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HomeMy WebLinkAboutBack-Up Documents - Non Relocation AgreementUpdated Version 1/27/22 NON -RELOCATION AGREEMENT This Non -Relocation Agreement (this "Agreement") is made and entered into as of this [ ] day of [ ], 20 (the "Execution Date") by and between the (i) CITY OF MIAMI, a municipal corporation of the State of Florida, having its principal office and place of business at 3500 Pan American Drive, Miami, Florida 33133 (the "City"), (ii) INTER MIAMI CF, LLC, a Delaware limited liability company, having its principal office and place of business at [ ] ("IMCF"), and (iii) MIAMI FREEDOM PARK, LLC, a Delaware limited liability company ("MEP"), but only for purposes of Sections 5, 6, 8 through 10 and 12 through 18 of this Agreement. The City and IMCF shall be referred to herein collectively as the "Parties" and each, individually, as a "Party". RECITALS WHEREAS, IMCF holds the rights to operate the MLS (as defined below) team known as Inter Miami CF ("Team") pursuant to the MLS Operating Agreement (the "Team Rights"); and WHEREAS, the City is the owner of a certain parcel of real property commonly known as the Melreese Country Club (the "Parent Tract"); and WHEREAS, in an effort to seek greater public use of the Parent Tract, to derive additional revenue from the existing commercial uses on the Parent Tract, to generate tax revenues from the uses on the Parent Tract, and to stimulate economic activity in the City, the City has agreed to permit MFP to re -develop portions of the Parent Tract, subject to and in accordance with the terms of the Lease Agreements; and WHEREAS, the redevelopment of the Parent Tract will consist of constructing a soccer stadium, ancillary development thereto, commercial development and a public park, all as more particularly described in the Lease Agreements, on separate portions of the Parent Tract; and WHEREAS, in furtherance thereof and contemporaneously with the execution of this Agreement, (i) MFP and the City have entered into that certain Ground Lease for Soccer Stadium (the "Stadium Lease") pursuant to which the City shall lease that certain property as described therein (the "Stadium Property") to MFP and MFP will construct, develop, operate, maintain, and manage the soccer stadium built thereon (the "Stadium"), (ii) the City, MFP, and Inter Miami Stadium, LLC, a Delaware limited liability company ("IMS") have entered into that certain Construction Administration Agreement (the "Construction Administration Agreement"), pursuant to which IMS shall design, develop and construct the Stadium and MFP shall design, develop and construct the ancillary development portion of the Parent Tract (the "Commercial Development"), and (iii) the City and MFP have entered into that certain Commercial Development Ground Lease (the "Commercial Lease"), pursuant to which the City shall lease that certain property as described therein to MFP (the "Commercial Property"); and WHEREAS, MFP intends to sublease to IMS the Stadium Property pursuant to the Sublease and thereby IMS will operate, maintain and manage the Stadium; and WHEREAS, the Team desires to play its Home Matches at the Stadium; and WHEREAS, on July 18, 2018, the City Commission passed Resolution R-18-0309, authorizing the City Attorney to prepare an amendment to the Charter for consideration at the election scheduled for November 6, 2018, proposing to amend the Charter to authorize the City Commission to waive competitive bidding and by a four -fifths (4/5th) affirmative vote lease the Parent Tract to MFP ("Charter Amendment"); and WHEREAS, on November 6, 2018, the City's residents approved, by public referendum, the Charter Amendment; and WHEREAS, as a material inducement to the City to enter into the Lease Agreements, (x) IMCF has agreed to enter into this Agreement to assure that the Team will play substantially all of its Home Matches at the Stadium during the Non -Relocation Term on the terms and conditions set forth herein and (y) MFP has agreed to enter into this Agreement in order to fulfill the obligation of IMCF to pay the Liquidated Damages to the City if required pursuant to Section 5.3; NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained in this Agreement and other good and valuable consideration, including $100.00 paid on the date hereof from IMCF to the City, the receipt and sufficiency of which are hereby acknowledged, the Parties (and MFP, but only for purposes of the sections set forth above), intending to be legally bound, hereby agree as follows: 1. Definitions. "Affiliates" shall mean, for any Person, any other Person that such Person controls. "Agreement" shall have the meaning set forth in the preamble. "Alternate Site Condition" shall mean the existence of any one of the following conditions: i. an Untenantable Condition that exists or is reasonably expected to exist at the time of any scheduled Home Match; ii. Casualty; or iii. a Governmental Authority determines the use or occupancy of any material portion of the Stadium is (a) not permitted under any Applicable Law or (b) unsafe for customary usage. "Applicable Law(s)" shall mean all applicable laws, ordinance, rules, regulations, authorizations, orders and requirements of all federal, state, City and municipal governments, the departments, bureaus or commissions thereof, or any other body or bodies exercising similar functions having or acquiring jurisdiction over all or any part of the Stadium Property. "Bankruptcy Code" shall have the meaning set forth in Section 5.2.3. "Casualty" means any material damage or destruction of the Stadium or of any material part thereof caused by fire, hurricane, or other occurrence. 