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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. _2- Miami Ballpark Parkins Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parkins 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. Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking 1.1.26 "Fiscal Year" shall mean the twelve (12) month period commencing on the first (1st) day of October of every year and ending on the thirtieth (30th) day of September of the year immediately succeeding. For purposes of identification during the ordinary course of operations, and other documents as may be required by this Agreement, a specific Fiscal Year shall be identified as follows: either (1) "Fiscal Year x," where "x" equals the year in which the Fiscal Year ends; or (2) "Fiscal Year 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. -4- Miami Ballpark Parking_ Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parkin 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. -s- Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities > Asset Management> Real Estate> Miami Ballpark Parking 1.1.53 "Parking Fee" shall mean the fee paid by Persons for the use of the Parking Facilities, excluding those Persons whose use is related to MLB Events pursuant to Sections 6.1 and 6.2 of the City Parking Agreement. 1.1.54 "Parking OEM" shall mean those Generally Reimbursable Expenses necessary for the operation and maintenance of the Parking Facilities after giving effect to Sections 4.1 and 4.2. 1.1.55 "Parking Surcharge" shall mean the eighty (80%) percent portion of the total funds derived from the fifteen (15%) percent surcharge to be charged on fees charged by, or imputed on, the Stadium Operator for the use of the Parking Facilities pursuant to Sections 6.1 and 6.2 of the City Parking Agreement. 1.1.56 "Person" shall mean any natural person, firm, partnership, association, corporation, limited liability company, trust, public body, authority, governmental unit or other entity. 1.1.57 "Pledged Revenue" shall mean CDT Receipts, Event Parking Fee, and Parking Surcharge, collectively. 1.1.58 "Private Drives" shall have the meaning ascribed to it in Section 4.1.4. 1.1.59 "Property" shall mean the properties, including the Facilities and other improvements thereon, located in the county of Miami -Dade, state of Florida, as more particularly described in Exhibit "A." 1.1.60 "Receipt" shall have the meaning ascribed to it in Section 9.2. 1.1.61 "Retail Facilities" shall mean those spaces located within structured parking facilities P1, P2, and P3 designated for 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. 6 Miami Ballpark Parking. Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking 1.1.67 "Revenue Control Device" shall mean any mechanical or electronic equipment installed for purposes of recording -and controlling the entrances to, and exits from, the Parking Facilities, which equipment shall include, but not be limited to: loop detectors, treadles, gate arms, automated ticket dispensers and pay stations, cash registers, etc. 1.1.68 "Revenue Fund" shall have the meaning ascribed to it in Section 6.2. 1.1.69 "Risk Manager" shall mean the director of the Department of Risk Management of the City of Miami, Florida, or his/her designee. 1.1.70 "Stadium Operating Agreement" shall mean that certain Operating Agreement dated April 15; 2009 by and between the City, Miami -Dade County and Marlins Stadium Operator, LLC, a copy of which is available at the Office of the City Clerk, 3500 Pan American Drive, Miami, Florida. 1.1.71 "Stadium Operator" shall have the meaning ascribed to it in the City Parking Agreement. 1.1.72 "Statement of Use" shall mean a statement detailing those Combined Expenses paid by the MPA where the funding source used was, in whole or in part, Operating Reserve. 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." -7- Miami Ballpark Parkine Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Asset Manaeement> Real Estate> Miami Ballpark Parkine 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 -8- Miami Ballpark Parking Facilities lnter'ocal Cooperation & Lease Agreement Public Facilities> Asset Management > Real Estate> Miami Ballpark Parking 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,,.:.... -9- Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Asset Management > Real Estate> Miami Ballpark Parking 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. - 10 - Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking 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. -rr- Miami Ballpark Parkine Facilities Interlocal Cooperation & Lease Agreement Public Facilities > Asset Management > Real Estate > Miami Ballpark Parkine 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. - 12 - Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities > Asset Management > Real Estate > Miami Ballpark Parking 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: - 13 - Miami Ballpark Parking. Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking 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. -14 Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities > Asset Management > Real Estate > Miami Ballpark Parking 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. . . - 15 - Miami Ballpark Parking Facilities Interlocal Cooperation S Lease Agreement Public Facilities > Asset Management> Rea] Estate> Miami Ballpark Parking 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. - 16- Miami Ballpark Parking Facilities Inter'ocal Cooperation & Lease Agreement Public Facilities > Asset Management > Real Estate > Miami Ballpark Parking 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.- - 17 Miami Ballpark Parking Facilities Interloca] Cooperation & Lease Agreement Public Facilities > Asset Management > Real Estate > Miami Ballpark Parking 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. -Ig- Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities > Asset Management > Real Estate > Miami Ballpark Parking 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 19 - Miami Ballpark Parking Facilities Interlocal Cooperation R. Lease Agreement Public Facilities> Asset Management > Real Estate> Miami Ballpark Parking 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 20 - Miami Ballpark Parking Facilities Interloca] Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking 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. - 21 - Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities > Asset Management > Real Estate > Miami Ballpark Parking 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 22 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: -23- Miami Ballpark Parking Facilities Inter'ocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking 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 -24- Miami Ballpark Parking Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking 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. - 25 - Miami Ballpark Parking. Facilities Interlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking 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] - 26 - Miami Ballpark Parking Facilities lnterlocal Cooperation & Lease Agreement Public Facilities> Asset Management> Real Estate> Miami Ballpark Parking IN WITNESS WHEREOF, in consideration of the mutual entry into this Agreement, for other good and valuable consideration, and intending to be legally bound, the Parties have executed this Agreement as of the date first above written. DEPARTMENT OF OFF-STREET PARKING of the City of Miami, an 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 - 27 - Miami Ballpark Parking Facilities 1nterlocal Cooperation & Lease Agreement Public Facilities > Asset Management > Real Estate > Miami Ballpark Parking 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 Sr-I'''''II""I-.11;': III'. ir,--- ...-"'-r; ; ..,-..''''''--::"'''-'" ''...i. s':,-,'...'.'"'"'--....'''"'r,,..F''''',..t.',.. '..Y'!' 7..........."...".9'.......:i7/,'',,-,.:!...:nn.,nn...".'... !."...,,T -: .,.;'...-. n nn . :,:- , ' 'n-• 'I 1 " • -rriVI-1 'MTMITTITillTlIttru:ilmr111111, I / i ; I .1 I )1!7M , - , • • ' (77 ;I • ;3. 4:114gOaLl 211 • I I I : • ,• suRFACE LOT W-2 I I I 161014W 0THST : 4 . . . • 'N ; I.. I Pi I I I I : 1•I' I I.' III" :•I; ' . , SJ,LRFACLC6T . . . . iSso NW 5TH ST I I I." I • • I • • ; : I -I • • EXISTING BASEBALL FIELD • ,;;!-T•r.: - rr1-. I NW 6111 ST , • . irrtni-rmirrtrfril nrmin-rt-rtrrnTiTurrirry r . . -71,1"77-1,171-1- BASEBALL STADIUM 7.471T4%1T19Z1 .,..... . . '61:a*Rtet05tififOre.rfill: • racillTrn-11-11T1ITIITInitrrint-n '`• . 1:::::-.:-..--i.._.-,_...,_:__-_:,-.;r11, .::::::•,,.1, 17.7.=:I..2-;,::Lni.: • .• • . . • : • . : . • . , • i . I ; I ]; •• • ... ...; . ; • . • , ! ' I I :•• I n I In; •;.; ;;.• ti \ : •.• ! -1350 NIN 4111.ST • " OVERALL SITE PLAN rroworrt I'Iz•,•t.4., STADIUM SITE PARKINc: II•III.II,V',IIII;'-' II CITY OT NIIAN11 H-316,1a LED A DALY r.iltitwon Prmcs Bit 1'ENA.11t SET Imida Al, 1,1,1 AS1111.111, A0.0 I NW 7TH STREET Trrrn:\,, 1. • NVV 61-1-1 STREET • 1 • ; ! 11.1 ii• • • 1 I 1 ! I I • ! • ; I PROVIDE Rum LIARPIEFI 9,91E1119100F 99 1W AND 11ENIEVALILE 11000 091,1E11 PANEL, 91 OCCUI•1991E sre.r.E.SM.3111,919,99 11101119.1E0 11191 f•RE BEI 2011E11ED TENLARG!D SITE PLAN -PI PARKING GARAGE P1 PARKING STALL TABULATION 11414D199, ACC9.9.19DIE vnu AccrssMIS 99V 729 lEVE1. 