of the principal of, redemption premium, if any,
and interest on such Series 200.9 Bonds at maturity or at any earlier redemption date scheduled
by -the City, or any• combination thereof, (b) the full amount of the principal, .redemption -
premium; if any, . and the interest so due and payable upon all of such Series 2009 Bonds then
outstanding or any portion of such Series 2009 Bonds, at' maturity or upon redemption (if-
__
appiicable);'shall be -paid; or sufficient moneys shall be held by an escrow agent who shall be an
City of Miami Page 41 of 43 File Id: 09-01150b (Version 2) Printed On: 6/30/2010
Authorized Depository or any Paying Agent. (other than the City) in irrevocable .trust for the
benefit of such Bondholders (whether or not in any accounts created hereby) which, when
invested in Goverrunent Obligations maturing not later than the maturity or redemption (if
applicable) dates of such principal, redemption premium, if any, and interest, will, together
with the income realized on such investments, be sufficient to pay all such principal,
redemption premium, if .any, and interest on said Series 2009 Bonds at the maturity thereof or
the date upon which such Series 2009 Bonds are to be called for redemption (if applicable) prior
to maturity, and (c) provision shall also be made for paying all other sums payable hereunder
by the City allocable to such Series 2009 Bonds, then and in that case the right, title and interest
of such Bondholders hereunder shall thereupon cease, determine and become void; otherwise,
this Resolution shall be, continue and remain in full force and effect.
SECTION 12.03 Severability. If any one or more of the covenants, agreements or
provisions of this Resolution should be held contrary to any express provision of law or
contrary to any express provision of law or contrary to the policy of express law, though not
expressly prohibited, or against public policy, or shall for any reason whatsoever be held
invalid, then such covenants, agreements or provisions shall be Hill and void and shall be
deemed severed from the remaining covenants, agreements or provisions of this Resolution or
of the Series 2009 Bonds issued hereunder.
.SECTION 12.04 No Third -Party Beneficiaries. Except as herein otherwise expressly
provided, nothing in this Resolution expressed or implied is untended or shall be construed to
confer upon any person, firm or corporation other than the parties hereto and the owners and
holders of the Series 2009 Bonds issued under and secured by this Resolution, any rights,
remedy or claim, legal or equitable, under or by reason of this Resolution or any provision
hereof, this Resolution and all its provisions being intended to be and being for the sole and
exclusive benefit of the parties hereto and the owners and holders from time to time of the
Series 2009 Bonds issued hereunder.
SECTION 12.05 Controlling Law; Members of City Not Liable. All covenants,
stipulations, obligations and agreements of . the City contained in this Resolution shall be
deemed to be covenants, stipulations, obligations and agreements of the City to the full extent
authorized by the Act and provided by the Constitution and laws of the State. No covenant,
stipulation, obligation or agreement contained herein shall be deemed to be a covenant,
.stipulation, obligation or agreement of any present or future member, agent or employee of the
City in his individual capacity, and neither the members of the City nor any official executing
the Series 2009 Bonds shall be liable personally on the Series 2009 Bonds or this Resolution or
shill be subject to any personal liability or accountability by reason of the issuance or the
execution by the City or such members thereof.
SECTION 12:06 Effect' of Covenants. All covenants, stipulations, obligations and
agreements of :the City - contained in this Resolution -shall be deemed to be covenants,
stipulations, obligations and agreements of the City and of. the City Commission' and of each
department._and agency of the City to the full extent authorized or permitted by law, and all
City of Miami Page 42 of 43 File Id: 09-01150b (Version 2) Printed On: 6/30/2010
such covenants, stipulations, obligations and agreements shall bind or inure to the benefit of the
successor or successors thereof from time to time and any officer, board, body or commission to
whore or to which any power or duty affecting such covenants, stipulations, obligations and
agreements shall be transferred by or in accordance with law.
Except as otherwise provided herein,. all rights, powers and privileges conferred and
duties and liabilities imposed upon the City or upon the City Commission by the provisions of
this Resolution .shall be exercised or performed by the Commission, or by such other officers,
board, body or cornin.ission as may be required by law to exercise such powers or to perform
such duties.
SECTION 12.07 Further Authorizations. The Mayor and the City Manager or either of
them and the Clerk, the Finance Director and the City Attorney and such other officers and
employees of the City as may be designated by the Mayor and the City Manager or either of
them are each designated as agents of the City in connection with the sale, issuance and
delivery of the Series 2009 Bonds and are authorized and empowered, collectively or
individually, to take all action and steps and to execute all instruments, documents and
contracts on behalf of the City, including the execution of documentation required in connection
with the negotiated sale of the Series 2009 Bonds to the Underwriters, that are necessary or
desirable in connection with the sale, execution .and delivery of the Series 2009 Bonds, and
which are specifically authorized or are not inconsistent with the terrns and provisions of this
Resolution, the Bond Purchase Agreement, the Paying Agent and Registrar Agreement, the
Continuing Disclosure Agreement, the Official Statement or any action relating to the Series
2009 Bonds heretofore taken by the City. Such officers and those so designated are hereby
charged with the responsibility for the issuance of the Series 2009 Bonds. Any and all costs
incurred in connection with the issuance of the Series 2009 Bonds are hereby authorized to be
paid from the proceeds of the Series 2009 Bonds.
SECTION 12.08 Repeal of Inconsistent Resolution. All resolutions or parts thereof in
conflict herewith are to the extent of such conflict superseded and repealed.
SECTION 12.09 Effective Date. This Resolution shall be effective immediately upon its
adoption and signature by the Mayor.{1}
APPROVED AS TO FORM AND CORRECTNESS:
Footnotes:
{1}If the.Mayor does not sign this Series Resolution, it.shall become, effective at the•end of ten.
calendar,_ days ..from the. _date it was passed and adopted.. _If the Mayor vetoes this Series ..
- -Resolution, it shall become -effective immediately upon 'override of the veto by the • City:
Commission.
City of Miami 11
Page 43 of 43 File Id: 09-01150b (Version 2) Printed On: 6/30/2010
EXHIBIT "G"
Tax Certificate
$84,540;000
City of Miami, Florida
Tax -Exempt Special Obligation Parking Revenue Bonds, Series 2010A
(Marlins Stadium Project)
and
$16,830,000
City of Miami, Florida
Taxable Special Obligation Parking Revenue Bonds, Series 2010B
(Marlins Stadium Project)
TAX CERTIFICATE AS TO ARBITRAGE AND
THE PROVISIONS OF SECTIONS 141-150 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
In connection with the issuance by the City of Miami, Florida (the "Issuer") of its
S84,540,000 Tax -Exempt Special Obligation Parking Revenue Bonds, Series 2010A (Marlins Stadium
Project), dated July 29, 2010 (the "Series 2010A Bonds") and its $16,830,000 Taxable Special
Obligation Parking Revenue Bonds, Series 2010B (Marlins Stadium Project), dated July 29, 2010 (the
"Series 2010B Bonds", and together with the Series 2010A Bonds, collectively the "Series 2010
Bonds"), and pursuant to Section 1.148-2(b)(2) of the Income Tax Regulations (the "Regulations"),
the Issuer makes and enters into the following Tax Certificate as to Arbitrage and the Provisions of
Sections 141-150 of the Internal Revenue Code of 1986, as amended (the "Code"). The City
acknowledges that the opinion of Bond Counsel regarding the exclusion of interest on the Series
2010A Bonds from gross income under Section 103(a) and Sections 141-150 of the Code is rendered
in reliance upon the representations and statements of fact and expectations contained herein and
assumes the City's continued compliance with the provisions of this Certificate.
1. The Series 2010 Bonds are being issued pursuant to the Constitution and laws of the
State of Florida, including particularly Chapter 166, Part VII of Chapter 159, Florida Statutes, as
amended, Article VIII, Section 2 of the Constitution of the State of Florida, the Charter of the Issuer
and other applicable provisions of law (the "Act") and pursuant to Resolution No. R-09-0509
adopted by the City Commission of the Issuer (the "Commission") on October 22, 2009, as amended
by Resolution No. R-10-0272 adopted by the Commission on June 24, 2010 and as further amended
by Resolution No. R-10-0281 adopted by the Commission on July 8, 2010 (collectively, the "Bond
Resolution"), to provide for the issuance of the Series 2010 Bonds and for the deposit of money to
various funds and accounts established pursuant to the. Bond. Resolution:..... ... ........... .. .....:........ ..:.:...::
(a) to finance the costs of the design, acquisition, construction and equipping of
. parking appurtenant and ancillary facilities, including retail space, surface lots arid parking
structures for 5,642 parking spaces located adjacent to the site commonly referred to as the
Marlins Baseball Stadium (the "Project");
(b) to currently refinance the Issuer's not to exceed $15,000,000 Special Obligation
Parking Revenue Bond Anticipation Notes, Series 2010 (Marlins Stadium Project) (the
"BAN") issued in connection with the Project, to the extent any draw under the BAN was
funded prior to the issuance of the Series 2010 Bonds;
(c) to make a deposit into the Reserve Fund for the benefit of the Series 2010 Bonds
in an amount equal to one-half of the Reserve Requirement, and to pay the premium for a
Reserve Product (the "Reserve Fund Surety") issued by Assured Guaranty Municipal Corp.