2 "Charter Amendment" shall have the meaning set forth in the recitals. "City" shall have the meaning set forth in the preamble. "City Attorney" shall mean Victoria Mendez or her successor as City Attorney of the City of Miami, Florida. "City Commission" shall mean the City Commission of the City of Miami, Florida. "City Manager" shall mean Arthur Noriega or his successor as City Manager of the City of Miami, Florida. "Commencement Date" shall mean the date that the Stadium is granted a certificate of occupancy. "Commercial Development" shall have the meaning set forth in the recitals. "Commercial Lease" shall have the meaning set forth in the recitals. "Commercial Property" shall have the meaning set forth in the recitals. "Construction Administration Agreement" shall have the meaning set forth in the recitals. "Execution Date" shall have the meaning set forth in the preamble. "Final Notice" shall have the meaning set forth in Section 5.5.1. "Final Order" shall mean when a court of competent jurisdiction determines, in a final and non -appealable order, that IMCF has breached its covenants under Section 2 of this Agreement. "Governmental Authority" shall mean all federal, state, county and municipal governments, the departments, instrumentalities, agencies, bureaus or commissions thereof, or any other body or bodies exercising similar functions having or acquiring jurisdiction over all or any part of the Stadium Property. "Home Matches" shall mean MLS regular season and postseason games and Local Matches, in each case, played by Team for which Team has been designated (under MLS Rules and Regulations) as the "home team", but shall exclude (i) any game for which the Team is designated under MLS Rules and Regulations as the "home team" and that occurs within a tournament format hosted at a pre -determined site that is either (A) outside of the Team's home territory or (B) if inside Team's home territory, has seating capacity that can accommodate more than 50,000 patrons, provided, however, that there may be no more than one (1) such tournament per Season under this clause (i)(B), provided that no such tournament in this clause (i) shall be an MLS regular season or post -season game; (ii) any other MLS regular season or post -season games which MLS directs be played at a neutral location, provided, however, that there may be no more than two (2) such games per Season under this clause (ii), (iii) games which the MLS directs be 3 played at a location other than the Stadium due to the existence of force majeure circumstances which prevent games from being played at the Stadium, (iv) up to the greater of (x) five (5) or (y) thirty-three percent (33%) of the Team's Local Matches in any Season which IMCF reasonably determines are likely to draw an attendance of greater than 6,250 patrons, (v) up to the greater of (x) four (4) or (y) seventy-five percent (75%) of the Team's Local Matches in any Season which IMCF reasonably determines are likely to draw an attendance of 6,250 patrons or fewer, and (vi) any MLS Cup match or other match that determines the MLS champion for any Season which MLS directs be played at a neutral location. Any additional games of the type described in clause (ii), (iv) or (v) beyond the limits prescribed under clause (ii), (iv) or (v), as applicable, may be excluded from the definition of "Home Matches" by IMCF, subject to the City's reasonable approval, not to be unreasonably withheld, conditioned or delayed. "Government Indemnitees" shall have the meaning set forth in Section 11. "IMCF" shall have the meaning set forth in the preamble. "IMCF Transferee" shall have the meaning set forth in Section 9.1. "IMS" shall have the meaning set forth in the recitals. "Lease Agreements" shall mean, collectively, this Agreement, the Commercial Lease, the Stadium Lease, the Sublease, the Construction Administration Agreement, and any other agreements deemed necessary by the Parties and MFP to memorialize the terms and conditions set forth in these agreements. "Liquidated Damages" shall mean an amount equal to, (i) from the Commencement Date until the fifth (5th) anniversary of the Commencement Date, $20,000,000, (ii) from the fifth (5th) anniversary of the Commencement Date until the tenth (10th) anniversary of the Commencement Date, $12,000,000, (iii) from the tenth (10th) anniversary of the Commencement Date until the fifteenth (15t') anniversary of the Commencement Date, $10,000,000, (iv) from the fifteenth (15th) anniversary of the Commencement Date until the twentieth (20th) anniversary of the Commencement Date, $6,000,000, (v) from the twentieth (20th) anniversary of the Commencement Date until the twenty-fifth (25th) anniversary of the Commencement Date, $3,000,000, and (vi) from the twenty-fifth (25th) anniversary of the Commencement Date until the end of the Non -Relocation Term, $3,000,000. The Parties acknowledge that they have negotiated the amount of the Liquidated Damages in an attempt to make a good faith effort in quantifying the amount of damages incurred by the City due to a Non -Relocation Default because the Parties determined that such damages are not readily ascertainable and, therefore are stipulated. In stipulating such amount, the Parties have considered numerous factors, including without limitation, the following: (i) the substantial time and expense of the public in securing the Team's commitment to play the Home Matches at the Stadium for the Non -Relocation Term; (ii) the possible reduction in value and marketability of the Stadium and surrounding development arising from the absence of the Team; (iii) the reputational and other detrimental effects of a Non - Relocation Default on the City of Miami community; and (iv) the loss of alternative development opportunities within the Stadium Property and Commercial Property. 