1 EvEl 797 7+7 LEVEL 5 19+ 159 IS 195 SIALNU'vl 511E PARKING CITY Of MIAMI Lep ADAY 7._ 991 1.1.919 777 PERMIT SET 11vida 1199!..1.99.1.90.1, A0.02 2 5 ! I. • t 19 • . 14.19.9395 •1399919944991E9. 1=7097.' PIDICArES F30011 rntko BARRIE91.4.91Eri. _ NW 7711 STREET _......t...... -„,„, • Ill ?-0.---n- 0 0 0 0 ., 0 ` 4,2 " 1'1 J 1 IT-iilfd-11-11-1-- -nlirk- _ _ . IgY=IT - '''' .4.:''''!-4":'-''''''''•"" 933 .1 H 1 1 I LI 1 1 1 .1 1117_ 0 77-7 r...-3'N , ! ).i ..S . ' 3.4W 4 --I . i 1 i'l . 1, -,,--1- ..„,.:_,..1.. ,,. . . • ‘ z: .,• ,T1 i,.,i .,.. t .• !j 1-1--1--- 1-1- 1 0 0 0 • II a 43 u 11—, / -3\ 4 : !7.777 •,7,3 ;7", ,,,, ,,,,7.7. 7".3- ---: rti 1 7 1 1 1 , ,,:;7/ 3__Z;.ZZ/3. 3;2671 443 Z/3,3•7:;</a:Y //Z. 4:3YEZ .;.• -9 •:-. 9 4 --, cfIX-fr\Xf\Tf\--tl\ tO 31\ ti\ tI\ 2\ 4\ , \ _._ .! I ,• li , 3-= I ...1 . STREET ( • . 1 I i . 1 ' • , i . , , ..... . I i ! I It ! i ,, .• .:.? . i 1 ! ! I t 1 • I. , ti 1\ ..:,........ l'' cfeloy:lpED SITE PLAN - P2 PARKING GAIIAGE6 • r919VIDE 93000 34/4PRIE9 1.991E11913013r1443 33910.1 11E91099.941,11.0031999.904 r OCCIEWI E 5349CES IN 141.1, 11301C44.1ED 11191 /4119 mow 3011E 99.9 ----7-1 i . . • • I :• I .1! I , 2 PARK ING STA 1,414014499 /44949,919, LL TAB 9/414 Accf.snriv E ULATIO N 1019113 rtV 43 271 311 131 3F4.131.1 323 749 10493.9 2D 194 s rADILINI SIZE PARKING CITY En, MIAMI 7-716411 LEI) A DALY iuff'-s, • 033E3. Elf 14131% 14, ..... ....... 411314434. FLAN ,1111.14,1mk. PERMIT SET A0.03 • • ;'Z'...It';`,,I'.;;;;;.,7....7 • : .. • .: r,. , --...,. • . ; - . ,.., , „.,,.....,..,, ,,.. . • ... .:. ',... '' :I.I...:-: .1 1 .......... ,.......‘.:, \ ... .1 • . ;.12n.',.!...: . I ; :':' • I. . I • 1 : I, , . I • • . Ii....... ;.il ': . -,. I. :;; • I,. • -, 7.-7_77;W77-='- ' 4.3 • r; 14, : . • . • • I . —.i—I--'..•-,7'.=-z.,•------1° - MO" 1 rmqH . . ....... . . . . . . . . NVV 3RD ST IL1 1 •- BEIWWWILBI'LLIOU WOMB, MBAS AT OCCUPIABLE SPACES MOW MEWS 11101,0 ED LI ol APE BELOW b011E AE-B RILRGE0 SITE PIAN -P3 PARKING GARAGE " P 3 PARI ING STA ACCESSIBLE SINILLAILD LL TAB ULATIO rEs. BCC=IBLV N 2,4 74/ .2" 164 Abi suf. PARKING CITY or MIAMI 13-30618 LEDA DALY 1001% I A r.WLEL.I. kr PI ..V.A ..,;•;,7,111' Ilif eLLI • PERM; T 61.1 AB 09,1-11, . .. A0.0z1 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 8 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. 9 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 1l (o) providing the Stadium Operator Representative and the County representative quarterly progress reports of the status of the City Parking Project through each design phase and the construction of the Parking Facilities. 4.5 Project Costs. The City shall pay all costs and expenses for the design, 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 12 representatives have under this Section 4.7 shall not be. the basis for any liability to accrue to them from the City or any other Persons for such monitoring.or investigation or for the failure to • have conducted such monitoring or investigation. • 4.8 Number of Spaces. • The City shall have the right to (a) replace spaces in Parking Structures with spaces in Surface Lots on the City Parking. Site; (b) reduce the number of spaces in the Parking Facilities to approximately 5,700; and/or (c) re]ocate.the Surface Lots or any • parking spaces to be located within Surface Lots to other surface lots located outside of the City . Parking Site that 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; 13 (c) procuring and entering into contracts for the furnishing of .all utilities, equipment, services and supplies necessary for the operation of the Parking Facilities; (d) performing, or causing to be performed, all maintenance and repairs in accordance with Section 5.4; (e) maintaining or causing to be maintained all necessary, licenses, permits and authorizations for the operation of the Parking Facilities; and (f) operating the Parking Facilities in accordance with Applicable Law, the Operating Standard attached hereto as Exhibit C (the "Operating Standard") and this Agreement. 5.2 Revenues. Except as provided in Article VI with respect to Stadium Events, the City shall have the exclusive right to establish prices for, and to collect and retain, all parking fees in the Parking Facilities. 5.3 Expenses. Except as expressly provided in Sections 6.1, 6.3(d) and 6.3(e), the City shall be responsible for the payment of all expenses and taxes relating to the Parking Premises and the ownership, use and operation thereof, including expenses and taxes arising from or related to maintenance, repairs, insurance, utilities, event personnel, security and cleaning services. 