(the "Insurer") with a coverage amount equal to one-half of the Reserve Requirement; and
(d) to pay the costs of issuing the Series 2010 Bonds (the "Issuance Expenses),
including the premium for a Municipal Bond Insurance Policy (the "Bond Insurance")
issued by the Insurer.
Unless otherwise specifically defined, all capitalized tends used in this Certificate shall have the
meanings as those set forth in the Bond Resolution.
2. On the basis of the facts, estimates and circumstances in existence on the date hereof, I
reasonably expect the following with respect to the Series 2010 Bonds being issued this day and as
to the use of the proceeds thereof:
(a) Sale Proceeds of the Series 2010A Bonds in the amount of $83,260,514.98
(representing $84,540,000.00 principal amount of the Series 2010A Bonds, less original issue
discount of $637,996.95 and less underwriter's discount of $641,488.07), are expected to be
needed and fully expended as follows:
(i) $2,812,067.87 of said proceeds will be used to pay the Issuance Expenses
allocated to the Series 2010A Bonds (including a municipal bond insurance premium
to the Insurer of $2,279,051.30 related to the Series 2010A Bonds);
(ii) $4,028,022.77 of said proceeds of the Series 2010A Bonds will be
deposited into the Reserve Fund for the Series 2010A Bonds, and $120,840.69 will be
paid as an insurance premium for the Reserve Fund Surety;
(iii) $3,733,775.10 of said proceeds will be deposited into the Interest
Account of the Fund for the Series 2010A Bonds and used to pay a portion of the
interest due on the Series 2010A Bonds through the January 1, 2012 interest payment
date; and
2
(iv) $72,565,808.55 of said proceeds of the Series 2010A Bonds, together with
the investment earnings thereon, will be deposited into the Series 2010A
Construction Account within the Construction Fund and expended within three
years from the date hereof to pay Project costs.
There is no Accrued Interest.
(b) Sale Proceeds of the Series 2010B Bonds in the amount of $16,681,256.76
(representing $16,830,000.00 principal amount of the Series 2010B Bonds, less underwriter's
discount of $148,743.24), together with a cash contribution from the Issuer in the amount of
$5,000,000.00, are expected to be needed and fully expended as follows:
(i) $512,761.38 of said proceeds will be used to pay the Issuance Expenses
allocated to the Series 2010B Bonds (including a municipal bond insurance premium
to the Insurer of $403,030.43 related to the Series 2010B Bonds);
(ii) $801,888.14 of said proceeds of the Series 2010B Bonds will be deposited
into the Reserve Fund for the Series 2010B Bonds, and $24,056.64 will be paid as an
insurance premium for the Reserve Fund Surety;
(iv) $515,624.15 of said proceeds will be deposited into the Interest Account
of the Sinking Fund for the Series 2010B Bonds and used to pay a portion of the
interest due on the Series 2010B Bonds on the January 1, 2011 interest payment date;
(v) $14,826,926.45 of said proceeds of the Series 2010B Bonds, together with
$5,000,000.00 in cash funds provided by the Issuer and together with the investment
earnings thereon, will be deposited into the Series 2010B Construction Account
within the Construction Fund and expended within three years from the date hereof
to pay Project costs allocated to the use of the Project by the Marlins Baseball Team
pursuant to the City Parking Agreement dated April 15, 2009 (the "Parking
Agreement") between the Issuer, Marlins Stadium Operator, L.L.C. and Miami -Dade
County, Florida (the "County") and to fund a grant to the County toward the costs
of LEED components in the County's Marlin Stadium Project which will be used in
the trade or business of the Marlins Baseball team (collectively, the "Private Use"),
and to pay the costs of a subset of the Project comprising the costs of construction,
build -out and build -out allowances for segregated and discrete retail and
commercial space within the 4 parking structures and a separate and discrete deck
covering a portion of the upper parking floors in the parking structures on which
FP&L, a private utility company, will construct solar photovoltaic panels for the
commercial generation of electricity (collectively, the "Taxable Projects").
ere is no Accrued Interest.
3
(c) The payment of the costs of issuance, reserve funds, bond insurance
premium and similar neutral costs are allocated ratably among the Series 2010A Bonds and
the Series 2010B Bonds.
(d) The Issuer does not expect to sell or otherwise dispose of any property
comprising a part of the Project financed or refinanced with the proceeds of the Series 2010A
Bonds prior to the final maturity date of the Series 2010A Bonds, except such minor parts or
portions thereof as may be disposed of due to normal wear, obsolescence, or depreciation in
the ordinary course of business.
4. Binding contracts or commiiunents obligating the expenditure of not less than 5
percent of the Sale Proceeds of the Series 2010A Bonds toward the cost of the Project have been
entered into by the Issuer prior to the date hereof. Work on the construction and equipping of the
Project and the allocation of the Sale Proceeds of the Series 2010A Bonds to the costs of the Project
will proceed with due diligence. It is expected that the Project will be completed and at least 85
percent of the Sale Proceeds of the Series 2010A Bonds will be allocated to Project expenditures
within three years of the date hereof.
5. Not more than 50 percent of the proceeds of the Series 2010A Bonds will be invested
in obligations having a substantially guaranteed yield for 4 years or more.
6. The Bond Resolution requires the Issuer to have on deposit in the Reserve Fund cash
or a Reserve Fund Surety in an amount equal to the Reserve Requirement. The Issuer has elected to
deposit proceeds of the Series 2010 Bonds into the Reserve Fund in an amount equal to one-half of
the Reserve Requirement and to purchase a Reserve Fund Surety for the remaining one-half of the
Reserve Requirement. The Reserve Requirement imposed by the Bond Resolution is an amount
equal to the lesser of (i) 10% of the proceeds of the Series 2010 Bonds, (ii) the maximum annual debt
service on the Series 2010 Bonds, and (ill) one hundred twenty-five percent (125%) of the average
annual debt service on the Series 2010 Bonds. Amounts on deposit in the Reserve Fund or dray.m
under the Reserve Fund Surety are to be used to pay the principal of and interest on the Series 2010
Bonds when other moneys in the Sinking Fund are insufficient therefore. The Undennwriter has
advised the Issuer in a letter attached as Exhibit A hereto that the deposit in the Reserve Fund in the
amount of the Reserve Requirement was a vital factor in marketing the Series 2010 Bonds at an
interest rate comparable to other bond issues of a similar type and was a requirement for securing
bond insurance for the Series 2010 Bonds.
7. There are no funds or accounts established pursuant to the Bond Resolution or
otherwise, other than the Sinking Fund and the Reserve Fund, which are reasonably expected to be
used to pay debt service on the Series 2010 Bonds, or which are pledged as collateral for the Series
2010 Bonds (or subject to a negative pledge) and for which there is.a reasonable assurance on the
part of the bondholders that amounts therein will be available to pay debt service on the Series 2010
Bonds if the Issuer encounters financial difficulties.
4
8. The portion of the Sinking Fund allocable to the Series 2010 Bonds will be used
primarily to achieve a proper matching of the Pledged Revenues and debt service on the Series 2010
Bonds within each bond year and amounts deposited thereto will be depleted at least once a year
except for any carryover amount which will not in the aggregate exceed the greater of (A) the
earnings on such fund for the immediately preceding bond year, or (B) one -twelfth of the debt
service on the Series 2010 Bonds for the immediately preceding bond year.
9. Except for preliminary expenditures, such as architectural, engineering, surveying,
soil testing, and similar costs, proceeds of the Series 2010A Bonds will not be used to reimburse the
Issuer for Project costs paid prior to the date which is 60 days before October 22, 2009. Except for
preliminary expenditures, any Project costs paid prior to the date of issuance of the Series 2010A
Bonds which are to be reimbursed from Sale Proceeds will be reimbursed not later than 18 months
after the later of (a) the date the original expenditure was paid; or (b) the date that the portion of the
Project to which the reimbursement relates was placed in service.
10. The following represents the expectations of the Issuer with respect to the investment
of funds on deposit in the aforementioned funds and accounts:
(a) Proceeds derived from the sale of the Series 2010A Bonds to be applied to pay
Issuance Expenses may be invested at an unrestricted yield for a period not to exceed 3
years from the date hereof;
(b) Proceeds derived from the sale of the Series 2010A Bonds deposited in the
Construction Fund to pay Project costs may be invested at an unrestricted yield for a period
not to exceed three years from the date hereof.