4 "Local Matches" shall mean soccer games played by Team in Team's home territory for which Team markets and sells tickets to patrons and for which the Team has been designated as the "home team," but excluding all MLS regular season and postseason games. "Losses" shall have the meaning set forth in Section 11. "MFP" shall have the meaning set forth in the preamble. "MLS" shall mean Major League Soccer, L.L.C., a Delaware limited liability company. "MLS Governing Documents" shall mean (i) the limited liability company agreement of MLS, (ii) the MLS Operating Agreement and (iii) the MLS constitution, in each case in clauses (i)-(iii), as in effect from time to time and any amendments, supplements or other modifications thereto and all replacement or successor documents thereto that may in the future be entered into. "MLS Operating Agreement" shall mean the MLS Team Operating Agreement dated as of August 21, 2018 between MLS and IMCF (as assignee of Miami Beckham United, LLC) as in effect from time to time and any amendments, supplements or other modifications thereto and all replacement or successor documents thereto that may in the future be entered into. "MLS Rules and Regulations" shall mean (x) the MLS Governing Documents, (y) any present or future agreements or arrangements entered into by, or on behalf of MLS, including, without limitation, agreements or arrangements entered into pursuant to the MLS Governing Documents, and (z) the present and future written and adopted or approved mandates, rules, regulations, policies, practices, bulletins, by-laws, directives or guidelines issued or adopted by, or behalf of, MLS as in effect from time to time, in each case in clauses (x)-(z), as in effect from time to time and any amendments, supplements or other modifications thereto and all replacement or successor documents thereto that may in the future be entered into. "Non -Relocation Default" shall mean any breach by IMCF of any of the terms, covenants or agreements of Section 2 of this Agreement. "Non -Relocation Covenants" shall mean the collective covenants made by, and obligations imposed on, IMCF pursuant to Section 2 of this Agreement. "Non -Relocation Term" shall mean the term of this Agreement, which shall run for thirty (30) years from the Commencement Date, subject to the termination of this Agreement pursuant to Section 5.5 of this Agreement. "Parent Tract" shall have the meaning set forth in the recitals. "Party" shall have the meaning set forth in the preamble. "Person" shall mean any individual, corporation, partnership, joint venture, limited liability company, estate, trust, unincorporated association, any Governmental Authority, and any fiduciary acting in such capacity on behalf of any of the foregoing. "Personnel" shall have the meaning set forth in Section 13. 5 "Proposed Date" shall have the meaning set forth in Section 4.2. "Recitals" shall mean those terms which give relevant facts or information pertaining to this Agreement and appear in the first two pages. The Recitals are deemed as being incorporated by reference in this Agreement. Recitals has the same meaning as preamble for purposes of this Agreement. "Season" shall mean a period of time coextensive with the MLS season as established from time -to -time under MLS Rules and Regulations. "Stadium" shall have the meaning set forth in the recitals. "Stadium Agreements" shall mean, collectively, this Agreement, the Stadium Lease, the Sublease, and the Construction Administration Agreement. "Stadium Lease" shall have the meaning set forth in the recitals. "Stadium Property" shall have the meaning set forth in the recitals. "Team" shall have the meaning set forth in the recitals. "Team Rights" shall have the meaning set forth in the recitals. "Untenantable Condition" means the existence of any one of the following conditions, but only to the extent the same is not the result of the willful misconduct of IMCF: (a) The condition of the Stadium or any material portion thereof is or may be such that MLS determines that the playing of Home Match is not permitted at such location under the MLS Rules and Regulations that are generally applicable to other similar MLS facilities; or (b) The condition of the Stadium or any material portion thereof does not reasonably permit it to be used, occupied or exploited by IMCF in connection with Home Matches; or (c) The use or occupancy of the Stadium or any material portion thereof for a Home Match is not permitted under Applicable Laws or is restricted in any material respect under Applicable Laws or otherwise, including, but not limited to, denial of access. Any capitalized term not otherwise defined herein shall have the meaning ascribed to it in the Stadium Lease, unless such term is not defined therein, in which case it shall have the meaning ascribed to it in the Commercial Lease. 2. Covenant to Play at the Stadium. Subject to Section 3 of this Agreement, IMCF covenants and agrees that commencing on the Commencement Date and throughout the remainder of the Non -Relocation Term, as applicable: 6 2.1 IMCF shall maintain and use the Stadium as permitted in the Stadium Lease, including for operations related to Stadium Events, Team ticket and sponsorship sales, and a Team store; 2.2 the Team shall play all of its Home Matches at the Stadium (subject to the exceptions set forth in the definition of Home Matches and in Section 3); and 2.3 Subject to the exceptions set forth in the definition of Home Matches and in Section 3, IMCF (a) shall not enter into any contract or agreement, or make any request or application to MLS, to (i) violate Section 2.1 or (ii) have the Team play any Home Match in any location other than the Stadium in violation of Section 2.2; and (b) shall not (i) entertain any offer or proposal to relocate the Team's Home Matches to a location other than the Stadium, (ii) solicit an offer or proposal from any Person to enter into discussions regarding moving the Team's Home Matches to a location other than the Stadium, (iii) enter into negotiations with third parties concerning the relocation of the Team's Home Matches to a location other than the Stadium, or (iv) otherwise attempt to cause or entertain any offer of proposal to facilitate the playing of Home Matches at a location other than the Stadium, in each case in clauses (i)-(iv), in violation of Section 2.2. The prohibitions set forth in this Section 2 shall not apply to prospective applications, agreements, or discussions, if any such proposed game, move or relocation would not occur or take effect until after the Non -Relocation Term. The execution and delivery to the City of this Agreement is a condition precedent to the effectiveness of the City's obligations under the Lease Agreements. 