5.4 Maintenance and 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. 14 5.5 Insurance. The City shall obtain and maintain, or shall cause to be obtained and maintained, the insurance coverage for the periods of time during the 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 15 their respective employees, guests, licensees and patrons, shall have prior and exclusive use of all of the spaces in the Parking Facilities for all MLB Events, and (ii) the Team Affiliates and/or the sponsors or promoters of Other Events, as applicable; and their respective employees, guests, licensees and patrons, shall have prior- and exclusive use of as many spaces in the Parking Facilities as are projected to be needed and have been .reserved for such Other Events by the applicable Team Affiliate, sponsor or promoter in accordance with Section 6.2(b) below. All parking made available for MLB Events and Other Events hereunder shall be made available from two (2) hours prior to through at least two (2) hours following each such event. (b) The Stadium Operator shall notify the City or the Parking Manager in writing of the MLB Reserved Dates for each Operating Year no later than ten (10) Business Days after the Team's schedule is finalized for that Operating Year. If'the Stadium Operator wishes to reserve the Parking Facility for any other Stadium Event; it shall deliver to the City or the Parking Manager a written notice setting forth the date of such proposed Stadium Event at least fourteen (14) days before contractually committing to the proposed Stadium Event. Such notice shall be given in good faith and shall identify in reasonable detail the nature of the Stadium Event, the start time for such Stadium Event, the projected number of parking spaces and portions of the Parking Facilities that are projected to be used, any special security or other staffing arrangements that are anticipated, and any other information reasonably necessary for the City to perform its duties under this Agreement. The Stadium Operator shall promptly notify the City or the Parking Manager if the scheduled date or start time of a Stadium Event is changed; provided, however, no such notice 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: 16 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 19 all such Signage or other advertising sold by the Team Affiliates. Except as provided in Sections 6.6(d) below, the City shall not sell, authorize or permit any Signage or advertising in the Parking Premises. Notwithstanding anything to the contrary in this Agreement, no Signage shall promote tobacco, adult 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. 20 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 21 hundred eighty (180) days following the giving of the original notice if within forty (40) days after such written notice the County commences and thereafter diligently pursues the cure. 8.3 Remedies. (a) Subject to complying with Article X with respect to matters that must be resolved by arbitration or Expedited ADR, as applicable, the Government Parties may institute litigation to recover damages or to obtain any other remedy at law or in equity (including specific performance, permanent, preliminary or temporary injunctive relief, and any other kind of equitable remedy) for any Stadium Operator Default. (b) Subject to complying with Article X with respect to matters that must be resolved by arbitration or Expedited ADR, .as_ applicable, the .Stadium Operator may institute litigation to recover damages or to obtain any other remedy at law or in equity (including specific performance, permanent, preliminary or temporary injunctive relief, and any other kind of equitable remedy) for any City Default or County Default. (c) Except with respect to rights and remedies expressly declared to be exclusive in this Agreement or the other Stadium Agreements, the rights and remedies of the Parties are cumulative and the exercise by any Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same Default or any other Default. (d) Any failure of a Party to exercise any right or remedy as provided in this Agreement shall not be deemed a waiver by that Party of any claim for damages it may have by reason of the Default. (e) Notwithstanding anything to the contrary in this Agreement, the County may only provide a notice of default and exercise remedies with respect to a breach by another Party of a County Provision. Notwithstanding anything to the contrary in this Agreement or the other Stadium Agreements, so long as the County continues to perform its obligations under the Interlocal Agreement between the County and the