(c) Investment earnings on obligations acquired with amounts described in
subparagraphs (a) and (b) above may be invested at an unrestricted yield for a period of
three years from the date hereof or one year from the date of receipt, whichever period is
longer. Investment earnings on obligations acquired with amounts described in
subparagraph (a) above may be invested at an unrestricted yield for a period not to exceed
13 months from the date of receipt.
(d) Amounts described in subparagraphs (a) through (c) that may not be
invested at an unrestricted yield pursuant to such subparagraphs, may be invested at an
unrestricted yield to the extent such amounts do not exceed $100,000 (the "Minor Portion").
(e) All amounts deposited in the Sinking Fund allocated to the Series 2010A
Bonds may be invested at an unrestricted yield for a period of 13 months from the date of
deposit of such amounts to .such Fund. Investment earnings on such amounts may be
invested at an unrestricted yield for a period of 13 months from the date of receipt of the
`amount earned.
5
(f) Amounts described in subparagraph (e) that may not be invested at an
unrestricted yield pursuant to such subparagraph may be invested at an unrestricted yield
to the extent such amount does not exceed the Minor Portion reduced by the amounts
described in subparagraph (d) that are invested at a yield in excess of the yield on the Series
2010A Bonds.
(g) Amounts described in this Paragraph 10 that may not be invested at an
unrestricted yield shall be invested at a yield not in excess of 5.612073% (i.e. 5.487073% plus
.125%) or be invested in tax-exempt obligations under Section 103(a) of the Code the interest
on which is not an item of preference within the meaning of Section 57(a)(5) of the Code.
11. For purposes of this Certificate, "yield" means that yield which when used in
computing the present worth of all payments of principal and interest (including any qualified
guarantee fees) to be paid on an obligation produces an amount equal to the issue price of such
obligation. The yield on obligations acquired with amounts described in Paragraph 10 hereof and
the yield on the Series 2010A Bonds shall be calculated by the use of the same frequency interval of
compounding interest. In the case of the Series 2010A Bonds, the issue price is the initial offering
price to the public (excluding bond houses,. brokers and other interniediaries) at which price at least
10% of each maturity of the Series 2010A Bonds was sold to the public. Such initial offering price
for the Series 2010A Bonds is, in the aggregate, $83,902,003.05, as represented in a letter from Merrill
Lynch, Pierce, Fenner S: Smith L-ncorporated (the "Underwriter") attached as Exhibit A hereto. Any
investments acquired with amounts that may not be invested at an unrestricted yield pursuant to
paragraph 10 above shall be purchased at prevailing market prices and shall be limited to securities
for which there is an established market or shall be tax-exempt obligations under 103(a) of the Code
the interest on which is not an item of tax preference within the meaning of Section 57(a)(5) of the
Code.
In accordance with such meaning of the term yield, the yield on the Series 2010A Bonds has
been determined to be not less than 5.487073%. Such determinations as to yield have been made on
the basis of computations perforuned by Merrill Lynch, Pierce, Fenner & Smith Incorporated and by
their representation as to the initial offering prices of the Series 2010A Bonds to the public. See
Exhibit A hereto.
12. No portion of the proceeds of the Series 2010A Bonds will be used as a substitute for
other moneys of the Issuer which were otherwise to be used to construct the Project and which have
been or will be used to acquire, directly or indirectly, obligations producing a yield in excess of the
yield on the Series 2010A Bonds.
13. The weighted average maturity of the Series 2010A Bonds does not exceed 120
percent of. the reasonably expected economic life of the Project to be financed with the proceeds of
the Series 2010A Bonds (within the meaning of Section 147(b). of'the :Code).
6
14. There are no other obligations of the Issuer that (i) are being sold at substantially the
same time as the Series 2010 Bonds (within 15 days); (ii) are being sold pursuant to a common plan
of financing together with the Series 2010 Bonds; and (iii) will be paid out of substantially the same
source of funds (or will have substantially the same claim to be paid out of substantially the same
source of funds) as the Series 2010 Bonds.
15. The Issuer has covenanted in the Bond Resolution that so long as the Series 2010A
Bonds remain outstanding, the moneys on deposit in any fund or account maintained in connection
with the Series 2010A Bonds, will not be used in any manner that would cause the Series 2010A
Bonds to be "arbitrage bonds" within the meaning of Section 148 of the Code or bonds not described
under Section 103(a) of the Code and the applicable regulations promulgated from time to time
thereunder. Accordingly, the Issuer shall comply with the guidelines and instructions in the
Arbitrage Letter of Instructions from Bond Counsel, dated the date hereof, by which the Issuer shall,
among other things, pay or cause to be paid to the United States an amount equal to the sum of (i)
the excess of the aggregate amount earned from the investment of "Gross Proceeds" of the Series
2010A Bonds from the date of issue over the amount that would have been earned if such amounts
had been invested at a yield equal to the yield of the Series 2010A Bonds, plus (ii) the income or
earnings attributable to the excess amount described in (i). See Exhibit C attached hereto.
16. The Issuer is not aware of any facts or circumstances that would cause it to question
the accuracy of the representations made by the Financial Advisor or the Underwriter in the letters
attached as Exhibits A and B hereto, or the accuracy of the computations performed by the
Underwriter.
17. None of the proceeds of the Series 2010A Bonds will be used (directly or indirectly)
to make or finance loans to non -governmental persons.
18. None of the proceeds of the Series 2010A Bonds will be used (directly or indirectly)
to acquire any property which prior to its acquisition was used (or held for use) by a person other
than a state or local governmental unit in connection with an output facility. For purposes of this
Certificate, the term "output facility" means electric and gas generation, transmission, and related
facilities (but not water facilities).
19. No portion of the proceeds of the Series 2010A Bonds will be used to finance output
facilities (as that term is defined in Paragraph 18 above).
20. The Issuer does not expect that more than 10% (5% with respect to an unrelated or
disproportionate use) of the proceeds of the Series 2010A Bonds will be used (directly or indirectly)
in a trade or business (or to finance facilities which are used in a trade or business) carried on by
any person other than a state or local governmental unit. For the purpose of this Paragraph 20, use
of a facility by a person on the same basis as a member of; the general public shall not be taken into
account.
7
21. Paragraph 20 shall apply only if the payment of 10% (5% with respect to an unrelated
or disproportionate use) or more of the principal of or interest on the Series 2010A Bonds is (under
the terins of such Bonds or any underlying arrangement) directly or indirectly secured by any
interest in property used or to be used for a private business use or in payments in respect of such
property or derived from payments whether or not to the Issuer in respect of property or borrowed
money used or to be used for a private business use.
22. A portion of the Project will consist of the Taxable Project (the costs of construction,
build -out and build -out allowances for segregated and discrete retail and commercial space within
the 4 parking structures and a separate and discrete deck covering a portion of the upper parking
floors in the parking structures on which FP&L, a private utility company, will construct solar
photovoltaic panels for the commercial generation of electricity), with a construction cost equal to
$4,964,050.00. This amount is determined by adding (i) $799,215 of the total construction costs of
the Project which is allocated to creating the shell and structural aspects of a discrete portion of the
parking garages segregated for retail and commercial use in a trade or business, (ii) $2,000,000 for
the retail build -out allowance for restaurant facilities, (iii) $1,164,835 for the retail build -out
allowance for dry areas, and (iv) $1,000,000 for the Issuer's contribution to the cost of a deck
covering a portion of the parking garages for the placement of solar photovoltaic panels by a private
trade or business user. In accordance with Treasury Regulation section 1.141-3(g)(4)(iv), the Taxable
Project is treated as a separate facility. All of the costs of the Taxable Project are allocated to a cash
contribution made by the Issuer from its legally available funds, and any private payments resulting
from the private trade or business use of the Taxable Project is allocated to cash funds provided by
the Issuer and not to proceeds of the Series 2010A Bonds, in accordance with Treasury Regulation
section 1.141-4(c)(3)(ii) and (iii).
A portion of the Project (exclusive of the Taxable Project) jointly funded with proceeds of the
Series 2010A Bonds and the Series 2010B Bonds will be available for the Private Use. In accordance
with the Parking Agreement the Marlins baseball club will be entitled to use (i) 250 parking spaces
for their exclusive use 24 hours a day each day of the year at no cost to the Marlins (the "exclusive
use spaces"), (ii) all of the remaining 5,392 parking spaces for 81 basebalI games (a double deader
will count as 2 games out of the 81 game allowance), for a period commencing 2 hours before a
game and ending 2 hours after the conclusion of a game (the "game day spaces") for which spaces
the Marlins will be obligated to pay to the Issuer a predetermined rate per space starting at $10.03,
and (iii) in the event the Marlins schedule a special event at the Marlin Stadium with at least 5,000
tickets sold, the Marlins will have the right to use the remaining 5,392 parking spaces during the
special event at no additional costs to the Marlins beyond reimbursing the Issuer for operating costs
of the parking facilities during such. time (the "special event spaces").