3. Exceptions. 3.1 Notwithstanding the provisions of Section 2, the Team shall be permitted to play, and to enter into arrangements to permit the Team to play, what would otherwise be a Horne Match at a location other than the Stadium in the event of an Alternate Site Condition. 3.2 If a certificate of occupancy for the Stadium is not obtained until after the date on which one-half of the Team's scheduled MLS regular season Home Matches have been played in the then -current Season, the covenants in Section 2 shall not become effective until the start of the succeeding Season. 3.3 IMCF may take any actions otherwise prohibited by Sections 2.1, 2.2 and 2.3, in connection with any games played at another location that are permitted by this Section 3. 3.4 Without limiting the generality of any other provision of this Agreement, the covenants of IMCF provided in Section 2 shall not apply: (i) if IMCF obtains the City's written consent, which consent shall be within the sole and absolute discretion of the City, prior to any action(s) otherwise prohibited under such section; provided, however, any actions which would allow the Team to permanently relocate from the City shall be subject to any MLS approvals that may then be required under the MLS Rules and Regulations; and (ii) at any time after the termination of this Agreement. 7 4. Alternate Site Condition. 4.1 Notwithstanding the provisions of Section 2, if, at any time during the Non - Relocation Term, an Alternate Site Condition shall exist, then (i) IMCF shall be entitled to make arrangements to have the Team temporarily play Home Matches at alternate sites in Miami -Dade County or Broward County and (ii) IMCF shall be temporarily relieved of its obligations under Sections 2.2 and 2_3 hereunder and shall be entitled to allow the Team to play its Home Matches at such alternate sites, but only during the period of time that any such Alternate Site Condition shall exist; provided, however, that if the Alternate Site Condition shall be of such a nature that its expected expiration cannot reasonably be ascertained by IMCF or the City, then IMCF shall be entitled to honor any commitment it might reasonably have made for the Team to play its Home Matches at an alternate site even if that commitment extends beyond the date such Alternate Site Condition ends. IMCF shall not, however, make any commitment that extends beyond the end of the Season in or prior to which such Alternate Site Condition occurs, provided, however, IMCF shall use its reasonable best efforts to cause the Team to play its Home Matches at the Stadium as soon as possible after the Alternate Site Condition has ended. 4.2 Within thirty (30) days of the commencement of an Alternate Site Condition, IMCF shall give the City a written notice setting forth the date it reasonably believes such Alternate Site Condition will terminate (the "Proposed Date"). If the City objects to the Proposed Date, the City and IMCF shall use good faith efforts to resolve such dispute within the next five (5) business days. In the event the Parties are unable to resolve such dispute by mutual agreement within such five (5) business day period, such dispute shall be resolved in accordance with Section 6. The City and IMCF shall consult, and reasonably cooperate, with one another following any Alternate Site Condition so that IMCF can most effectively find and contract for an alternate site during the duration of such Alternate Site Condition. 4.3 IMCF shall use reasonable best efforts to mitigate and overcome any Alternate Site Condition that results in the Team's Home Matches not being played at the Stadium to the extent such Alternate Site Condition is within the reasonable control of IMCF. 5. Remedies. 5.1 No Adequate Remedy. IMCF (a) acknowledges that the Non -Relocation Covenants are an essential part of the bargain and consideration of the Lease Agreements and are necessary to protect the business and goodwill of the City; (b) recognizes that the Stadium is being constructed on City land that is being granted exclusively for the building of the Stadium for the purpose of the Team playing its Home Matches thereon during the Non -Relocation Term to the extent required by this Agreement; (c) recognizes that having the Team play its Home Matches in the Stadium throughout the Non -Relocation Term to the extent required by this Agreement provides a unique value to City, including generating new jobs, additional revenue sources and economic development and increased tourism for the City; and (d) acknowledges and agree that any breach by IMCF of the Non -Relocation Covenants shall cause irreparable and continual harm to the City, and that damages for a default under such Non -Relocation Covenants cannot be estimated with any degree of certainty and that monetary damages cannot fairly or adequately compensate the City for a breach of such Non -Relocation Covenants. Further, the Parties acknowledge that (i) IMCF's obligations under the Non -Relocation Covenants are unique, are the 8 essence of the bargain and are essential consideration for this Agreement and the other agreements being entered into by the Parties related to the Stadium, including, but not limited to the Lease Agreements; and (ii) the determination of damages caused by a Non -Relocation Default, the effects of which would be suffered by the City and the community would be difficult, if not impossible, to ascertain. Therefore, the Parties acknowledge and agree that there exists no adequate and complete remedy at law to enforce this Agreement against IMCF and that equitable relief by way of specific performance or injunction is the only appropriate remedy for the enforcement of this Agreement, notwithstanding the provisions for Liquidated Damages provided in Section 5.3. 