City, relating to the disposition of Convention Development Tax receipts for the Ballpark project (the "CDT Interlocal") even while in -default under this Agreement, any recovery of damages by the City against the County under this Agreement shall be offset by any amounts the County is obligated to remit to the City pursuant to the CDT Interlocal. Alternatively, if the City elects to recover and is awarded damages against the County which include the amount the County is obligated to remit to the City pursuant to the CDT Interlocal, the County shall be relieved of its funding obligations under the CDT Interlocal as of the judgment date. Such proceeds from the recovery of damages shall be used for the repayment of any outstanding Parking Facility bonds issued to fund the Parking Facilities. 8.4 Self-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. City of Miami Page 4 of 43 File Id; 09-01150b (Version 2) Printed On: 6/3012010 "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 Page 5 of 43 File id: 09-01150b (Version 2) Printed On: 6/3012010 • "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 Page 7 of 43 File Id: 08-01150b (Version 2) Printed On: 6/30/2010 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. City of Miami Page 8 of 43 File Id: 09-01150b (Version 2) Printed On: 6/30/2010 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. City of Miami Page 9 of 43 File Id: 09-01150b (Version 2) Printed On: 6/30/2010 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 Page 10 of 43 File Id: 09-01150b (Version 2) Printed On: 6/30/2010 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 City of Miami Page 11 of 43 File Id: 09-01150b (Version 2) Printed On: 6130/2010 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. City of Miami Page 12 of 43 File Id: 09-01150b (Version 2) Printed On: 6/30/2010 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. City of Miami Page 13 of 43 File Id: 09-01150b (Version 2) Printed On: 6/30/2010 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 City of Miami Page 14 of 43 File Id: 09-01150b (Version 2) Printed On: 6/30/2010 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 Page 16 of 43 File Id: 09-01150b (Version 2) Printed On: 6/30/2010 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 Page 18 of 43 File Id: 09-01150b (Version 2) Printed On: 6/30/2010 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 Page 20 of 43 File id: 09-01150b (Version 2) Printed On:.6130/2010 [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 Page 21 of 43 File Id: 09-01150b (Version 2) Printed On: 6/30/2010 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 Page 24 of 43 File Id: 09-01150b (Version 2) Printed On: 6/30/2010 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 City of Miami Page 30 of 43 File Id: 09-01150b (Version 2) Printed On: 6/30/2010 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.. .., City of Miami Page 31 of 43 File Id: 09-01150b (Version 2) Printed On: 613012010 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. City of Miami Page 32 of 43 File Id: 09-01150b (Version 2) Printed On: 6/30/2010 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. City of Miami Page 33 of 43 File Id: 09-01150b (Version 2) Printed On: 6(30/2010 (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 City of Miami Page 34 of 43 File id: 09-01150b (Version 2) Printed On: 6/30/2010 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 City of Miami Page 35 of 43 File Id: 09-01150b (Version 2) Printed On: 6/30/2010 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.... . City of Miami Page 36 of 43 File Id: 09-01150b (Version 2) Printed On: 6/30/2010 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 City of Miami Page 37 of 43 File Id: 09-01150b (Version 2) Printed On: 6/30/2010 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. City of Miami Page 38 of 43 File Id: 09-01150b (Version 2) Printed On: 6/30/2010 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. City of Miami Page 39 of 43 File Id: 09-01150b (Version 2) Printed On: 6/30/2010 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 City of Miami Page 40 of 43 File Id: 09-01150b (Version 2) Printed On: 6/30/2010 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 A-1 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. C-2 "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 C-5 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. C-6 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, C-7 (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 C-8 (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. C-9 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 .