The costs of designing, constructing and equipping the Project (exclusive of the Taxable Project) is
...allocated between. theaverage general public use of the Project and the average Private Use,of the
Project.. The. Issuer has determined that the Project will be:open available and Mannedas a -public
`parking facility 24' hours a day on each day of the year Parking statistics available to .the Issuer
demonstrate the 24-hour-use of other public parking facilities within a 5/8th mile radius of the Project
8
at a rate in excess of the number of new spaces to be provided by the Project. In addition, the area
surrounding the Project is an area designated for economic development by the Issuer and the
Issuer anticipates and expects that surrounding area will be the subject of commercial development,
resulting in a concurrent anticipated increase in general public use demand for the Project. Such use
expectation is consistent with similarly situated public parking facilities owned and operated by the
Issuer as public parking facilities. Pursuant to Section 3.9 of the Construction Administration
Agreement dated April 15, 2009 among the Issuer, Miami -Dade County, Florida and Marlins
Stadium Developer, LLC, the Issuer, the Issuer intends to develop commercial, retail and other
development on the Project site. Based on this, the total parking space hours available for any use of
the Project is 49,423,920 hours (365 days x 24 hours x 5,642 spaces). The parking space hours
allocated to exclusive use spaces is 2,190,000 hours (365 days x 24 hours x 250 spaces). The parking
space hours allocated to the game day spaces is 4,367,520 (81 games x 10 hours per game x 5,392
spaces). The Issuer has determined that a reasonable estimate of game day use of 10 hours a game
is determined by assuming that the average major league baseball game does not exceed 6 hours,
plus the 2 hours before and 2 hours after each game. The parking space hours allocated to special
event spaces is 808,800 (25 special events x 6 hours x 5,392 spaces). Although the Parking
Agreement does not establish a maximum number of special events the Marlins may schedule,
based on discussions and negotiations with representatives of the Marlins, the Issuer and the
Marlins do not expect that more than 10 special events would occur in any year, but assuming 25
special events could be scheduled in a year is a reasonable basis for determining allocation of use of
the Project.
The reasonably expected average use of the Project (exclusive of the Taxable Project) by the
Marlins pursuant to their rights in the Parking Agreement equals 7,366,320 parking space hours, or
14.90% of the total parking space hours (7,366,320/49,423,920). Since the fair market value of the use
of the Project as general public parking facilities to the Issuer is greater than the fair market value to
the Issuer of the private use of the Project pursuant to the Parking Agreement, the Issuer has
allocated use of the Project in accordance with Treasury Regulation section 1.141-3(g)(4)(ii) based on
such use at different times. The Issuer does not reasonably expect that there will be any private use
of the Project (exclusive of the Taxable Project) except pursuant to the Parking Agreement.
The total design, construction and equipment cost of the Project (exclusive of the Taxable
Portion and the $1,350,000 grant to the County) is not greater than $86,078,685, 14.90% of which
equals $12,825,724.07. Since the grant to the County of $1,350,000 for LEED costs incurred in the
construction of the Marlin's stadium being constructed by the County is subject to private trade or
business use, the Issuer is treating the funding of the County grant as an expenditure for a private
trade or business use. Tor all of such private trade or business use, the Issuer must provide not less
than $14,175,724.07 ($12,825,724.07+ $1,350,000), The Issuer has provided net proceeds of the Series
2010B Bonds in the amount of $14,826,926.45 to fund the County grant and to pay the portion of the
costs, of the Project. (exclusive: of the Taxable Project) allocated to :private trade :or: -business .use ---
pursuant to the Parking Agreement. Any private payments for the trade or business use of the.._
:Project pursuant to Parking Agreement are allocated to the:Series'2010B Bonds and not.the Series'
2010A Bonds in accordance with Treasury Regulation section 1.141-4(c)(3)(iii). .. ... ......._
9
The Issuer levies and will collect a Parking Surcharge on all public parking facilities owried
and operated by the Issuer. The parking spaces utilized in the Project will be subject to the Parking
Surcharge on the same basis and at the same rate as applies to all other public parking spaces in the
Issuer. As such, any receipts from the Parking Surcharge are treated as a generally applicable tax
receipts in accordance with Treasury Regulation section 1.141-4(e).
23. The payment of the principal of and interest on the Series 2010A Bonds is not and
will not be guaranteed directly or indirectly by the federal government within the meaning of
Section 149(b) of the Code.
24. This Certificate is, in part, to serve as a guideline in implementing the requirements
of Sections 141 to 150 of the Code. If regulations, rulings, announcements and notices validly
promulgated under the Code contain requirements which differ from those outlined here which
must be satisfied for the Series 2010A Bonds to be tax-exempt or in order to avoid the imposition of
penalties under Section 148 of the Code, pursuant to the covenants contained in the Bond
Resolution, the Issuer is obligated to take such steps as are necessary to comply with such
requirements. If under those pronouncements, compliance with any of the requirements of this
Certificate is not necessary to maintain the exclusion of interest on the Series 2010A Bonds from
gross income and alternative minimum taxable income (except to the extent of certain adjustments
applicable to corporations) or to avoid the imposition of penalties on the Commission under Section
148 of the Code, the Issuer shall not be obligated to comply with that requirement. The Issuer has
been advised to seek the advice of competent counsel with a nationally recognized expertise in
matters affecting exclusion of interest on municipal bonds from gross income in fulfilling its
obligations under the Code to take all steps as are necessary to maintain the tax-exempt status of the
Series 2010A Bonds.
25. To the best of my knowledge, i nfonmation and belief, the above expectations are
reasonable.
[Remainder of page intentionally left blank)
10
IN WITNESS WHEREOF, I have hereunto set my hand this 29th day of July, 2010.
CITY OF MIAMI, FLORIDA
By:
Carlos A. Migoya
.City Manager
By:
Diana M.
Finance Dir-ct.r
11
EXHIBIT A
July 29, 2010
The Honorable Mayor and Members
of the City Commission of the City of Miami
Miami, Florida
Re: $84,540,000 City of Miami, Florida Tax -Exempt Special Obligation Parking Revenue
Bonds, Series 2010A (Marlins Stadium Project) and $16,830,000 City of Miami,
Florida Taxable Special Obligation Parking Revenue Bonds, Series 2010B (Marlins
Stadium Project)
Ladies and Gentlemen:
The undersigned, as representative of the underwriters in connection with the sale of the
above -referenced Series 2010 Bonds, hereby represents that:
1. All of the Series 2010 Bonds have been the subject of an initial offering to the public
(excluding bond houses, brokers or similar persons or organizations acting in the capacity of
underwriters or wholesalers), at prices no higher than, or yields no lower than, those shown on the
inside cover of the Official Statement relating to the Series 2010 Bonds.
2. To the best of our knowledge based on our records and other information available
to us which we believe to be correct, at least 10% of the Series 2010A Bonds and the Series 2010B
Bonds was reasonably expected to be sold to the public (excluding bond houses, brokers or similar
persons or organizations acting in the capacity of underwriters or wholesalers) at initial offering
prices not greater than the respective prices shown in the Official Statement. At the time the
Underwriters agreed to purchase the Series 2010 Bonds, based upon our assessment of the then
prevailing market conditions, we had no reason to believe that any of the Series 2010 Bonds would
be initially sold to the public (excluding such bond houses, brokers or similar persons or
organizations acting in the capacity of underwriters or wholesalers) at prices greater than the prices,
or yields less than the yields, shown in the Official Statement.
3. The present value of the amounts paid to obtain the bond insurance and the Reserve
Fund Surety (collectively, the "Credit Enhancement") securing the Series 2010 Bonds is less than the
present value of the interest reasonably expected to be saved as a result of having the Credit
-Enhancement;'. with: respect to the Series 2010A Bonds, using the percentage in Section 11 of this.
:Certificate as thediscount factor for this purpose. To the best knowledge of the undersigned, the
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amount paid by the Issuer to Assured Guaranty Municipal Corp. (the "Insurer") for the Credit
Enhancement is a commercially reasonable charge for the transfer of credit risk on the Series 2010
Bonds.
4. The funding of the Reserve Fund securing the Series 2010 Bonds in an amount equal
to the Reserve Requirement was a vital factor in marketing the Series 2010 Bonds and facilitated the
marketing of the Series 2010 Bonds at an interest rate comparable to that of other bond issues of a
similar type, and was a requirement for obtaining Bond Insurance.
5. The issue price of the Series 2010A Bonds is $83,902,003.05, and the issue price of the
Series 2010B Bonds is $16,830,000.00.