5.1.1 For the avoidance of doubt, MFP hereby covenants that it will not assert in any proceeding that the City has an adequate remedy at law for a breach of the Non - Relocation Covenants. 5.2 Declaratory or Injunctive Relief. 5.2.1 Upon the occurrence of a Non -Relocation Default, the City shall be entitled to seek injunctive relief and supplemental remedies prohibiting or mandating action by IMCF in accordance with, or declaratory relief with respect to, the Non -Relocation Covenants. 5.2.2 IMCF agrees that, in the event of any of the actual or threatened (in the reasonable opinion of the City) breach by IMCF of any one of the Non -Relocation Covenants (i) the City shall be entitled to seek and obtain, a temporary restraining order, together with temporary, preliminary and permanent injunctive or other equitable relief, from any court of competent jurisdiction, to restrain or enjoin any actual or threatened breach by IMCF of any Non - Relocation Covenant without the necessity of posting a bond or other security and without any further showing of irreparable harm, balance of harms, consideration of the public interest or the inadequacy of monetary damages as a remedy, (ii) the administration of an order for injunctive relief would not be impractical and, in the event of any breach of any Non -Relocation Covenant by IMCF, the balance of hardships would weigh in favor of entry of injunctive relief, and (iii) the City may enforce any Non -Relocation Covenant contained in this Agreement through specific performance and supplemental remedies. 5.2.3 Subject to Applicable Laws, the Parties and MFP hereby agree and irrevocably stipulate that (a) the rights of the City to injunctive relief pursuant to this Non - Relocation Agreement shall not constitute a "claim" pursuant to Section 101(5) of the United States Bankruptcy Code (the "Bankruptcy Code") and shall not be subject to discharge or restraint of any nature in any bankruptcy proceeding involving IMCF, (b) this Agreement is not an "executory contract" as contemplated by Section 365 of the Bankruptcy Code, and (c) action(s) taken by the City pursuant to this Section 5.2 shall not in any way prejudice any other rights or remedies that the City may have under Section 5.3 or Section 5.5 of this Agreement if a court of competent jurisdiction fails to provide injunctive or other equitable relief prohibiting IMCF's violation of the Non -Relocation Covenants or, in the case of the remedies set forth in Section 5.5, fails to award Liquidated Damages under Section 5.3. 5.3 Liquidated Damages; Lease Rights and Revenues. IMCF and MFP acknowledge and agree that, in the event equitable relief is not granted by a court of competent jurisdiction for any reason or is otherwise unavailable following the occurrence of a Non- 9 Relocation Default, the remedies described in this Section 5.3 are the next most appropriate remedy. The Parties stipulate that the losses associated with a breach of the Non -Relocation Default are hard to fix and not readily ascertainable, involving losses that are hard to calculate and costs that are not readily apparent, thereby causing the Parties to agree on stipulated damages. Therefore, the City's sole remedy in the event of a Non -Relocation Default during the Non - Relocation Term, and the failure of any court to grant the equitable relief described in Section 5.2, is that IMCF shall pay the Liquidated Damages to the City. If IMCF fails to pay the Liquidated Damages within seven (7) business days after written notice from the City to IMCF demanding payment thereof, the City shall have the right to demand payment of the Liquidated Damages from MFP and MFP hereby agrees to absolutely, unconditionally (subject only to such defenses, if any, held by IMCF with respect to payment) and irrevocably pay to the City the Liquidated Damages within seven (7) business days of MFP receiving written notice from the City demanding payment thereof. For avoidance of doubt, (i) nothing herein (including but not limited to the payment of the Liquidated Damages) shall grant MFP the right to fail to make any and all payments in full of the Rent (as defined in the Stadium Lease) when due nor the right to terminate the Stadium Lease, and (ii) except as expressly set forth herein, neither IMCF nor MFP shall have the right to offset any amount of Liquidated Damages for any reason whatsoever. Notwithstanding anything to the contrary herein, the Parties and MFP acknowledge that a failure by IMCF and MFP to pay the Liquidated Damages when due shall constitute a default under this Agreement and the Stadium Lease that is separate and distinct from the Non -Relocation Default, and therefore, upon a failure by MFP to pay Liquidated Damages, the City shall be entitled to seek such relief as permitted under the Stadium Lease for a Monetary Default thereof. 5.4 Other Breach; Actual Damages. In the event of any breach of this Agreement by IMCF (other than a Non -Relocation Default subject to the remedies set forth in Section 5.2 or, if applicable, Section 5.3), or in the event of a Non -Relocation Default for which, notwithstanding the intent of the Parties, the City is unable to obtain the relief set forth in Section 5.2 or, if applicable, Section 5.3, the City shall have the right (i) to institute any and all proceedings, actions, or claims permitted by law or equity to recover any and all amounts necessary to compensate the City for all damages proximately caused by IMCF's breach under this Agreement, and (ii) to institute any and all proceedings, actions, or claims permitted by law or equity to compel specific performance with respect to IMCF's obligations under this Agreement and one or more actions to seek to obtain a temporary restraining order, together with such other temporary, preliminary and permanent injunctive or other equitable relief, from any court of competent jurisdiction capable of issuing or granting such relief, to compel IMCF to comply with or refrain or cease from breaching or violating the terms, covenants and conditions, in addition to any other remedies available, if any, against MFP for failure to pay the Liquidated Damages as set forth in the Stadium Lease. In addition to the foregoing, if MFP fails to make payment of the Liquidated Damages as and when required under Section 5.3, then such amount shall be deemed additional rent under the Stadium Lease and the City shall be entitled to the remedies set forth in the Stadium Lease with respect thereto. 5.5 Termination. 5.5.1 The entry of a Final Order finding that IMCF breached the Non - Relocation Covenant set forth in Section 2.2 as a result of a permanent relocation of the Team (a 10 "Final Notice") shall terminate this Agreement, subject to IMCF's continuing obligation to abide by the remedies set forth in such Final Order. 5.5.2 This Agreement, and all obligations of the Parties and MFP under this Agreement, shall terminate without further action by, or liability to, any Party upon the expiration or termination of the Stadium Lease for any reason. Except for the provisions of this Agreement that are expressly to survive termination, in the event of a termination of this Agreement under Section 5.5, all obligations of the Parties and MFP under this Agreement shall also automatically terminate, except for those obligations which by their express terms survive the termination or expiration of this Agreement, as discussed herein. 5.5.3 Termination of this Agreement, shall not alter any existing claim of any Party for breaches of such agreement(s) occurring prior to such termination and the obligations of the Parties and MFP thereto with respect to such existing claims occurring prior to such termination shall survive termination. 6. Governing Law; Interpretation. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida. The Parties and MFP hereby agree that venue and jurisdiction for all legal proceedings arising out of or relating to this Agreement shall be exclusively in Miami, Florida. The headings of sections and paragraphs in this Agreement are for convenience only and shall not be construed in any way to limit or define the content, scope or intent of the provisions hereof. As used in this Agreement, the singular shall include the plural, and masculine, feminine and neuter pronouns shall be fully interchangeable where the context so requires. Time is of the essence of this Agreement. 7. Entire Agreement. This Agreement constitutes the sole and entire agreement among the Parties and MFP with respect to this Agreement and supersedes all prior written or oral agreements among them relating to that subject matter. 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 other provision of this Agreement. 8. Representations and Warranties. 8.1 Subject to the assumption that this Agreement is in compliance with the Charter Amendment and the Referendum, as of the Execution Date, each of IMCF and MFP hereby represent and warrant to the City, each solely for itself, as follows: 8.1.1 Each of IMCF and MFP have obtained all requisite authorizations and consents to enter into this Agreement with the City of Miami and to consummate the transactions contemplated hereby, and the execution, delivery and performance of this Agreement and other agreements and instruments referred to herein and the consummation of the transaction contemplated herein by IMCF and MFP will not contravene, conflict with, violate, nor constitute a default under (i) the certificate of existence, bylaws, or operating agreements of IMCF or MFP, (ii) any provision of MLS Rules and Regulations, (iii) any law, order, rule, regulation, writ, injunction or decree now in effect of any government, governmental instrumentality or court having jurisdiction over IMCF or MFP, or (iv) any loan agreement or other contractual restriction binding on or affecting IMCF or MFP or any of their respective property or assets, except where 11 any of the foregoing could not reasonably be expected to have a material adverse effect on IMCF or MFP; 8.1.2 IMCF and MFP are not aware of, and have not received any notice of any actual, pending or threatened violation, proceeding or investigation, by any organization, person, individual, or governmental agency, affecting IMCF or MFP, which may adversely affect the ability of IMCF or MFP to fulfill and perform their respective obligations and their respective other undertakings under this Agreement. IMCF and MFP are not in default with respect to any judgment, order, injunction or decree of any Governmental Authority which is in any respect material to the respective transactions contemplated in and by this Agreement, and, to the best of IMCF's and MFP's respective knowledge, there is no current threat of any litigation or other legal action being filed against IMCF or MFP which would affect their respective ability to perform their obligations hereunder; 8.1.3 IMCF and MFP are limited liability companies duly organized, validly existing, and in good standing under the laws of the State of Delaware, and qualified to do business in the State of Florida; 8.1.4 IMCF is a member in good standing of MLS and is in compliance in all material respects with all applicable MLS Rules and Regulations which are relevant to the transactions contemplated herein; 8.1.5 IMCF and MFP and the individuals executing this Agreement on behalf of IMCF and MFP and the other documents and instruments referenced herein or otherwise executed and delivered in connection herewith on behalf of IMCF and MFP have the legal power, right and authority to bind IMCF and MFP under the terms and conditions stated herein. 