The Underwriters understand that Bond Counsel will rely upon this certificate, among other
things, in reaching its conclusion that the Series 2010A Bonds do not constitute "arbitrage bonds"
within the meaning of Section 148 of the Internal Revenue Code of 1986, as amended.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
4
By:
7Rawii NT. Williams
Managing Director
A-2
EXHIBIT B
[Reserved]
.•,
B-1
EXHIBIT C
July 29, 2010
The Honorable Mayor and Members
of the City Commission of the City of Miami
Miami, Florida
Re: $84,540,000 City of Miami, Florida Tax -Exempt Special Obligation Parking Revenue
Bonds, Series 2010A (Marlins Stadium Project)
Ladies and Gentlemen:
'This letter instructs you as to certain requirements of Section 148 of the Internal Revenue
Code of 1986, as amended (the "Code"), with respect to the $84,540,000 City of Miami, Florida Tax -
Exempt Special Obligation Parking Revenue Bonds, Series 2010A (Marlins Stadium Project) (the
"Series 2010A Bonds"). Capitalized terms used in this letter, not otherwise defined herein, shall
have the same meanings as set forth in the City's Tax Certificate as to Arbitrage and the Provisions
of Sections 141-150 of the Internal Revenue Code of 1986, As Amended (the "Tax Certificate")
executed on the date hereof.
This letter is intended to provide you with general guidance regarding compliance with
Section 148(f) of the Code. Because the requirements of the Code are subject to amplification and
clarification, you should seek supplements to this letter from time to time to reflect any additional
or different requirements of the Code. In particular, you should be aware that regulations
implementing the rebate requirements of Section 148(f) (the' Regulations") have been issued by the
United States Treasury Department. These regulations will, by necessity, be subject to continuing
interpretation and clarification through future rulings or other announcements of the United States
Treasury Department. You should seek further advice of Bond Counsel as to the effect of any such
future interpretations before the computation and payment of any arbitrage rebate.
For the purposes of this Letter, (i) any instructions relating to a fund or account shall be
deemed to apply only to the portion of such fund or account allocable to the Series 2010A Bonds
and (ii) any reference to "the date hereof" shall be deemed to mean July 29, 2010.
Section 1. Tax Covenants. Pursuant to Resolution No. R-09-0509 adopted by the City
Commission of the Issuer (the "Commission") on October 22, 2009, as amended by Resolution No.
R-10-0272 adopted by. the Commission on June 24, 2010 and as amended by Resolution No:. R-10-
0281adopted.by..the. Commission on July 8, 2010 (collectively, the "Bond Resolution,'),,the,Issuer
has made certain covenants designed to assure that interest: with respect to the Series 2010A Bonds
C-1
is and shall remain excluded from gross income for federal income tax purposes. The Issuer has
agreed, and by this Letter does hereby covenant, that it wffl not directly or indirectly use or permit
the use of any proceeds of the Series 2010A Bonds or any other funds or take or omit to take any
action that would cause the Series 2010A Bonds to be "arbitrage bonds" within the meaning of
Section 148 of the Code and that would cause interest on the Series 2010A Bonds to be included in
gross income for federal income tax purposes under the provisions of the Code. You have further
agreed by this letter to comply with all other requirements as shall be determined by Bond Counsel
(as hereinafter defined) to be necessary or appropriate to assure that interest on the Series 2010A
Bonds will be excluded from gross income for federal income tax purposes. To that end, the Issuer
will comply with all requirements of Section 148 of the Code to the extent applicable to the Series
2010A Bonds. In particular, the Issuer agrees to cause the proceeds of the Series 2010A Bonds and
certain other amounts described in Paragraph 10 of the Tax Certificate to be invested in a manner
that is consistent with the expectations set forth in such Certificate. In the event that at any time the
Issuer is of the opinion that for purposes of this Section 1. it is necessary to restrict or to limit the
yield on the investment of any moneys held by the Issuer, the Issuer shall take such action as may
be necessary.
Section 2. Definitions. Unless the context otherwise requires, in addition to the use of the
terms defined in the Non Arbitrage Certificate, the following capitalized teims have the following
meanings:
"Bond Counsel" shall mean Bryant Miller Olive P.A., or other nationally recognized bond
counsel selected by the Issuer.
"Bond Year" shall mean the one year period that ends at the close of business on the day in.
the calendar year that is selected by the Issuer. The first and last bond years may be short periods.
"Bond Yield" shall mean that discount rate that, when used in computing the present value
on the Delivery Date of all unconditionally payable payments of principal, interest, retirement price,
and Qualified Guarantee payments paid and to be paid on the Series 2010A Bonds, produces an
amount equal to the present value on the Delivery Date, using the same discount rate, of the
aggregate Issue Price of the Series 2010A Bonds. Yield is computed under the Economic Accrual
Method using any consistently applied compounding interval of not more than one year. Short first
and last compounding intervals may be used. Other reasonable, standard financial conventions,
such as the 30 days per month/360 days per year convention, may be used in computing yield but
must be consistently applied. The yield on the Series 2010A Bonds, computed. by Merrill Lynch,
Pierce, Fenner & Smith Incorporated in this manner, is 5.487073%.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and the applicable
Treasury Regulations promulgated thereunder.
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"Computation Date" shall mean any date selected by the Issuer as a computation date
pursuant to Section 1.148-3(e) of the Regulations, and the Final Computation Date.
"Computation Credit Amount" means an amount, as of each Computation Credit Date,
equal to S1,000, as such amount may be adjusted from time to time.
"Computation Credit Date" means the last day of each Bond Year during which there are
amounts allocated to Gross Proceeds of the Series 2010A Bonds that are subject to the rebate
requirement of Section 148(f) of the Code, and the Final Computation Date.
"Delivery Date" shall mean July 29, 2010.
"Economic Accrual Method" shallmean the method of computing yield that is based on the
compounding of interest at the end of each compounding period (also known as the constant
interest method or the actuarial method).
"Final Computation Date" shall mean the date that the last bond that is part of the Series
2010A Bonds is discharged.
"Gross Proceeds" shall mean with respect to the Series 2010A Bonds, any proceeds of the
Series 2010A Bonds and any funds (other than the proceeds of the Series 2010A Bonds) that are a
part of a reserve or replacement fund for the issue, which amounts include amounts which are (A)
actually or constructively received by the Issuer from the sale of the Series 2010A Bonds (other than
amounts used to pay accrued interest on the Series 2010A Bonds as set for the in the Tax
Certificate); (B) treated as transferred proceeds (as defined in Section 1.148-9(b) of the Regulations);
(C) treated as Replacement Proceeds under Section 1.148-1(c) of the Regulations; (D) invested in a
reasonably required reserve or replacement fund (as defined in Section 1.148-2(f) of the
Regulations); (E) pledged by the Issuer as security for payment of debt service on the Series 2010A
Bonds; (F) received with respect to obligations acquired with proceeds of the Series 2010A Bonds;
(G) used to pay debt service on the Series 2010A Bonds; and (H) otherwise received as a result of
investing any proceeds of the Series 2010A Bonds. The determination of whether an amount is
included within this definition shall be made without regard to whether the amount is credited to
any fund or account established under the Bond. Resolution or (except in the case of an amount
described in (E) above) whether the amount is subject to the pledge of such instrument.
"Guaranteed Investment Contract" means any Nonpurpose Investment that has specifically
negotiated withdrawal or reinvestment provisions and a specifically negotiated interest rate, and
also includes any agreement to supply investments on two or more future dates (e.g., a forward
supply contract).
"Installment Payment Date" shall mean a Computation Date that is not later than 5 years
after the Delivery Date and subsequent Computation Dates which occur no later than 5 years after
the immediately preceding Installment Payment Date.
"Investment Property" shall mean any security or obligation, any annuity contract or other
investment -type property within the meaning of Section 148(b)(2) of the Code. The term Investment
Property shall not include any obligation the interest on which is excluded from gross income (other
than a Specified Private Activity Bond within the meaning of Section 57(a)(5)(C) of the Code) and
shall not include an obligation that is a one -day certificate of indebtedness issued by the United
States Treasury pursuant to the Demand Deposit State and Local Government Series Program
described in 31 CFR, part 344.
"Issue Price" shall mean, with respect to each bond comprising the Series 2010A Bonds, the
issue price for such bond set forth in the letter from Merrill Lynch, Pierce, Fenner 8: Smith
Incorporated, as the representative of the underwriters of the Series 2010A Bonds, attached as
Exhibit A to the Tax Certificate.
"Issue Yield" shall mean the Bond Yield unless the Series 2010A Bonds are described in
Section 1.148-4(b)(3) or (4) of the Regulations, in which case, the Issue Yield shall be the Bond Yield
as recomputed in accordance with such provisions of the Regulations.
"Nonpurpose Investment" shall mean any Investment Property in which Gross Proceeds are
invested, other than any Purpose Investuent as defined in Section 1.148-1(b) of the Regulations. For
purposes of this Letter, .Investutent Property acquired with revenues deposited in the Sinking Fund
to be used to pay debt service on the Series 2010A Bonds within 13 months of the date of deposit
therein shall be disregarded.
"Nonpurpose Payment" shall, with respect to a Nonpurpose Investment allocated to the
Series 2010A Bonds, include the following: (1) the amount actually or constructively paid to acquire
the Nonpurpose Investment; (2) the Value of an investment not acquired with Gross Proceeds on
the date such investment is allocated to the Series 2010A Bonds, and (3) any payment of Rebatable
Arbitrage to the United States Government not later than the date such amount was required to be
paid. In addition, the Computation Credit Amount shall be treated as a Nonpurpose Payment with
respect to the Series 2010A Bonds on each Computation Credit Date.
"Nonpurpose Receipt" shall mean any receipt or payment with respect to a Nonpurpose
Inves(nient allocated to.the Series 2010A Bonds. For this purpose the teiui "receipt" means any
amount actually or constructively received with respect to the investment. In the event a
Nonpurpose Investment ceases to be allocated to the Series 2010A Bonds other than by reason of a
_sale.orretirement, such Nonpurpose Investment shall be treated as if sold on the date .of such
cessation for its Value.. In addition, the Value of each) .onpurpose.Investthent at the close of . -
business on each Computation Date shall be taken into account as a Nonpurpose Receipt as of such
C-4
date, and each refund of Rebatable Arbitrage pursuant to Section 1.148-3(i) of the Regulations shall
be treated as a Nonpurpose Receipt.
"Qualified Guarantee" shall have such meaning as ascribed to such teiui by Treasury Section
1.148-4(f) and shall include the municipal bond insurance policy and the Reserve Fund Surety
issued by Assured Guaranty Municipal Corp. (the "Insurer").
"Rebatable Arbitrage" shall mean as of any Computation Date the excess of the future value
of all Nonpurpose Receipts with respect to the Series 2010A Bonds over the future value of all
Nonpurpose Payments with respect to the Series 2010A Bonds. The future value of a Nonpurpose
Payment or a Nonpurpose Receipt as of any Computation Date is determined using the Economic
Accrual Method and equals the value of that payment or receipt when it is paid or received (or
treated as paid or received), plus interest assumed to be earned and compounded over the period at
a rate equal to the Issue Yield, using the same compounding interval and financial conventions used
in computing that yield.
"Retirement Price" shall mean, with respect to a bond, the amount paid in connection with
the retirement or redemption of the bond.
"Value" means value as determined under Section 1.148-5(d) of the Regulations for
investments.
Section 3. Rebate Requirement.
(a) Pursuant to this Letter there shall be established a fund separate from any
other fund established and maintained under the Bond Resolution designated the Rebate
Fund (the "Rebate Fund"). The Issuer shall administer or cause to be administered the
Rebate Fund and invest any amounts held therein in Nonpurpose Investments. Moneys
shall not be transferred from the Rebate Fund except as provided in this Section 3.
(b) Unless one or more of the Spending Exceptions to Rebate described in
Appendix I to this letter are applicable to all or a portion of the Gross Proceeds of the Series
2010A Bonds, the Issuer specifically covenants that it will pay or cause to be paid to the
United States Government the following amounts:
(1) No later than 60 days after each Installment Payment Date, an
amount which, when added to the future value of all previous rebate payments
made with respect to the Series 2010A Bonds, equals at least 90 percent of the
Rebatable Arbitrage calculated as of each such Installment Payment Date; and
(2) No later than 60 days after the;Final-Computation Date,,an amount
which, when added to the future value of all previous rebate payments made with
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respect to the Series 2010A Bonds, equals 100 percent of the Rebatable Arbitrage as
of the Final Computation Date.
(c) Any payment of Rebatable Arbitrage made within the 60-day period
described in Section 3(b)(1) and (2) above may be treated as paid on the Installment
Payment Date or Final computation date to which it relates.
(d) On or before 55 days following each Installment Payment Date and the Final
Computation Date, the Issuer shall determine the amount of Rebatable Arbitrage to be paid
to the United States Government as required by Section 3(b) of this Letter. Upon making
this determination, the Issuer shall take the following actions:
(1) If the amount of Rebatable Arbitrage is calculated to be positive,
deposit the required amount of Rebatable Arbitrage to the Rebate Fund;
(2) If the amount of Rebatable Arbitrage is calculated to be negative and
money is being held in the Rebate Fund, transfer from the Rebate Fund the amount
on deposit in such fund;. and
(3) On or before 60 days following the Installment Payment Date or Final
Computation Date, pay the amount described in Section 3(b) of this Letter to the
United States Government at the Internal Revenue Service Center, Ogden, Utah
84201. Payment shall be accompanied by Form 8038-T. A rebate payment is paid
when it is filed with the Internal Revenue Service at the above location.
(e) The Issuer shall keep proper, books of record and accounts containing
complete and correct entries of all transactions relating to the receipt, investment,
disbursement, allocation and application of the money related to the Series 2010A Bonds,
including money derived from, pledged to, or to be used to make payments on the Series
2010A Bonds. Such records shall specify the account or fund to which each investment (or
portion thereof) held by the Issuer is to be allocated and shall set forth, in the case of each
investment security, (a) its purchase price; (b) nominal rate of interest; (c) the amount of
accrued interest purchased (included in the purchase price); (d) the par or face amount; (e)
maturity date; (f) the amount of original issue discount or premium (if any); (g) the type of
Invesinnent Property; (h) the frequency of periodic payments; (i) the period of
compounding; (j) the yield to maturity; (k) date of disposition; (1) amount realized on
disposition (including accrued interest); and (m) market price data sufficient to establish the
fair market value of any Nonpurpose investment as of any Computation Date, and as of the
date such Nonpurpose Investment becomes allocable to, or ceases to be allocable to, Gross
Proceeds of the Series 2010A Bonds.
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Section 4. Prohibited Investments and Dispositions.
(a) No Investment Property shall be acquired with Gross Proceeds for an amount
(including transaction costs) in excess of the fair market value of such Investment Property.
No Investment Property shall be sold or otherwise disposed of for an amount (including
transaction costs) less than the fair market value of the Investuent Property.
(b) For purposes of subsection 4(a), the fair market value of any Investment
Property for which there is an established market shall be determined as provided in
subsection 4(c). Except as otherwise provided in subsections 4(e) and (f), any market
especially established to provide Investment Property to an issuer of governmental
obligations shall not be treated as an established market.
(c) The fair market value of any InvesLutent Property for which there is an
established market is the price at which a willing buyer would purchase the investment
from a willing seller in a bona fide, arm's-length transaction. Fair market value is generally
determined on the date on which a contract to purchase or sell the Investment Property
becomes binding (i.e., the trade date rather than the settlement date). If a United States
Treasury obligation is acquired directly from or disposed of directly to the United States
Treasury, such acquisition or disposition shall be treated as establishing a market for the
obligation and as establishing the fair market value of the obligation.
(d) Except to the extent provided in subsections (e) and (f), any Inveslutent
Property for which there is not an established market shall be rebuttably presumed to be
acquired or disposed of for a price that is not equal to its fair market value.
(e) In the case of a certificate of deposit that has a fixed interest rate, a fixed
payment schedule, and a substantial penalty for early withdrawal, the purchase price of
such a certificate of deposit is treated as its fair market value on its purchase date if the yield
on the certificate of deposit is not less than (1) the yield on reasonably comparable direct
obligations of the United States; and (2) the highest yield that is published or posted by the
provider to be currently available from the provider on reasonably comparable certificates
of deposit offered to the public.
(f) The purchase price of a Guaranteed Investment Contract is treated as its fair
market value on the purchase date if:
(1) The Issuer makes a bona fide solicitation for the Guaranteed
Investment Contract with specified material teruts and receives at least 3 qualifying
from different reasonably competitive • providers -of - Guaranteed _ Investment
Contracts that have no material financial interest in the Series 2010A"Bonds,
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(2) The Issuer purchases the highest -yielding Guaranteed Lnvestment
Contract for which a. qualifying bid is made (determined net of broker's fees);
(3) The determination of the terms of the Guaranteed InvesLutent
Contract takes into account as a significant factor the Issuer's reasonably expected
drawdown schedule for the funds to be invested, exclusive of float funds and
reasonably required reserve and replacement funds;
(4) The collateral security requirements for the Guaranteed Investment
Contract are reasonable, based on all the facts and circumstances;
(5) The obligor of the Guaranteed Investment Contract certifies those
administrative costs that it is paying (or expects to pay) to third parties in connection
with the contract; and
(6) The yield on the Guaranteed InvesLuient Contract is not less than the
yield currently available from the obligor on reasonably comparable investment
contracts offered to other persons, if any, from a source of funds other than Gross
Proceeds of tax-exempt bonds.
Section 5. Accounting for Gross Proceeds. In order to perform the calculations required by
the Code and the Regulations, it is necessary to track the invesLuient and expenditure of all Gross
Proceeds. To that end, the Issuer must adopt a reasonable and consistently applied method of
accounting for all Gross Proceeds.
Section 6. Administrative Costs of Inveslntents.
(a) Except as otherwise provided in this Section, an allocation of Gross Proceeds of
the Series 2010A Bonds to a payment or receipt on a Nonpurpose Investment is not adjusted
to take into account any costs or expenses paid, directly or indirectly, to purchase, carry, sell
or retire the Nonpurpose Investment (administrative costs). Thus, administrative costs
generally do not increase the payments for, or reduce the receipts from, Nonpurpose
Inv esl.ulents,
(b) In determining payments and receipts on Nonpurpose Investments, Qualified
Administrative Costs are taken into account by increasing payments for, or reducing the
receipts from, the Nonpurpose Investments. Qualified Administrative Costs are reasonable,
direct administrative costs, other than carrying costs, such as separately stated brokerage or
selling commissions, but not legal and accounting fees, recordkeeping, custody, and similar
- costs. ,General overhead costs and similar indirect costs of the Issuer such as employee
salaries:and_office expenses and costs associated with computing'Rebatable Arbitrage are
not Qualified Administrative Costs
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(c) Qualified Administrative Costs include all reasonable administrative costs,
without regard to the limitation on indirect costs stated in subsection (b) above, incurred by:
(i) A publicly offered regulated invesLuient company (as defined in Section
67(c)(2)(B) of the Code); and
(ii) A commingled fund in which the Issuer and any related parties do not
own more than 10 percent of the beneficial interest in the fund.
(d) For a Guaranteed Investment Contract, a broker's commission paid on behalf of
either the Issuer or the provider is not a Qualified Administrative Cost to the extent that the
commission exceeds 0.05 percent of the amount reasonably expected to be invested per year.
Section 7. Records; Bond Counsel Opinion.
(a) The Issuer shall retain all records with respect to the calculations and
instructions required by this Letter for at least 6 years after the date on which the last of the
principal of and interest on the Series 2010A Bonds has been paid, whether upon maturity,
redemption or acceleration thereof.
(b) Notwithstanding any provisions of this Letter, if the Issuer shall be provided
an opinion of Bond Counsel that any specified action required under this Letter is no longer
required or that some further or different action is required to maintain or assure the
exclusion from federal gross income of interest with respect to the Series 2010A Bonds, the
Issuer may conclusively rely on such opinion in complying with the requirements of this
Letter.
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Section 8. Survival of Defeasance. Notwithstanding anything in this Letter to the contrary,
the obligation of the Issuer to remit the Rebate Requirement to the United States Department of the
Treasury and to comply with all other requirements contained in this Letter must survive the
defeasance or payment of the Series 2010A Bonds.
Received and acknowledged:
City of Miami, Florida
iana MI C mez
Finance ctor
Dated: July 29, 2010
C-10
Very truly yours,
BRYANT MILLER OLIVE P.A.
�� /A
Appendix I
Spending Exceptions to Rebate
(a) Generally. All, or certain discrete portions, of an issue are treated as meeting the
Rebate Requirement of Section 148(f) of the Code if one or more of the spending exceptions set forth
in this Appendix are satisfied. Use of the spending exceptions is not mandatory; except that where
an issuer elects to apply the 1-1/2 percent penalty (as described below) the issuer must apply that
penalty to the Construction Issue. An issuer may apply the Rebate Requirement to an issue that
otherwise satisfies a spending exception. Special definitions relating to the spending exceptions are
contained in section (h) of this Appendix.
Where several obligations that otherwise constitute a single issue are used to finance two or
more separate governmental purposes, the issue constitutes a "multipurpose issue" and the bonds,
as well as their respective proceeds, allocated to each separate purpose may be treated as separate
issues for purposes of the spending exceptions. In allocating an issue among its several separate
governmental purposes, "common costs" are generally not treated as separate governmental
purposes and must be allocated ratably among the discrete separate purposes unless some other
allocation method more accurately reflects the extent to which any particular separate discrete
purpose enjoys the economic benefit (or bears the economic burden) of the certain common costs
(e.g., a newly funded reserve for a parity issue that is new money).
Separate purposes include financing a separate Purpose Invesiutent (e.g., a separate loan),
financing a Construction Issue, and any clearly discrete governmental purpose reasonably expected
to be financed by the issue. In addition, as a general rule, all integrated or functionally related
capital projects qualifying for the same initial temporary period (e.g., 3 years) are treated as having
a single governmental purpose. Finally, separate purposes may be combined and treated as a single
purpose if the proceeds are eligible for the same initial temporary period (e.g., advance refundings
of several separate prior issues could be combined, or several non-integrated and functionally
unrelated capital projects such as airport runway improvements and a water distribution system).
The spending exceptions described in this Appendix are applied separately to each separate
issue component of a multipurpose issue unless otherwise specifically noted.
(b) Six -Month Exception. An issue is treated as meeting the Rebate Requirement under
this exception if (i) the gross proceeds of the issue are allocated to expenditures for the
governmental purposes of the issue within the six-month period beginning on the issue date (the
"six-month spending period")-and-(ii) the Rebate Requirement ismetfor amounts not required to be
spent within the six-month spending period (excluding -earnings on: a.bona.fide debt sen ice.fund),:
For purposes. of the six-month exception, "gross proceeds" mearis Gross •Proceeds other _than
Appendix I-1
amounts (i) in a bona fide debt service fund, (ii) in a reasonably required reserve or replacement
fund, (iii) that, as of the issue date, are not reasonably expected to be Gross Proceeds but that
become Gross Proceeds after the end of the six-month spending period, (iv) that represent Sale
Proceeds or Investment Proceeds derived from payments under any Purpose Investment of the
issue and (v) that represent repayments of grants (as defined in Treasury Regulation Section 1.148-
6(d)(4)) financed by the issue. In the case of an issue no bond of which is a private activity bond
(other than a qualified 501(c)(3) bond) or a tax or revenue anticipation bond, the six-month spending
period is extended for an additional six months for the portion of the proceeds of the issue which
are not expended within the six-month spending period if such portion does not exceed the lesser of
five percent of the Proceeds of the issue or $100,000.
(c) 18-Month Exception. An issue is treated as meeting the Rebate Requirement under this
exception if all of the following requirements are satisfied:
(i) the gross proceeds are allocated to expenditures for a governmental purpose of the issue
in accordance with the following schedule (the "18-month expenditure schedule") measured from
the issue date: (A) at least 15 percent within six months, (B) at least 60 percent within 12 months
and (C) 100 percent within 18 months;
(ii) the Rebate Requirement is met for all amounts not required to be spent in accordance
with the 18-month expenditure schedule (other than earnings on a bona fide debt service fund); and
(iii) all of the gross proceeds of the issue qualify for the initial temporary period under
Treasury Regulation Section 1.148-2(e)(2).
For purposes of the 18-month exception, "gross proceeds" means Gross Proceeds other than
amounts (i) in a bona fide debt service fund, (ii) in a reasonably required reserve or replacement
fund, (iii) that, as of the issue date, are not reasonably expected to be Gross Proceeds but that
become Gross Proceeds after the end of the 18-month expenditure schedule, (iv) that represent Sale
Proceeds or Invesl.uient Proceeds derived from payments under any Purpose Investuent of the
issue and (v) that represent repayments of grants (as defined in Treasury Regulation Section 1.148-
6(d)(4)) financed by the issue. In addition, for purposes of determining compliance with the first
two spending periods, the inves in tent proceeds included in gross proceeds are based on the issuer's
reasonable expectations as of the issue date rather than the actual Investment Proceeds; for the
third, final period, actual Investment Proceeds earned to date are used in place of the reasonably
expected earnings. An issue does not fail to satisfy the spending requirement for the third spending
period above as a result of a Reasonable Retainage if the Reasonable Retainage is allocated to
expenditures within 30 months of the issue date. The 18-month exception does not apply to an
issue any portion of which is treated as meeting the Rebate Requirement as a result of satisfying the
two-year exception.
Appendix I-2
(d) Two -Year Exception. A Construction Issue is treated as meeting the Rebate
Requirement for Available Construction Proceeds under this exception if those proceeds are
allocated to expenditures for governmental purposes of the issue in accordance with the following
schedule (the "two-year expenditure schedule"), measured from the issue date:
(i) at least 10 percent within six months;
(ii) at least 45 percent within one year;
(iii) at least 75 percent within 18 months; and
(iv) 100 percent within two years.
An issue does not fail to satisfy the spending requirement for the fourth spending period above as a
result of unspent amounts for Reasonable Retainage if those amounts are allocated to expenditures
within three years of the issue date.
(e) Expenditures for Governmental Purposes of the Issue. For purposes of the spending
exceptions, expenditures for the governmental purposes of an issue include payments for interest,
but not principal, on the issue and for principal or interest on another issue of obligations. The
preceding sentence does not apply for purposes of the 18-month and two-year exceptions if those
payments cause the issue to be a refunding issue.
(f) De Minimis Rule. Any failure to satisfy the final spending requirement of the 18-
month exception or the two-year exception is disregarded if the issuer exercises due diligence to
complete the project financed and the amount of the failure does not exceed the lesser of three
percent of the issue price of the issue or $250,000.
(g) Elections Applicable to the Two -Year Exception. An issuer may make one or more of
the following elections with respect to the two-year spending exception:
(1) Earnings on Reasonably Required Reserve or Replacement Fund. An issuer may
elect on or before the issue date to exclude from Available Construction Proceeds the earnings on
any reasonably required reserve or replacement fund. If the election is made, the Rebate
Requirement applies to the excluded amounts from the issue date.
(2) Actual Facts. For the provisions relating to the two-year exception that apply based.
on the issuer's reasonable expectations, an issuer may elect on or before the issue date to apply all of
those provisions based on actual facts. This election does not apply for purposes of determining
whether an issue is a Construction Issue and if the 1-1/2 percent penalty election is made.
Appendix I-3
(3) Separate Issue. For purposes of the two-year exception, if any proceeds of any issue
are to be used for Construction Expenditures, the issuer may elect on or before the issue date to
treat the portion of the issue that is not a refunding issue as two, and only two, separate issues, if
(i) one of the separate issues is a Construction Issue, (ii) the issuer reasonably expects, as of the issue
date, that such Construction Issue will finance all of the Construction Expenditures to be financed
by the issue and (iii) the issuer makes an election to apportion the issue in which it identifies the
amount of the issue price of the issue allocable to the Construction Issue.
(4) Penalty in Lieu of Rebate. An issuer of a Construction Issue may irrevocably elect on
or before the issue date to pay a penalty (the "1-1/2 percent penalty") to the United States in lieu of
the obligation to pay the rebate amount on Available Construction Proceeds upon failure to satisfy
the spending requirements of the two-year expenditure schedule. The 1-1/2 percent penalty is
calculated separately for each spending period, including each semiannual period after the end of
the fourth spending period, and is equal to 1.5 percent times the underexpended proceeds as of the
end of the spending period. For each spending period, underexpended proceeds equal the amount
of Available Construction Proceeds required to be spent by the end of the spending period, less the
amount actually allocated to expenditures for the governmental purposes of the issue by that date.
The 1-1/2 percent penalty must be paid to the United States no later than 90 days after the end of the
spending period to which it relates. The 1-1/2 percent penalty continues to apply at the each of each
spending period and each semiannual period thereafter until the earliest of the following:. (i) the
termination of the penalty under Treasury Regulation Section 1.148-7(1), (ii) the expenditure of all of
the Available Construction Proceeds or (iii) the last stated final maturity date of bonds that are part
of the issue and any bonds that refund those bonds. If an issue meets the exception for Reasonable
Retainage except that all retainage is not spent within three years of the issue date, the issuer must
pay the 1-1/2 percent penalty to the United States for any Reasonable Retainage that was not so
spent as of the close of the three-year period and each later spending period.
(h) Special Definitions Relating to Spending Expenditures.
(1) Available Construction Proceeds shall mean, with respect to an issue, the amount
equal to the sum of the issue price of the issue, earnings on such issue price, earnings on amounts in
any reasonably required reserve or replacement fund not funded from the issue and earnings on all
of the foregoing earnings, less the amount of such issue price in any reasonably reqiiired reserve or
replacement fund and less the issuance costs financed by the issue. For purposes of this definition,
earnings include earnings on any tax-exempt bond. For the first three spending periods of the two-
year expenditure schedule described in Treasury Regulation Section 1.148-7(e), Available
Construction Proceeds include the amount of future earnings that the issuer reasonably -expected as
of the issue date. For the fourth spending period described in Treasury Regulation Section 1.148-
7(e), Available Construction Proceeds include the actual earnings received. Earnings on any
reasonably reqiiired reserve or replacement fund are Available Construction Proceeds only to the
_ extent that .those earnings- accrue before the earlier of (i) the date ;construction is substantially ..
cornpleted:or (ii) thedate that is two -years after the issue date. For this purpose, construction may
Appendix I-4
be treated as substantially completed when the issuer abandons construction or when at least 90
percent of the total costs of the construction that the issuer reasonably expects as of such date will
be financed with proceeds of the issue have been allocated to expenditures. If only a portion of the
construction is abandoned, the date of substantial completion is the date the non -abandoned
portion of the construction is substantially completed.
(2) Construction Expenditures shall mean capital expenditures (as defined in Treasury
Regulation Section 1.150-1) that are allocable to the cost of Real Property or Constructed Personal
Property. Construction Expenditures do not include expenditures for acquisitions of interest in
land or other existing Real Property.
(3) Construction Issue shall mean any issue that is not a refunding issue if (i) the issuer
reasonably expects, as of the issue date, that at least 75 percent of the Available Construction
Proceeds of the issue will be allocated to Construction Expenditures for property owned by a
governmental unit or a 501(c) (3) organization and (ii) any private activity bonds that are part of the
issue are qualified 501(c)(3) bonds or private activity bonds issued to financed property to be owned
by a governmental unit or a 501(c)(3) organization.
(4) Constructed Personal Property shall mean Tangible Personal Property or Specially
Developed Computer Software if (i) a substantial portion of the property is completed more than six
months after the earlier of the date construction or rehabilitation commenced and the date the issuer
entered into an acquisition contract; (ii) based on the reasonable expectations of the issuer, if any, or
representations of the person constructing the property, with the exercise of due diligence,
completion of construction or rehabilitation (and delivery to the issuer) could not have occurred
within that six-month period; and (iii) if the issuer itself builds or rehabilitates the property, not
more than 75 percent of the capitalizable cost is attributable to property acquired by the issuer.
(5) Real Property shall mean land and improvements to land, such as buildings or other
inherently permanent structures, including interests in real property. For example, Real Property
includes wiring in a building, plumbing systems, central heating or air-conditioning systems, pipes
or ducts, elevators, escalators installed in a building, paved parking areas, roads, wharves and
docks, bridges, and sewage lines.
(6) Reasonable Retainage shall mean an amount, riot to exceed five percent of
(i) Available Construction Proceeds as of the end of the two-year expenditure schedule (in the case
of the two-year exception to the Rebate Requirement) or (ii) Net Sale Proceeds as of the end of the
18-month expenditure schedule (in the case of the 18-month exception to the Rebate Requirement),
that is retained for reasonable business purposes relating to the property financed with the issue.
For example, a Reasonable Retainage may include a retention to ensure or promote compliance with
a construction contract in circumstances in which the retained amount is not. yet, payable, or in
which theissuerreasonably determines that a dispute exists regarding completion or._payment.:.:
Appendix I-5
(7) Specially Developed Computer Software shall mean any programs or routines used
to cause a computer to perform a desired task or set of tasks, and the documentation required to
describe and maintain those programs, provided that the software is specially developed and is
functionally related and subordinate to Real Property or other Constructed Personal Property.
(8) Tangible Personal Property shall mean any tangible personal other than Real
Property, including interests in tangible personal property. For example, Tangible Personal
Property includes machinery that is not a structural component of a building, subway cars, fire
trucks, automobiles, office equipment, testing equipment, and furnishings.
(i) Special Rules Relating to Refundings.
(1) Transferred Proceeds. In the event that a prior issue that might otherwise qualify for
one of the spending exceptions is refunded, then for purposes of applying the spending exceptions
to the prior issue, proceeds of the prior issue that become transferred proceeds of the refunding
issue continue to be treated as unspent proceeds of the prior issue; if such unspent proceeds satisfy
the requirements of one of the spending exceptions then they are not subject to rebate either as
proceeds of the prior issue or of the refunding issue. Generally, the only spending exception
applicable to refunding issues is the six-month exception. In applying the six-month exception to a
refunding of a prior issue, only transferred proceeds of the refunding issue from a taxable prior
issue and other amounts excluded from the definition of gross proceeds of the prior issue under the
special definition of gross proceeds contained in section (b) above are treated as gross proceeds of
the refunding issue and so are subject to the six-month exception applicable to the refunding issue.
(2) Series of Refundings. In the event that an issuer undertakes a series of refundings for
a principal purpose of exploiting the difference between taxable and tax-exempt interest rates, the
six-month spending exception is measured for all issues in the series commencing on the date the
first bond of the series is issued.
(j) Elections Applicable to Pool Bonds. An issuer of a pooled financing issue can elect to
apply the spending exceptions separately to each loan from the date such loan is made or, if earlier,
on the date on year after the date the pool bonds are issued. In the event this election is made, no
spending exceptions are available and the normal Rebate Requirement applies to Gross Proceeds
prior to he date on which the applicable spending periods begin. In the event this election is made,
the issuer may also elect to make all elections applicable to the two-year spending exception,
described in section (g) above, separately for each loan; any such elections that must ordinarily be
made, prior to the issue date must then be made by the issuer before the earlier of the date the loan
is made or one year after the issue date.
Appendix I-6 .