8.2 Subject to the assumption that this Agreement is in compliance with the Charter Amendment and the Referendum, the City makes the following representations, covenants and warranties: 8.2.1 The City is a municipal corporation of the State of Florida and has the governmental power and authority to enter into this Agreement and, to the City's knowledge, perform its obligations under this Agreement, and the parties signing or joining in this Agreement on behalf of the City have the governmental authority to bind the City and to enter into this transaction. 8.2.2 This Agreement has been duly authorized by all necessary governmental action on the part of the City and does not require notice to or the consent or approval of any trustee or holder of any indebtedness or any other Person known to the City. 8.2.3 Neither the execution, delivery or performance of this Agreement by the City, nor, to the City's knowledge, the consummation by the City of the transactions contemplated hereby, nor compliance by the City with the provisions hereof conflicts or will conflict with, nor results in or will result in the breach of any provisions of, the organizational documents of the City, or any indenture, mortgage, contract, lease or other instrument to which the City is a party. 12 8.2.4 There is no action, suit, investigation or proceeding pending or, to the City's knowledge, threatened against the City before any court, arbitrator or administrative body or Governmental Agency and which, if decided adversely to the City's interest, would have an adverse effect upon the ability of the City to perform its obligations under this Agreement. 9. Successors and Assigns: Third Party Beneficiaries. 9.1 This Agreement shall bind IMCF and MFP (as with respect solely to Sections 5, 6, 8 through 10 and 12 through 18) and their assigns and successors; provided that IMCF and MFP shall not be entitled to transfer or assign their respective obligations hereunder without the prior written consent of the City, which consent shall be in its sole discretion and may be conditioned upon IMCF or MFP, as the case may be, remaining liable under this Agreement with respect to their respective obligations if the City is not reasonably satisfied with the creditworthiness of the transferee; provided, however, that if MLS approves the transfer or assignment, whether via merger, asset acquisition or otherwise, of the Team Rights to any other entity (an "IMCF Transferee"), then such IMCF Transferee shall automatically, without the need for any prior written consent of or any other action by the City, be assigned IMCF's interest in this Agreement, such IMCF Transferee shall assume, in a writing reasonably satisfactory to the City, all of the obligations of IMCF under this Agreement and IMCF shall be relieved of all obligations under this Agreement. IMCF shall provide the City written evidence of MLS approval of an IMCF Transferee within five (5) business days after IMCF's receipt thereof. 9.2 This Agreement shall bind the City and its respective assigns and successors; provided that the City may not transfer or assign this Agreement or any of its respective rights and obligations hereunder without the prior written consent of IMCF and MFP, which consents shall not be unreasonably withheld, conditioned, refused, or delayed. 9.3 Nothing in this Agreement, express or implied, is intended to (a) confer upon any Person other than MLS, 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; or (b) authorize anyone not a party to this Agreement (other than MLS) to bring or maintain an action pursuant to or based upon this Agreement. MLS is an intended third party beneficiary of this Agreement, provided that, for the avoidance of doubt, in no event shall MLS have any liability or obligations hereunder. 10. Amendments; Waivers. No modification, amendment or waiver of this Agreement or of any of its conditions or provisions shall be binding unless such modification, amendment or waiver is in writing and signed by the Parties and MFP, and that all necessary MLS approvals have been obtained in advance thereof. No failure by either Party to insist upon the strict performance of any of the terms of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute a waiver of any such breach or of any of the terms of this Agreement. None of the terms of this Agreement to be kept, observed or performed by IMCF or MFP, and no breach thereof, shall be waived, altered or modified except by a written instrument executed by the non -breaching Party. No waiver of any breach shall affect or alter this Agreement, but each of the terms of this Agreement shall continue in full force and effect with respect to any other then existing or subsequent breach thereof. No waiver of any default of any Party or MFP hereunder shall be implied from any omission by the other Party to take any action on account of 13 such default, and no express waiver shall affect any default other than the default specified in the express waiver and then only for the time and to the extent therein stated. One or more waivers by any Party shall not be construed as a waiver of a subsequent breach of the same covenant, term or condition. 11. Indemnification by IMCF. IMCF shall indemnify, defend (at their sole cost and expense) and hold harmless the City and each and all of its respective directors, officers, employees, agents, licensees, volunteers, independent contractors and consultants or any of them as their interests may appear (collectively, "Government Indemnitees"), of, from and against all claims, actions, fines, claim costs, charges and expenses, liabilities, suits, obligations, demands, actions, settlements, and judgments recovered from any of them, including attorneys' fees incurred to defend such claims in administrative, trial, appellate and all other proceedings asserted by third parties against the City (collectively, "Losses"), to the extent such Losses arise from any breach of this Agreement by IMCF. To the extent applicable, any such indemnification shall be provided in accordance with the indemnification procedures set forth in Section 8.2 of the Stadium Lease. IMCF expressly understand and agree that any insurance protection required by this Agreement or otherwise provided by IMCF shall in no way limit the responsibility to indemnify, keep and save harmless and defend the Government Indemnitees as herein provided. 12. Sovereign Immunity. Notwithstanding any other provision of this Agreement, nothing herein shall be construed as a waiver by the City of any limitations of liability applicable to the City as set forth in Section 768.28, Florida Statutes or other applicable law. 13. Nonrecourse Liability of IMCF and MFP 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), the individual officers, directors, partners, shareholders, members, employees and agents of IMCF and MFP and their respective Affiliates (the "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 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 Personnel; and the liability of IMCF and MFP under this Agreement shall be limited to the assets of IMCF and MFP. 14. Nonrecourse Liability of City Personnel. Notwithstanding and prevailing over any contrary provision or implication in this Agreement, no member, elected or appointed official, officer, employee, agent, independent contractor or consultant of the City shall be liable to IMCF or MFP, or any successor in interest to IMCF or MFP, in the event of any default or breach by the City for any amount which may become due to IMCF or MFP or any successor in interest to IMCF or MFP under this Agreement, or on any other obligation under the terms of this Agreement, 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). 15. 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 electronic mail (provided that any notice sent by electronic mail shall simultaneously be sent personal delivery, 14 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 and MFP at the addresses set forth below (or at such other address as a Party or MFP may specify by notice given pursuant to this Section 15 to the other Parties and MFP): To IMCF and/or MFP: With a copy to: To the City: With a copy to: Inter Miami CF, LLC 800 Douglas Road 7t' Floor Coral Gables, Florida 33134 Attn: Pablo A. Alvarez. Miami Freedom Park, LLC 800 Douglas Road 12th Floor Coral Gables, Florida 33134 Attn: Pablo A. Alvarez Holland & Knight, LLP 701 Brickell Avenue, Suite 3300 Miami, Florida 33131 Attn: Richard Perez City Manager 444 SW 2nd Avenue, loth Floor Miami, Florida 33130 City Attorney 444 SW 2nd Avenue, 9th Floor Miami, Florida 33130 O'Melveny & Myers LLP Times Square Tower 7 Times Square New York, NY 10036 Attention: Irwin Raij, Esq. E-mail: iraij@omm.com 17. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under any applicable Law, but if any provision of this Agreement is held to be prohibited by or invalid under any applicable Law, the Parties and MFP shall, to the extent possible, negotiate a revised provision which (a) complies with Applicable Law, (b) does not alter any of the substantive rights, obligations or liabilities of any party under this 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 15 substantial performance, shall be enforced as if this Agreement was entered into without the invalid provision. 18. Counterparts. If this Agreement is executed in several counterparts, each of those counterparts shall be deemed an original, and all of them together shall constitute one and the same instrument. [SIGNATURES FOLLOW ON NEXT PAGE] 16 IN WITNESS WHEREOF, this Agreement has been executed by duly authorized officers of IMCF and MFP, and duly authorized officials of the City, each of whom hereby represents and warrants that he has the full power and authority to execute this Agreement in such capacity, all as of this [ ] day of [ ], 20. INTER MIAMI CF, LLC, a Delaware limited liability company By: Name: Title: STATE OF FLORIDA ) ) ss: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me by means of ❑ physical presence or ❑ online notarization this day of , 20 by as , of Inter Miami CF, LLC, a Delaware limited liability company, on behalf of the company, ❑ who is personally known to me or ❑ who has produced as identification. [NOTARIAL SEAL] Print Name: Notary Public, Commission #: My Commission Expires: [SIGNATURES CONTINUED ON NEXT PAGE] 4297/49021-074 CURRENT/126343891v2 STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument or ❑ online notarization this as , of Miami on behalf of the company, ❑ MIAMI FREEDOM PARK, LLC, a Delaware limited liability company, but only with respect to Sections 5, 6, 8 through 10, and 12 through 18 of this Agreement By: Name: Title: ) ss: ) was acknowledged before me by means of ❑ physical presence day of , 20 by Freedom Park, LLC, a Delaware limited liability company, who is personally known to me or ❑ who has produced as identification. [NOTARIAL SEAL] Print Name: Notary Public, Commission #: My Commission Expires: [SIGNATURES CONTINUED ON NEXT PAGE] CITY OF MIAMI, a municipal corporation of the State of Florida By: Name: Title: ATTEST: By: Todd B. Hannon City Clerk APPROVED AS TO LEGAL FORM & CORRECTNESS: By: Victoria Mendez City Attorney STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me by means of n physical presence or n online notarization, this day of , by Arthur Noriega, as the City Manager of the City of Miami, a municipal corporation of the State of Florida, on behalf of the municipal corporation, who is personally known to me or who has produced as identification. [NOTARIAL SEAL] Print Name: Notary Public, Commission #: My Commission Expires: