HomeMy WebLinkAboutBack-Up Document - Draft Construction Admin AgreementOMM Draft 8/7/2019
STADIUM CONSTRUCTION ADMINISTRATION AGREEMENT
by and between
CITY OF MIAMI,
a municipal corporation of the State of Florida
and
[MBU]
a [ ]
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Table of Contents
Page
ARTICLE 1 CERTAIN DEFINED TERMS...................................................................................2
ARTICLE 2 DEVELOPMENT OF STADIUM PROPERTY AND CONSTRUCTION OF
STADIUM................................................................................................................11
ARTICLE 3 STADIUM FINANCING AND TAXES..................................................................22
ARTICLE 4 ENVIRONMENTAL COMPLIANCE.....................................................................23
ARTICLE 5 INSURANCE AND INDEMNIFICATION.............................................................26
ARTICLE 6 COMPLIANCE WITH APPLICABLE LAWS; LIMITATIONS OF LIABILITY
..................................................................................................................................26
ARTICLE7 DEFAULT................................................................................................................27
ARTICLE8 NOTICES..................................................................................................................31
ARTICLE 9 CONSTRUCTION OF TERMS AND MISCELLANEOUS...................................31
ARTICLE 10 REPRESENTATIONS AND WARRANTIES.......................................................34
ARTICLE 11 EQUAL OPPORTUNITY......................................................................................37
ARTICLE12 LIVING WAGE......................................................................................................38
EXHIBIT A LEGAL DESCRIPTION OF STADIUM PROPERTY
EXHIBIT B STADIUM PROJECT REQUIREMENTS
EXHIBIT C TRANSPORTATION MANAGEMENT PLAN
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STADIUM CONSTRUCTION ADMINISTRATION AGREEMENT
THIS STADIUM CONSTRUCTION ADMINISTRATION AGREEMENT (this
"Agreement"), dated as of [ ] (the "Effective Date"), is made by and between the 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"), and [Entity to be
determined] ("MBU"). The City and MBU shall sometimes be referred to herein collectively as
the "Parties," and each, individually, as a "Party."
RECITALS:
WHEREAS, the City is the owner in fee simple of the Parent Tract, as such term is defined
in that certain Ground Lease and Master Development Agreement entered into by the Parties and
Miami Freedom Park, LLC, a Delaware limited liability company and an affiliate of MBU, having
its principal office and place of business at 800 S. Douglas Road, 12th floor, Coral Gables, Florida
33134 ("MFP" and together with the Parties, the "Stadium Parties") as of the Execution Date
(the "Master Lease") and legally described in Exhibit A thereto, which Parent Tract includes the
Demised Property, as such term is defined in the Master Lease and legally described in Exhibit B
thereto;
WHEREAS, MBU is the owner and operator of a Major League Soccer ("MLS") franchise
known as Inter Miami CF (the "Team");
WHEREAS, MBU seeks to design, develop and construct a modern, state-of-the-art
professional soccer complex inclusive of an approximately 25,000 -seat MLS stadium and related
facilities within the City of Miami (the "Stadium Project") on an approximately 10.5 -acre portion
of the Demised Property (the "Stadium Property"), as legally described in Exhibit A:
WHEREAS, the Stadium Parties, contemporaneously with the execution of this Agreement
are entering into that certain Stadium Operating Agreement (the "Stadium Lease") with respect
to the operation and management of the Stadium;
WHEREAS, contemporaneously with the execution of this Agreement, the Stadium Parties
are entering into (a) the Master Lease with respect to that portion of the Demised Property that is
not the Stadium Property (the "Ancillary Development Property"), (b) that certain Park
Rehabilitation and Environmental Agreement (the "Park Rehabilitation Agreement") with
respect to the Environmental Work and the Park Work, as such terms are defined in the Park
Rehabilitation Agreement, and (c) the Community Benefits Agreement (the "Community
Benefits Agreement") with respect to the community benefits described therein;
WHEREAS, contemporaneously with the execution of this Agreement, the Parties are
entering into that certain Non -Relocation Agreement (the "Non -Relocation Agreement", and
collectively with this Agreement and the Stadium Lease, the "Stadium Agreements") pursuant to
which MBU and MFP agree to cause the Team to play all of its Home Matches (as defined therein)
in the Stadium as a material inducement to the City to enter into the other Lease Agreements;
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 obtain tax revenues from the
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uses on the Parent Tract, and to stimulate economic activity in the City, the City has agreed to
permit MFP and MBU to re-develop the Parent Tract as set forth in the Lease Agreements;
WHEREAS, MFP and MBU have agreed to develop and cause the construction and
operation of the Project at no cost to the City, while ensuring that the City receive (i) a financial
return which meets or exceeds fair market value through a minimum rent, profit sharing, or other
similar financial contribution, (ii) taxes for the Demised Property, and (iii) other community
benefits;
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
Demised Property to MFP ("Charter Amendment");
WHEREAS, on November 6, 2018, the City's residents approved, by public referendum,
the Charter Amendment (the "Referendum"); and
WHEREAS, on [ ], the City Commission passed Resolution [],
authorizing the execution of the Lease Agreements.
NOW, THEREFORE, the City and MBU mutually covenant and agree that this Agreement
is made upon the agreements, terms, covenants and conditions hereinafter set forth below.
ARTICLE 1_
CERTAIN DEFINED TERMS
In addition to other capitalized terms as defined in the introductory recitals or elsewhere in
this Agreement, when used in this Agreement, the terms set forth below shall be defined as set
forth in this Article 1. Capitalized terms not otherwise defined herein shall have the meanings
ascribed to them in the Stadium Lease, except for those terms which are not defined therein, which
shall have the meaning ascribed to them in the Master Lease. For the avoidance of doubt, except
as otherwise provided in this Agreement, if any provision contained herein is in conflict with, or
inconsistent with, any provision in the Stadium Lease or the Master Lease, the provisions
contained in this Agreement shall govern and control.
1.1 "Affiliates" shall mean, for any Person, any other Person that such Person Controls.
1.2 "Aureement" shall have the meaning ascribed to such term in the introductory
paragraph of this Agreement, and includes all exhibits and schedules thereto and all amendments,
supplements, addenda or renewals thereof.
1.3 "Ancillary Development" shall have the meaning ascribed to such term in the
recitals of this Agreement.
1.4 "Applicable Law(s)" shall mean any and all applicable laws, statutes, codes,
ordinances, rules, regulations, authorizations, orders, judgments, decrees, injunctions and other
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requirements of any and all Governmental Agencies, now existing or hereafter enacted, adopted,
issued or amended from time to time, whether foreseen or unforeseen, ordinary or extraordinary,
which may be applicable to the Stadium Property and/or the Improvements or any part thereof.
1.5 "Base Rent Pavment" shall have the meaning ascribed to such term in the Master
Lease.
1.6 `Brownfield" means real property, the expansion, redevelopment, or reuse of
which may be complicated by actual or perceived environmental contamination.
1.7 "BSRA" means Brownfield Site Rehabilitation Agreement, as that term is defined
by the Brownfield Redevelopment Act, 376.77-85, Fla. Stat.
1.8 "Business Dad' shall mean a day of the year that is not a Saturday, Sunday or Legal
Holiday.
1.9 "Certificate of Occuvancv" shall mean the certificate issued by the Governmental
Agency and/or department authorized to issue a certificate of occupancy or certificate of
completion, as applicable, evidencing that the applicable building(s) is (are) ready for occupancy
in accordance with Applicable Laws.
1.10 "Chance Order" shall mean a (i) written agreement between MBU and the
Contractor, Design Professional, or a Consultant (as the case may be) resulting in a Material
Change in scope, Completion Deadline, and/or terms of a Design Contract, Construction Contract
or Consultant Contract relative to the Stadium Project, or (ii) a written directive issued or
authorized by MBU to the Contractor, Design Professional, or a Consultant (as the case may be)
resulting in a change in scope, Completion Deadline, and/or terms of a Design Contract,
Construction Contract or Consultant Contract.
1.11 "Chance Order Documentation' shall have the meaning ascribed to such term in
Section 2.11(A).
1.12 "City" shall have the meaning ascribed to such term in the introductory paragraph
of this Agreement.
1.13 "City Attornev" shall mean Victoria Mendez or her successor as City Attorney of
the City of Miami, Florida.
1.14 "City Commission' shall mean the City Commission of the City of Miami, Florida.
1.15 "City Manager" shall mean Emilio T. Gonzalez or his successor as City Manager
of the City of Miami, Florida.
1.16 "City Manauer Approval Procedures" shall mean [CITY TO PROVIDE].
1.17 "Code" shall mean the Code of Ordinances of the City of Miami, Florida, or any
other Governmental Agency having jurisdictional authority over the Stadium Property and future
development of the Stadium Property.
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1.18 "Comparable MLS Stadiums" shall mean, when comparing the design,
construction, maintenance and improvements of the Stadium, MLS facilities of reasonably
comparable size, age and features, as reasonably determined by the Parties, including but not
necessarily limited to the MLS Stadiums currently known as Allianz Field in St. Paul, Minnesota,
Banc of California Stadium in Los Angeles, California, Exploria Stadium in Orlando, Florida, and
West End Stadium in Cincinnati, Ohio.
1.19 "Commencement of Construction" and "Commence(s) Construction" shall
mean the later of (i) the filing of the notice of commencement under Florida Statutes, Section
713.13, (ii) the issuance of all material Permits for the applicable Improvements, and (iii) the
visible start of actual vertical construction work with respect to the Stadium, including, without
limitation, the pouring of the foundation, on-site utility, excavation or soil stabilization work (but
specifically excluding any ceremonial groundbreaking). In order to meet the definition of
"Commencement of Construction" or "Commence Construction," such filing of the notice of
commencement and visible start of construction work must occur after MBU has issued the Notice
to Proceed.
1.20 "Completion of Construction" and "Complete Construction" shall mean, the
occurrence of all of the following: (i) the architect of record has signed and delivered to MBU a
certificate of final completion in accordance with the Final Plans and Specifications and the
approved Construction Contract for the Improvements; (ii) a temporary or permanent Certificate
of Occupancy, Certificate of Completion, or its equivalent, is issued for the Improvements
pursuant to which the occupancy and/or operation of the Improvements can be legally commenced;
(iii) all "punch -list" items have been completed; (iv) the Improvements have been otherwise
completed in a lien -free condition and documents evidencing same, including, without limitation,
a Contractor's Final Payment Affidavit under Chapter 713.06 of the Florida Statutes have been
delivered to City; and (v) the Stadium being open to be used for its purpose as the home stadium
for all of the Team's Home Matches.
1.21 "Completion Deadline" shall have the meaning ascribed to such term in Section
2.5.
1.22 "Contractor" shall mean the construction manager, duly licensed pursuant to
Chapter 489, Florida Statutes, engaged by MBU, responsible for constructing the Stadium, or any
portion thereof, pursuant to the Construction Contract, and such replacement contractor(s) as may
be selected in accordance with the terms herein from time to time.
1.23 "Construction Budget" shall mean the approved budget with respect to the
Stadium Project.
1.24 "Construction Contract" shall mean the approved general contract with respect
to the Stadium Project.
1.25 "Construction Plans" shall consist of the final detailed and completed plans and
specifications for the Improvements, including the drawings and specifications which are in a
format with sufficient detail, as required to obtain building permits for the Improvements, and have
been approved by the City in accordance with the terms and conditions of this Agreement.
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Construction Plans shall include, without limitation, infrastructure, elevations, site plans, colors,
Signage plans, lighting, materials, access, utilities, security, setbacks, floor plans and landscaping.
1.26 "Construction Schedule" shall mean the approved construction schedule with
respect to the Stadium Project.
1.27 "Consultant" shall mean the planning consultant, environmental consultant,
architectural/design consultant, or other professional either individually or in combination as the
context shall require, engaged by MBU responsible for planning, permitting, administering and
designing the Stadium Project, or any portion thereof, pursuant to a Consultant Contract, and such
replacement consultant(s) as may be agreed to between the Parties from time to time.
1.28 "Consultant Contract(s)" shall mean the agreement(s) to be entered into by and
between MBU and the Consultant(s) for the planning, design (including the Design Contract) and
construction administration of the Stadium, or any portion thereof, as such Consultant Contract
may be amended by MBU from time to time through a Change Order authorized pursuant to
Section 2.11 herein.
1.29 "Control" means the possession, directly or indirectly (through one or more
intermediaries), of the power or authority to direct or cause the direction of management, policies
or activities of a Person, whether through ownership or control of voting securities or beneficial
interests, by contract or otherwise. "Controls" and "Controlled" shall have correlative meanings.
1.30 "Custodian Agreement" shall mean a custodian agreement with a national
banking association authorized by law to exercise corporate trust powers.
1.31 "Days" or "dans" shall mean, except as specifically set forth herein, that any period
of time referred to in this Agreement of five (5) days or less shall be considered as Business Days,
and that any period of time referred to in this Agreement of more than five (5) shall be considered
as calendar days (unless specifically stated to the contrary), but if such period ends on day other
than a Business Day, then such period shall automatically extended until the next Business Day.
1.32 "Department" shall mean the City of Miami Department of Real Estate and Asset
Management or its successor department or agency.
1.33 "Design Contract" shall mean the agreement to be entered into by and between
MBU and the Design Professional selected for the design of the Stadium, or any portion thereof,
as such design contract may be amended or replaced from time to time.
1.34 "Design Professional" shall mean the design professional for the design of the
Stadium or any portion thereof, as may be selected in accordance with this Agreement.
1.35 "Development Plans" shall means those plans approved by the City required in
connection with the design and construction of the Stadium Project, including, without limitation:
(i) the Construction Plans, (ii) all application materials or other materials necessary or required in
connection with obtaining the Entitlements; and (iii) any and all other plans, drawings or
renderings, including, without limitation, design development plans, conceptual layouts and
artistic or architectural renderings, elevations or plans.
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1.36 "Easements" shall have the meaning ascribed to such term in Section 2.16.
1.37 "Effective Date" shall have the meaning ascribed to such term in the preamble to
this Agreement.
1.38 "Encumbrances" shall mean any liens, covenants, obligations, restrictions,
easements, encroachments, judgments, claims (including any litigation challenging the City's
authority to lease the Stadium Property to MBU), mortgages or licenses, including, without
limitation, Impositions, fines, mechanics liens and materialman's liens, of any kind or nature
affecting or attached to the Stadium Property.
1.39 "Entitlements" shall mean such Permits, approvals, zoning changes and any and
all land use approvals from Governmental Agencies necessary to construct, use and operate the
Stadium Property in a manner consistent with the Improvements or uses contemplated by the
Stadium Project.
1.40 "Environmental Activities" means any activities required by any Governmental
Agency pursuant to Environmental Law to investigate, correct and remediate a Release or
threatened Release. Such Environmental Activities shall include, without limitation, the
investigations, removal, restoration, remediation, and/or rehabilitation activities required by any
Governmental Agency with jurisdiction over such activities pursuant to Environmental Law,
including, without limitation, any required sampling, testing, monitoring, document submittal, or
reporting.
1.41 "Environmental Condition" means any event, circumstance or condition
constituting (i) recognized environmental conditions within the meaning of ASTM 1527-13; (ii)
the current or past Release or threatened Release of any Hazardous Material into the Stadium
Property, whether originating from the Stadium Property or from off-site contamination or
pollution that has migrated thereto; or (iii) any violation of Environmental Laws at or on any part
of the Stadium Property.
1.42 "Environmental Law" means any federal, state or local law, statute, ordinance,
code, rule, regulation, license, authorization, decision, order, injunction, decree, or rule of common
law, and any judicial or agency interpretation of any of the foregoing, which pertains to health,
safety, any Hazardous Material, or the environment (including, but not limited to, ground or air or
water or noise pollution or contamination, and underground or above ground tanks) and shall
include without limitation, the Solid Waste Disposal Act, 42 U.S.C. 6901 et seq.; the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U. S C.
Section 9601 et seq. (CERCLA), as amended by the Superfund Amendments and Reauthorization
Act of 1986. (SARA); the Hazardous Materials Transportation Act 49 U.S.C. Section 1801 C 5-
QQ; the Federal Water Pollution Control Act, 33 U.S.C. Section 1251, et seq.; the Clean Air Act
42 U.S.C. Section 7401, et seq.; the Toxic Materials Control Act 15 U.S.C. Section 2601, et seq.;
the Safe Drinking Water Act, 42 U.S.C. Section 3OOf, et. seq.; Chapters 403, 376 and 373, Florida
Statutes; Chapter 24 of the Miami -Dade County Code, and any other local, state or federal
environmental statutes, codes, or ordinances, and all rules, regulations, orders and decrees now or
hereafter promulgated under any of the foregoing, as any of the foregoing now exist or may be
changed or amended or come into effect in the future.
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1.43 "Environmental Representative" means employees, agents, representatives,
consultants, contractors and subcontractors who perform Environmental Activities.
1.44 "Environmental Requirement" means any Environmental Law, agreement or
restriction (including, but not limited to, any condition or requirement imposed by any insurance
or surety company), as the same now exists or may be changed or amended or come into effect in
the future, which pertains to Hazardous Material in the environment, including, but not limited to,
ground or air or water pollution or contamination, and underground or aboveground tanks.
1.45 "Event of Default" shall be as defined in Section 7.1 (as to Events of Default by
MBU) and Section 7.4 (as to Events of Default by the City).
1.46 "Executive Order" shall mean Executive Order No. 13224 (Blocking Property and
Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism).
1.47 "Funding Deadline" shall have the meaning ascribed to such term in Section 3.1.
1.48 "Final Plans" shall have the meaning ascribed to such term in Section 2.10(B).
1.49 "Governmental Agencv(ies)" shall mean all federal, state, county and municipal
governments, courts and other governmental and quasi -governmental authorities, and the
departments, bureaus, commissions, agencies, boards (including, without limitation, any
environmental protection, planning or zoning board) offices or instrumentalities of any nature
whatsoever thereof, or any other body or bodies exercising similar functions, whether now or
hereafter in existence, having or acquiring jurisdiction over all or any part of the Stadium Property
or any aspect of the development or operation of the Stadium Project; provided, however, that such
term shall include the City only in its municipal capacity and not its proprietary capacity.
1.50 "Hazardous Material' means any substance, whether solid, liquid or gaseous,
which is listed, defined or regulated as a "hazardous substance," a "hazardous waste" or "solid
waste," or pesticide, or otherwise classified as hazardous or toxic, in or pursuant to any
Environmental Requirement; or which is or contains asbestos, radon, any polychlorinated
biphenyl, urea formaldehyde foam insulation, explosive or radioactive material, or motor fuel or
other petroleum hydrocarbons.
1.51 "Hazardous Materials Release" shall have the meaning ascribed to such term in
Section 4.2(B).
1.52 "Impositions" shall mean all taxes, including, but not limited to, ad valorem taxes,
special assessments, sales taxes, intangible taxes and other charges, impositions, assessments, fees
or any other levies by any Governmental Agency or other entity with appropriate jurisdiction and
any and all liabilities (including interest, fines, penalties or additions) with respect to the foregoing.
The term "Impositions" shall include franchise fees, excises, license and permit fees, levies,
charges and taxes (including ad valorem real estate taxes on the land under the Stadium Property
and/or on the Improvements), personal property taxes, bed taxes, sales taxes, fire fees and parking
surcharges of any kind now or hereafter enacted, whether general or special, ordinary or
extraordinary, foreseen or unforeseen, any of which is properly levied against the Stadium Property
and/or Improvements.
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1.53 "Improvements" shall mean the Stadium and any other related buildings to be
constructed on the Stadium Property, and other structures, facilities or amenities, and all related
infrastructure, installations, fixtures, equipment, utilities, site -work and other improvements
existing or to be developed upon the Stadium Property. The term "Improvements" shall not,
however, include Required Infrastructure.
1.54 "Institutional Control" means the restriction on use or access to a site to eliminate
or minimize exposure to contaminants; such restrictions may include, but are not limited to, deed
restrictions, restrictive covenants, or conservation easements.
1.55 "Lease Agreements" shall mean, collectively, this Agreement, the Master Lease,
the Stadium Lease, the Non -Relocation Agreement, the Park Rehabilitation Agreement, the
Community Benefits Agreement, and any other agreements deemed necessary by the Parties to
memorialize the terms and conditions set forth in these agreements.
1.56 "Legal Holidav" shall mean any day, other than a Saturday or Sunday, on which
the City's administrative offices are closed for business.
1.57 "Living Wage" shall have the meaning ascribed to such term in Section 12.1.
1.58 "Maior Contractor(s)" shall mean each contractor and/or subcontractor under any
Construction Contract.
1.59 "Master Lease" shall have the meaning ascribed to such term in the recitals of this
Agreement.
1.60 "Material Changes" shall mean a major modification to the proposed
Improvements that materially deviate from the Stadium Project Requirements or the Plans and
Specifications previously approved by the City such that the changes (a) increase the square
footage of the Improvements approved through the Plans and Specifications by more than fifty
percent (50%) as depicted on the prior approved Plans and Specifications, or (b) move the footprint
of any structure closer than one hundred (100) feet from N.W. 37th Avenue.
1.61 "NFP" shall have the meaning ascribed to such term in the introductory paragraph
of this Agreement.
1.62 "MLS" shall mean Major League Soccer.
1.63 "No Further Action Determination" or "NFA Determination" or "NFA" means
a Site Rehabilitation Completion Order (SRCO) or a conditional Site Rehabilitation Completion
Order (CSRCO), as those terms are defined in Chapter 62-780, Fla. Admin. Code, from the Florida
Department of Environmental Protection (FDEP), or a No Further Action Determination or a No
Further Action with Conditions determination from Miami -Dade County under Chapter 24 of the
Miami -Dade County, Florida Code, or similar determination from a federal, local or other
applicable Governmental Agency advising that no further action is necessary with respect to the
Release(s) of Hazardous Material(s) at the Demised Property and Public Park Parcel in order to
meet the requirements of Environmental Law with respect to such Release(s).
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1.64 "Non -Party Affiliates" shall have the meaning ascribed to such term in Section
9.17.
1.65 "Non -Relocation Aereement" shall have the meaning ascribed to such term in the
recitals of this Agreement.
1.66 "Notice" shall have the meaning ascribed to such term in Section 8.2.
1.67 "Notice to Proceed" shall mean the written notice MBU gives to any prime
construction contractor to proceed with construction, demolition, or other development work on
or adjacent to the Stadium Property, or any portion of either.
1.68 "OFAC" shall mean the Office of Foreign Assets Control.
1.69 "Parties" or "Party" shall have the meaning ascribed to such terms in the
introductory paragraph of this Agreement.
1.70 "Pavment and Performance Bond" shall have the meaning ascribed to such term
in Section 3.2.
1.71 "Permit" shall mean any permit or authorization issued or required to be issued by
the appropriate Governmental Agency and/or department authorized to issue such permits or
authorizations, including, but not limited to, applicable permits for construction, demolition,
installation, foundation, dredging, filling, alteration, repair or installation of any building,
structure, sanitary plumbing, water supply, gas supply, electrical wiring or equipment, elevator or
hoist, HVAC, sidewalk, curbs, gutters, drainage structures, paving and the like.
1.72 "Person" means any individual, corporation, partnership, joint venture, limited
liability or other company, association estate, trust, firm, unincorporated association, other legal
entity or investment enterprise, any Governmental Agency, and any fiduciary acting in such
capacity on behalf of any of the foregoing.
1.73 "Plans and Specifications" shall have the meaning ascribed to such term in
Section 2.10(B) and shall further include the plans and specifications for all the work in connection
with the demolition or alteration of any existing improvements, any new construction on the
Stadium Property, and the alteration, construction and reconstruction of any portion of the Stadium
Project or other work required to be done or performed hereunder, and shall include any changes,
additions or modifications thereof, provided the same are approved to the extent required herein.
1.74 "Pre-Existine Environmental Conditions" means any and all Environmental
Conditions affecting the Stadium Property, whether known or unknown, existing as of the
Effective Date.
1.75 "Proiect" means, collectively, Stadium Project, the construction and development
obligations set forth in the Master Lease with respect to the Ancillary Development, the
construction and development obligations set forth in the Park Rehabilitation Agreement, and the
construction and development obligations set forth in the Community Benefits Agreement.
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1.76 " PRPs" shall have the meaning ascribed to such term in Section 4.2(C).
1.77 "Replay shall have the meaning ascribed to such term in Section 2.11.
1.78 "Required Infrastructure" shall include all on-site and off-site infrastructure
required (including but not limited to by any platting and permitting process) for the development
of the Stadium Project, including, but not limited to, the provision of, or upgrades and additions
to, (i) storm water management/drainage systems; (ii) grading and paving; (iii) water distribution
and sanitary sewer systems; (iv) electrical distribution and telecommunications systems; and (v)
on-site and off-site roadway improvements.
1.79 "Sanctioned Countrv" shall mean any country or territory subject to
comprehensive Sanctions (as of the Lease Execution Date and without limitation, Cuba, Iran,
North Korea, Syria, and the Crimea region of Ukraine).
1.80 "Sanctions" shall mean economic sanctions administered by OFAC, the U.S.
Department of State, or any other applicable economic sanctions authority.
1.81 "Schematic Desien Packaue" shall have the meaning ascribed to such term in
Section 2.10(A).
1.82 "Stadium" shall have the meaning ascribed to such term in the recitals of this
Agreement.
1.83 "Stadium Agreements" shall mean, collectively, this Agreement, the Stadium
Lease, and the Non -Relocation Agreement.
1.84 "Stadium Construction Account" shall have the meaning ascribed to such term
in Section 3.2.
1.85 "Stadium Lease" shall have the meaning ascribed to such term in the recitals of
this Agreement.
1.86 "Stadium Proiect" shall mean the overall development of the Stadium Property,
as described in the Development Concept and in the Plans and Specifications to be submitted by
MBU, as may be modified from time -to -time in the manner set forth in this Agreement.
1.87 "Stadium Proiect Budget" shall have the meaning ascribed to such term in
Section 3.1.
1.88 "Stadium Proiect Reauirements" shall have the meaning ascribed to such term in
Section 2.2.
1.89 "Stadium Property" shall have the meaning ascribed to such term in the recitals
to this Agreement.
1.90 "Team" shall have the meaning ascribed to such term in the recitals of this
Agreement.
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1.91 "MBU" shall have the meaning ascribed to such term in the introductory paragraph
of this Agreement.
1.92 "Unavoidable Delays" shall mean delays beyond the control of a Party required to
perform, such as delays due to strikes; a natural catastrophe, such as an earthquake, hurricane,
flood or tornado, that could not have been prevented; fires; enemy action; civil disturbance;
sabotage; restraint by court or public authority; litigation or formal administrative challenges by
third parties to the execution or performance of this Agreement or the procedures leading to its
execution or to the process of entitlement for the Stadium Property; or moratoriums.
Notwithstanding anything in this Agreement to the contrary, if a Party shall be delayed in the
performance of any act required under this Agreement by reason of any Unavoidable Delay, then
provided notice of the Unavoidable Delay is given to the other Party within ten (10) days after its
occurrence, performance of the act shall be excused for the period of the delay and the period for
the performance of the act shall be extended for a reasonable period, in no event to exceed the
lesser of [ I days or a period equivalent to the period of the delay. The provisions hereof
shall not operate to excuse MBU from the obligations to maintain insurance. For the avoidance of
doubt, delays or failures to perform resulting from lack of funds or the increased cost of obtaining
labor and materials shall not be deemed delays beyond the direct control of a Party.
ARTICLE 21
DEVELOPMENT OF STADIUM PROPERTY AND CONSTRUCTION OF STADIUM
2.1 MBU's Facilities to be Constructed at No Cost to Citv. MBU shall pay the entire
cost of all Improvements and Required Infrastructure and any alterations thereof, including the
cost of all utility connections, capacity, concurrency and impact fees payable to any Governmental
Agencies imposing the same, including sewer, water, transportation, school, or educational
facilities or land, park facilities or land, fire/EMS facilities or land, or service impact fees
(collectively, the "Impact Fees"). Notwithstanding anything herein to the contrary and in
accordance with Section 3.1, the City shall not be responsible for any costs and expenses
associated with or related to the Stadium Project or Improvements, including, but not limited to,
the design, development, construction, capital replacement, operation and/or maintenance of the
Stadium.
2.2 Stadium Proiect Reauirements; Approval Riuhts. The Stadium Property shall
be used solely for the construction, development and use of the Stadium, which MBU shall cause
to be designed and constructed in accordance with a Stadium Project program statement (the
"Stadium Project Requirements"), as attached hereto as Exhibit B. The Parties acknowledge
and agree that the Stadium Project Requirements represent a general framework and scope of
design for the Stadium and include a quality standard similar to Comparable MLS Stadiums. The
City shall have approval rights over any material modifications or amendments to the Stadium
Project Requirements or any agreement regarding the construction and/or development of the
Stadium. The City shall have the right to reasonably approve all material development, design and
construction documents related to the Stadium to ensure compliance with the Stadium Project
' To discuss Conditions Precedent agreement/provision (see comments to Article 1 of draft Master Lease).
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Requirements and quality standards consistent with Comparable MLS Stadiums and schedule
impacts.
2.3 MBU's Riehts and Oblieations. MBU shall have the right to develop the Stadium
Property in a manner consistent with the Stadium Project Requirements and to contract for, or
delegate, portions of the development of the Stadium Property to third parties, and to construct, or
contract with others to cause construction of, the Stadium and other Improvements contemplated
in the Stadium Project Requirements, subject to the terms and conditions of this Agreement. MBU
shall have the right to relocate easements and utility lines within the Demised Property, including
the Stadium Property, at MBU's expense, if necessary for the development of the Stadium
Property, such relocation to be done with the consent and cooperation of the City, not to be
unreasonably withheld, conditioned or delayed, and the applicable utility company or other party
in whose favor such easement runs.
2.4 Stadium Desien and Construction. MBU shall be responsible for the design,
development and construction of the Stadium and to fund all costs and expenses related thereto,
including retaining any general contractors, project managers and/or any other person or entity
necessary for the design, development and construction of the Stadium. The City shall be permitted
to engage a landowner's representative and MBU shall reimburse the City for any reasonable costs
accrued therefrom. MBU shall ensure that the City is a third party beneficiary under all warranties
for construction and related contracts. MBU shall be responsible for ensuring that all legal
requirements and Applicable Laws are met, including securing all necessary Permits and zoning.
2.5 Completion Deadline and Citv Remedies. Once started, construction on the
Stadium Project shall be diligently and continuously pursued by MBU until completion, provided
that MBU shall not be required to perform, and/or shall be entitled to a reasonable extension of
time because of its inability to meet an obligation or a time frame or deadline specified in this
Agreement, where such failure or inability to perform is caused by an Unavoidable Delay. MBU
agrees that construction of the Stadium Project shall be substantially completed in a good and
workmanlike manner and in accordance with good construction practices and that construction of
the Stadium and reception of all approvals necessary to receive a Certificate of Occupancy shall
occur no later than [ I (the "Completion Deadline"). As set forth in the Master Lease,
MBU agrees that development and construction of the Ancillary Development may not begin until
construction of the Stadium is completed and the Certificate of Occupancy is issued. The Parties
acknowledge and agree that completion of the Stadium on time pursuant to the Stadium Project
Requirements is of great importance to the City. As such, MBU and MFP agree to pledge all of
MFP's rights under the Master Lease as security for completion of the Stadium pursuant to the
Stadium Project Requirements by the Completion Deadline.
2.6 Reauired Infrastructure. MBU agrees to cause the development and construction
of the Required Infrastructure. All Required Infrastructure shall be at MBU's sole cost and expense
and shall be completed prior to MBU shall be responsible for all necessary wayfinding plans and
directional signage per a plan to be approved by the City (which such items shall be included
within the Required Infrastructure).
2.7 Construction, Deleeation, the Citv Joinders. Subject to the terms and conditions
of this Agreement, MBU shall have the right and obligation to develop and to construct, or cause
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construction of, the Improvements. Upon the request of MBU but subject to any required approvals
of the City pursuant to the terms of this Agreement, the City, in its capacity as the owner of the
Demised Property, through the City Manager or his/her designee, as often as required, will execute,
join in, or consent to, any Permits, applications, approvals, agreements, or other administrative
documents necessary for the approval of the Stadium Project, the construction of the Stadium and
Improvements and the Required Infrastructure, provided such Permits, applications, approvals,
agreements, or other administrative documents necessary for the approval of the Stadium Project
do not conflict with the Stadium Agreements. The Permits, applications, approvals, agreements,
or other administrative documents may include, but are not limited to, any Stadium Project
Requirements and other documents, easement instruments and/or agreements, including, but not
limited to, water and sewer agreements, non-standard improvement agreements, estoppels and
non -disturbance and attornment agreements, as may be necessary for MBU to develop and use the
Stadium Property in accordance with the Plans and Specifications and the Stadium Project
Requirements. In furtherance thereof and on the condition that the City shall incur no liability, cost
or expense whatsoever in connection therewith, the City shall take such actions as necessary to:
(x) allow for the execution, submittal and, if required, the recording of any Permits, agreements,
temporary or permanent easements, or any covenants or declaration of restrictions required or
requested by the reviewing Governmental Agency, and (y) accept any conditions related to such
Permits, applications, approvals, agreements, or other administrative documents reasonably
imposed by the reviewing Governmental Agency; provided that any costs associated therewith
(including the cost of review by the City) will be assumed by MBU. The City agrees to use
reasonable efforts to review and approve any such requests within thirty (30) Business Days of
such request from MBU. If the City has not provided MBU with written notice of its approval
within the time period set forth above, the City shall be deemed to have consented to the applicable
request of MBU. In no event shall the City be required to respond to any request unless it shall
contain the following legend in ALL CAPS: F I.
2.8 Citv's Riehts As Sovereien. The City retains all its sovereign prerogatives and
rights as a City under Applicable Laws including, but not limited to, matters pertaining to the
planning, design, construction, development and operation of the Stadium. It is expressly
understood that notwithstanding any other provisions of this Agreement:
(A) The City retains all of its sovereign prerogatives and rights and regulatory
authority (quasi-judicial or otherwise) as a City under Applicable Laws (all of which shall be
absolute and unfettered in all respects), and shall in no way be estopped from withholding or
refusing to issue any approvals or 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 Stadium, or the operation thereof, provided, without
diminishing the foregoing, that the City (in its capacity as the City) agrees to reasonably cooperate
with MBU in MBU's efforts to expedite Permits and Entitlements.
(B) The City shall not by virtue of this Agreement or any other Lease
Agreement be obligated to grant MBU any approvals of applications for building, zoning,
planning, development or otherwise under Applicable Laws of whatever nature applicable to the
planning, design, construction, development and/or operation of the Stadium.
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(C) Notwithstanding and prevailing over any contrary provision in this
Agreement or any other Lease Agreement, any City covenant or obligation that may be contained
in this Agreement shall not bind the City Commission, or any other City, county, federal or state
department or authority, committee or agency (i.e., any Governmental 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 by the City or other applicable Governmental
Agencies in the exercise of its/their police power(s). In no event shall the City have any obligations
or liabilities to MBU under this Agreement or otherwise on account of the City's exercise of its
sovereign prerogatives and rights and regulatory authority (quasi-judicial or otherwise) as a City
under Applicable Laws.
2.9 Conformitv of Plans. Plans and Specifications and Construction Plans, and all
work by MBU with respect to the Stadium Property and MBU's design, development and
operation of the Improvements thereon shall be in conformity with this Agreement and Applicable
Laws.
2.10 Design Plans, Review and Approval Process.
(A) Schematic Design Packaee. MBU shall submit to the City schematic
design plans for the initial construction of the Stadium and Improvements, setting forth conceptual
site layouts and plans, sections and elevations (the "Schematic Design Package"). The Schematic
Design Package shall be submitted to the City in the form of a CAD file, together with a pdf copy,
by email, and two (2) hard copy prints. The City shall have a period of thirty (30) days following
receipt of the Schematic Design Package and fifteen (15) Business Days following receipt of any
revisions thereto within which to review and approve or disapprove the Schematic Design Package
or any such revisions in accordance with the City Manager Approval Procedures; provided,
however, that if the City shall not have responded to MBU with the City's written approval or
disapproval of the Schematic Design Package or any revisions thereto within such thirty (30) day
period (or as to revisions, such fifteen (15) Business Day period), the City shall be deemed to have
approved such Schematic Design Package or revisions.
(B) Final Plans. Upon approval by the City of the Schematic Design Package,
MBU shall cause the completion of the applicable Stadium Project plans for construction and
permitting of the Improvements. During this timeframe, the City shall have the right to review and
provide input at the following milestones: 25%, 50%, 75% and 100% of the complete design; and
25%, 50%, 75% and 100% of the completed construction documents (the "Final Plans"). The
foregoing shall be submitted to the City, for review and input, at the foregoing milestones in the
form of a CAD file, together with a pdf copy, by email, and two (2) hard copy prints. The Final
Plans shall be subject to the City's prior approval in accordance with the City Manager Approval
Procedures. The City shall not unreasonably withhold, delay, condition or deny its approval of the
Final Plans or any revisions thereto to the extent that such Final Plans substantially conform in all
material respects to the Schematic Design Package and the Stadium Project Requirements or any
revisions thereto approved by the City. The Final Plans for the Stadium Property, as approved by
the City pursuant to this Section 2.10(B), are herein referred to in this Agreement as the "Plans
and Specifications."
2.11 Chance Orders.
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(A) Non -Material Changes. In the course of the design or construction of the
Stadium and the Improvements as set forth in the Stadium Project Requirements, MBU may make
modifications to the Plans and Specifications that do not constitute a Material Change without the
approval of the City, provided that MBU provides a written notice to the City describing the
modifications and explaining why they do not constitute a Material Change. In the case of a
Material Change, the review process of Section 2.11(B) shall apply.
(B) Change Order Approval. All Change Orders shall be subject to the
reasonable executed approval of the City. Before entering into any Change Order, MBU shall
review and analyze such proposed Change Order and deliver to the City a description of the
proposed change to the Final Plans or Stadium Project Requirements; ("Change Order
Documentation'). MBU shall send Change Order Documentation pursuant to Section 2.11(C).
Subject to the first sentence of this Section 2.11(B), if the City fails to approve or reject a valid
Change Order within five (5) Business Days (which such response may be via handwritten or
electronic signature and transmitted by email correspondence), the Change Order is deemed
approved by the City, and MBU shall execute it. If the City rejects the proposed Change Order,
the City shall specify the basis for disapproval. If the City rejects the following Change Orders,
such rejection will be deemed unreasonable: Change Orders that (i) are materially consistent with
the Stadium Project Requirements or (ii) do not cause the Stadium Project Budget to be exceeded
or further exceeded. If MBU wishes to dispute such disapproval, the dispute shall be resolved by
the dispute resolution provisions under Section 9.12. Notwithstanding the foregoing, the City shall
have the right to reject any Change Order that would materially delay the Completion Deadline or
would reduce the Stadium Project or otherwise cause the revised Stadium and Improvements not
to remain generally consistent with Comparable MLS Stadiums.
(C) Change Order Approval Process. MBU shall send Change Order
Documentation to the City, via email, overnight courier service, or hand delivery. The first line of
the email (or transmittal letter if by overnight courier service or hand delivery) shall be a separate
paragraph that states the following in all caps and bold, "CHANGE ORDER APPROVAL
REQUIRED WITHIN FIVE BUSINESS DAYS". If the proposed Change Order involves a
deviation from the Stadium Project Requirements, then MBU shall include the following language
in all caps and bold in the email (or transmittal letter if by overnight courier service or hand
delivery), "THIS CHANGE ORDER INCLUDES A STADIUM PROJECT REQUIREMENTS
CHANGE" and shall provide a brief description of the proposed change. If sent by email after 5pm
Eastern, the response period shall not commence until the following Business Day. A Change
Order request that does not comply with the foregoing requirements shall be invalid and no
response is required by the appropriate representative(s). For approval requests sent by overnight
courier, the response period shall run from the date of delivery.
(D) Citv Change Order. Any deviations in the actual costs or financing of the
Stadium Project shall be at the sole cost and expense of MBU. Notwithstanding the foregoing, the
City may provide Change Orders to MBU. MBU shall make any Change Orders that are required
to comply with the final permitted set of Final Plans and Applicable Laws, or are required by
permitting or zoning requirements. MBU shall only make Change Orders requested from the City
that are not required due to Applicable Law or permitting or zoning if (x) such Change Orders do
not delay projected completion beyond the Completion Deadline and (y) the City funds such
changes.
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(E) Chance Order Reports. In accordance with Section 2.12, MBU shall
provide, or cause the Contractor to provide, the City with a monthly report listing of all Change
Orders with sufficient details to enable the review by the City of the Change Orders for consistency
with the terms of this Agreement.
2.12 Monthlv Meetines. MBU agrees to keep the City informed regarding the progress
of the Stadium Project, including any material issues that may impact the foregoing or the schedule
for completion of the Stadium through monthly meetings that are scheduled at mutually agreeable
dates with the City, and any other meetings reasonably requested by the City. The City will monitor
the Stadium Project and MBU shall cause the Design Professional to provide the City with
information regarding the progress of the design through each design phase, and shall cause the
Contractor to provide the City with information regarding the progress of the construction of the
Stadium through monthly status reports from the Contractor. In addition to the foregoing, MBU
shall provide or cause to be provided to the City monthly progress reports, in a form reasonably
acceptable to the City, relating to the actual costs incurred during the preceding month, including
all expenditures by MBU during the preceding month. Any rights that the Parties have under this
Section 2.12 shall not be the basis for any liability to accrue to the City for such monitoring or
investigation or for the failure to have conducted such monitoring or investigation.
2.13 Permit and Entitlement Avoroval.
(A) Unless otherwise exempted by Applicable Law, (i) promptly following the
Effective Date, the City shall commence and shall diligently pursue the approval of a replat (the
"Replat") of the Demised Property for the purpose of:
(i) abandoning and/or relocating those easements located within the
Stadium Property which would interfere with the construction or location of the Stadium,
Improvements or the Required Infrastructure;
(ii) abandoning the rights of way currently located within the Stadium
Property.
Except as otherwise provided herein, MBU shall undertake all obligations incurred in
connection with the approval and recordation of the Replat and the vacation and closure of any
rights-of-way set forth by the existing plat for the Stadium Property. The City, as the owner in fee
simple of the Stadium Property, shall, at no cost or expense to the City, give its reasonable
cooperation to MBU in connection with MBU's pursuit of approval of the Replat.
(B) MBU recognizes that time is of the essence with respect to the construction
of the Stadium and the procurement of the Permits and Entitlements (the "Approvals"), which
may include, if applicable, without limitation: (i) re -zoning, warrant, or exception applications, (ii)
road/alley closure and relocation petitions, (iii) re -platting petitions, (iv) environmental and water
and sewer agreements or approvals, and (v) petitions to relocate all public and private utilities,
including, without limitation, electric, gas, cable, telecommunication, water, sewer, and storm
drainage facilities, located within the Stadium Property to areas to be located outside the boundary
of the Stadium Property.
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(C) The City, solely in its proprietary capacity as the fee simple owner of the
Stadium Property, shall act reasonably to expedite any City applications for Permits or
Entitlements in connection with the permitting and construction of the Stadium to allow for the
undelayed completion of the Stadium, and shall endeavor dedicate at least one member of its
building permit staff or other appropriate staff to serve as a liaison for the Stadium Project to
expedite the permitting process and other review and approval processes.
2.14 MBU Development Obliations. The Department's and/or the City's approval of
the Stadium Project Requirements and Plans and Specifications pursuant to this Agreement shall
not relieve MBU of its obligations under law to file such Plans and Specifications with any
department of the City or any other Governmental Agency having jurisdiction over the issuance
of Permits and to take such steps as are necessary to obtain issuance of such Permits. In connection
with the foregoing, MBU agrees to comply, in all material respects, with all lawful obligations
imposed by the City or other Governmental Agency having jurisdiction over the issuance of
Permits. MBU acknowledges that any approval given by the Department or the City pursuant to
this Article 2, shall not constitute an opinion or agreement by the City that the Construction Plans
are structurally sufficient or in compliance with any laws or ordinances, and no such approval shall
impose any liability upon the City.
2.15 Conditions Related to the Notice to Proceed and Commencement of
Construction.
(A) Pre -Construction Maintenance. At all times prior to construction, the
Stadium Property shall be maintained in a reasonably neat manner (taking into account the work
being performed).
(B) Conditions Precedent to Notice to Proceed and Commencement of
Construction. Before issuance of a Notice to Proceed and the Commencement of Construction of
the Stadium Project, and in addition to the submission and approval process specified in Article 2
for construction generally, MBU hereby agrees that it shall satisfy all of the following conditions
precedent with respect to the Stadium Project:
(i) MBU shall have submitted to the City, the Plans and Specifications
with respect to the Stadium and Improvements to be constructed on the Stadium Property for the
applicable phase or sub -phase of construction, pursuant to Section 2.10;
(ii) MBU shall have entered into a valid and binding
Construction Contract, for the construction of the Stadium and Improvements on the Stadium
Property and MBU shall have remitted to the Department, in electronic format and as a hard copy,
copies of any such Construction Contract, as well as any other material contracts with contractors
related to the Stadium Project, any Design Contract, and any Consultant Contract. Any such
contract shall state within its terms that: (a) the City shall be a third party beneficiary thereunder;
(b) it shall be subject in all respects to the Stadium Agreements, and in the event of any conflict
between such contract and the Stadium Agreements, the Stadium Agreements shall govern; and
(c) MBU (or the MBU Affiliate entering into such contract) shall have the right to terminate or
modify such contract in the event that the City provides notice to MBU that such contract (or a
provision thereof) conflicts with the Stadium Agreements;
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(iii) All Governmental Agencies shall have given their development
approvals necessary for commencement of construction of the Stadium and Improvements on the
Stadium Property and have issued all material Permits necessary for the construction of the
Stadium and Improvements. MBU shall remit to the Department, in electronic format and as a hard
copy, copies of such granted approvals;
(iv) The Environmental Work and the Park Work shall have been
completed;
(v) The Transportation Management Plan shall have been agreed upon
by the Parties;
(vi) MBU shall have obtained all necessary approvals with regard to the
Team, Stadium, or any other aspect or licensing requirements from MLS; and
(vii) MBU shall have satisfied such other conditions as the City may
reasonable require
(C) Progress of Construction, Site Conditions. Subsequent to the
Commencement of Construction, MBU shall submit reports to the Department, quarterly or at
some other greater frequency reasonably and mutually agreed to by the Parties to this Agreement,
of the progress of MBU with respect to development and construction of the Stadium Project.
MBU, by executing this Agreement, represents it has visited the site, is familiar with local and
other conditions under which the construction and development is to be performed, will perform
or cause the performance of all test borings and subsurface engineering, and all other testing,
inspection and engineering, generally required at the site under sound and prudent engineering
practices, and will correlate the results of the test borings and subsurface engineering and other
available studies and its observations with the requirements of the construction and development
of the Improvements and the Stadium Project. The City makes no warranty as to soil and/or
subsurface conditions or any other conditions of the Stadium Property.
2.16 Easement Rights related to Demised Proverty; Access to Stadium Property.
Contemporaneously with the execution of this Agreement, the City is granting to MBU the
Easements set forth in Section [5.14] of the Master Lease.
2.17 Connection of Buildings to Utilities. MBU, at its sole cost and expense, shall
install or cause to be installed all necessary connections between the buildings constructed or
erected by it on the Stadium Property, and the water, sanitary and storm drain mains and
mechanical and electrical conduits and other utilities, whether or not owned by the City (but which
may be owned by Miami -Dade Water and Sewer Authority or any other Governmental Agency).
MBU shall pay for all costs, if any, associated with locating and installing such connections and
new facilities for sewer, water, electrical, and other utilities as needed to service the Stadium
Property.
2.18 Ownership of Improvements. The Stadium and Improvements and material and
equipment provided by MBU that are incorporated into or become a part of the Stadium Project
(i.e., immovable fixtures) shall, upon being added thereto or incorporated therein, and the Stadium
Project itself, be and remain the property of MBU for the Term of the Stadium Agreements, except
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as otherwise provided in the Stadium Lease. At the expiration or termination of the Term of the
Stadium Lease, all the Improvements and immovable fixtures (specifically excluding the personal
property and movable fixtures of MBU) shall become the property of the City, except as otherwise
provided in the Stadium Lease.
2.19 Off -Site Public Improvements. Any off-site improvements required to be funded,
designed, developed, constructed or contributed by any Applicable Laws as a result of MBU's
development of the Stadium Property (all of which may be considered as part of the Required
Infrastructure) shall be funded, designed, developed, constructed or contributed at no cost to the
City. Notwithstanding any other provision in this Agreement to the contrary, City shall assist MBU
in obtaining impact fee credits for such Required Infrastructure as completed by MBU that
otherwise qualify for impact fee credits or reimbursements under the applicable Codes of the City
and Miami -Dade County.
2.20 Desienation of the Citv's Representative. Except as otherwise specifically
provided for in this Agreement, the City Manager or his/her designee shall have the power,
authority and right, on behalf of the City, in its capacity as the City hereunder, and without any
further resolution or action of the City Commission to, so long as such approvals or actions are
consistent with Section 9.5 of this Agreement:
(A) Review and approve, in writing, documents, the Schematic Design Package,
Plans and Specifications, applications (not including funding applications), requests, estoppels and
joinders and consents required or allowed by MBU to be submitted to the City in accordance with
the existing terms of this Agreement;
(B) Consent to and approve in writing, actions, events, and undertakings by
MBU for which consent or approval is required from the City under the existing terms of this
Agreement;
(C) Make appointments of individuals or entities required to be appointed or
designated by the City in this Agreement;
(D) Execute any and all ministerial documents on behalf of the City necessary
or convenient to the foregoing approvals, consents, and appointments; and
(E) Execute on behalf of the City the documents, authorizations, and consents
set forth in this Article 2.
2.21 Transportation Management Plan Attached as Exhibit C is a summary of the
components of the initial transportation management plan for the Stadium Project, including the
initial plans for the management of traffic during events held at the Stadium (the "Transportation
Management Plan"). The Parties shall work together, at MBU's sole cost and expense, with
applicable Governmental Agencies having jurisdiction related thereto, to finalize the
Transportation Management Plan prior to obtaining a Certificate of Occupancy for the Stadium.
The final Transportation Management Plan will consist of strategies to minimize the impact of the
Stadium Project on the surrounding communities and shall address, among other matters, the
following: on-site parking opportunities; pedestrian connectivity to the Public Park Parcel from
the residential areas adjacent to the Parent Tract; incentives to be provided to patrons of the
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Stadium for use of public transportation; parking enforcement and parking exclusion areas for the
residential areas adjacent to the Parent Tract on Home Match days and during Stadium events;
strategies for minimizing the flow of cut through traffic through the residential areas adjacent to
the Parent Tract on Home Match days and during significant Stadium events; clearly defined roles
and responsibilities for implementation of the Transportation Management Plan; and standards for
minimizing adverse impact to surrounding communities related to hours, noise, and other quality
of life issues.
2.22 Landscanine, Roadways; Horizontal Control. MBU shall be required to install
landscaping on the Stadium Property and roadways, if any, as set forth in the Plans and
Specifications. The landscaping and roadways shall be completed by MBU no later than the date
of issuance of a final Certificate of Occupancy. The roadways, if any, shall be completed by the
time such roadways are needed for the Stadium to open for business. Final horizontal control
elevation ("Horizontal Control") shall mean the lowest occupiable elevation of the Stadium
Project, including loading dock. The City acknowledges and agrees that Horizontal Control shall
be reasonably acceptable to MBU, based on (i) reasonable and competitively priced insurance
availability, (ii) regulatory agencies' approvals, (iii) financing entities' approvals, (iv) feasibility
of accommodating direct connections to basement back of house of each individual component,
and (v) feasibility of accommodating reasonable and customary directional pedestrian slopes at
ground floors and entry and exit roadways, without the need of stairs or handicapped ramps, in
order to accommodate sheet drainage flow. Subject to applicable permitting requirements, MBU
shall provide transition features such as drainage culverts, pumps, and/or utility modifications, if
required, at north -south transitions to roadways on the perimeter of the Stadium Property. Such
features may be located within the roadways.
2.23 Maintenance of Construction Site. MBU shall maintain its construction site in a
safe condition and a reasonably orderly manner and shall, as reasonably necessary, remove all
major debris on a regular basis (including debris that has accumulated on adjacent lands, parcels
or streets if created by MBU; it being understood that in no event shall the same be deemed to be
permission to store debris on any such adjacent lands, parcels or streets) and store all equipment
in a neat manner when not in use.
2.24 Construction Traffic, Coordination. MBU shall keep driving lanes or extension
roads and pedestrian access walkways located on or near the Stadium Property relating to the
Stadium Project free from storage of equipment, building materials and dirt. MBU may relocate
roads and walkways and barriers located within the Stadium Property to other reasonable locations
with [three (3) days'] advance notice to any ombudsman and/or consultant inspector. [CITY:
OKAY?]
2.25 Avoidance of Nuisance. To the extent practical in connection with a project of this
size and scope, MBU shall take such precautions as may be reasonably necessary to minimize the
impact of noise, dust, truck traffic, nuisances and other consequences of construction activities.
The City may, at MBU's sole cost and expense, install a barrier or fence around attractive
nuisances if MBU fails to do so within ten (10) days after the City's demand therefor. Such
construction fence may be relocated by MBU from time to time, at MBU's expense.
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2.26 Covenant Aeainst Waste. MBU covenants not to allow any waste (as defined by
any Applicable Law) with respect to the Stadium Property or any part thereof The provisions of
this Section 2.26 shall not apply to any demolition or disfigurement required in connection with
repairs, renovations, upgrading or new construction in accordance with the terms of this
Agreement, or to the deposit of clean fill at the Stadium Property or the removal of fill from the
Stadium Property for such purposes.
2.27 Art in Public Places. The Stadium Project shall be subject to the Art in Public
Places provisions set forth pursuant to Section 2.11.15 of the Miami -Dade County Code (the
"County Code"), and pursuant to the Dade County Guide to Art in Public Places (the "Guide").
The 1.5% of all capital costs (as defined by the County Code) of the Stadium Project shall be
conveyed to Miami -Dade County Art in Public Places for the implementation of the Art in Public
Places program and the contract(s) with the artist(s) for the Stadium Project shall be between the
artist(s) and the Art in Public Places Trust in accordance with the County Code and the Guide. Art
in Public Places will work collaboratively with the City and MBU on the implementation of the
Art in Public Places program pursuant to the requirements of the County Code and pursuant to the
Guide.
2.28 Inspection of Property.
(A) Richt of Inspection. The City, its agents, employees and authorized
representatives may enter the Stadium Property at any time in response to an emergency, and at
reasonable times upon reasonable prior written notice, as the City deems necessary to, incident to,
or connected with the performance of the City's duties and obligations hereunder or in the exercise
of its rights and functions, including, without limitation, to inspect the operation, sanitation, safety,
maintenance and use of the same, or any portions of the same, and to assure the City that MBU is
in full compliance with its obligations under this Agreement (but the City shall not thereby assume
any responsibility for the performance of any of MBU's obligations hereunder, nor any liability
arising from the improper performance thereof). In furtherance and not in limitation of the
foregoing, the City and its agents, employees and authorized representatives shall have the right
of access to the Stadium Property, upon reasonable prior written notice, to conduct from time to
time an ADA inspection or audit of the Stadium Property or the Improvements, and MBU agrees
to cooperate in the conduct of such investigation or audit.
(B) Compliance. If any inspection or audit detects a violation of MBU's
obligation to comply and to keep the Stadium Property and/or the Stadium in compliance with the
requirements of this Agreement (including, without limitation, the requirement that the Stadium
Property and the Stadium be in compliance in all material respects with the ADA), then MBU shall
bear the cost and take whatever action is reasonably necessary to comply, and bring the Stadium
Property and/or the Stadium into compliance, with this Agreement; and any reasonable fee or cost
incurred by the City for such investigation or audit shall be borne by MBU and shall be paid by
MBU as additional Rent under the Stadium Lease on demand by the City.
(C) Action by the Citv. If MBU fails to keep the Stadium Property or the
Stadium in compliance with the requirements of this Agreement (including, without limitation, the
requirement that the Stadium Property and the Stadium be in compliance in all material respects
with the ADA) and an Event of Default has occurred and is continuing on account thereof, then
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the City, upon reasonable prior written notice to MBU, may take whatever action is reasonably
necessary to bring the Stadium Property and/or the Stadium into compliance, to the extent required
by Applicable Laws. MBU agrees to provide the City access to the Stadium Property and the
Stadium and pay, as additional Rent under the Stadium Lease, all costs reasonably incurred by the
City in bringing the Stadium Property and/or the Stadium into such compliance. The City,
however, shall have no obligation to bring the Stadium Property or the Stadium into compliance
and nothing herein shall be construed as creating such an obligation on the City.
(D) Minimizine Interference with Business Operations. Any inspection or
audit described in this Section 2.28 shall be done in such a manner so as to reasonably minimize
any interference with any business operations on the Stadium Property.
ARTICLE 3
STADIUM FINANCING
3.1 Stadium Financine. MBU shall fund the development of the Stadium at no cost to
the City. For avoidance of doubt, the City will have no obligation to pay for any portion of the
development of the Stadium Property. To the extent MBU seeks federal, state or county economic
or environmental incentives, the City shall not be responsible for any matching contributions. The
Stadium Parties anticipate a total Stadium Project budget not to exceed $[] (the "Stadium
Project Budget"). The City shall have the right to review all financing documents related to
financing of the Stadium and to participate in meetings and other activities related to such
financing as the Stadium Parties may deem reasonably appropriate. MBU shall not structure its
financing documents to permit a lien or encumbrance upon the Stadium Property without the City's
consent, which may be withheld at the City's sole discretion. MBU shall be required to procure
any entitlements by [ I (the "Funding Deadline"). All financing must be
completed prior to the Funding Deadline.
3.2 Stadium Construction Account, Citv Securitv. MBU shall enter into a Custodian
Agreement in order to establish a Stadium construction account (the "Stadium Construction
Account") prior to the Funding Deadline and shall maintain such Stadium Construction Account
until all funds deposited therein are applied in accordance with such Custodian Agreement and the
Stadium Project is substantially complete. The amount of funds in the Stadium Construction
Account as of the Funding Deadline shall be equal to 110% of the Stadium Project Budget. The
Custodian Agreement shall provide that the Stadium Construction Account and moneys on deposit
therein (i) shall be kept separate and apart from all other funds and accounts of MBU, (ii) shall be
withdrawn, used and applied solely for the payment of actual Stadium Project costs and as
otherwise expressly provided in this Agreement and the Custodian Agreement, (iii) shall be
invested solely in conservative investments that may not reduce the amounts deposited into the
Stadium Construction Account and may be immediately withdrawn for the purposes contemplated
by this Agreement, and (iv) shall be free and clear of all liens, claims and charges, except for
encumbrances established pursuant to the Custodian Agreement committing monies on deposit in
the Stadium Construction Account to pay actual Stadium Project costs. The City shall have
reasonable audit and review rights over the Stadium Construction Account. Before MBU
Commences Construction of the Stadium, MBU shall (or cause its prime contractor(s) to) record
in the public records of Miami -Dade County, Florida, a payment and performance bond equal to
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110% of the total cost of construction of the Stadium, as reflected in the construction contract
between MBU and such prime contractor(s) (the "Payment and Performance Bond"). Each
Payment and Performance Bond shall be in compliance with Applicable Laws, including the
applicable provisions of Section 255.05, Florida Statutes, and shall be issued through a surety
authorized to do business in the State of Florida. The rights of the City under all Payment and
Performance Bonds shall be subordinate to the rights of any lender providing construction
financing to MBU. MBU shall have the right, from time to time, to substitute or replace, or cause
its prime contractor to substitute or replace, such Payment and Performance Bonds as deemed
necessary by MBU for any portion of the work. Alternatively, MBU may satisfy the requirements
to provide a Payment and Performance Bond by providing the City with an alternate form of
security in the form of a certified check that the City may deposit in a the City -controlled bank
account or an irrevocable letter of credit in a form and for an amount that is acceptable to the City
("Alternative Security"), to remain in place until evidence reasonably satisfactory to the City is
submitted to demonstrate all contractors performing work related to the have been paid and the
Stadium has reached Completion of Construction. The Alternative Security shall comply with the
requirements of Section 255.05(7), Florida Statutes. MBU shall be responsible for cost overruns
above the Stadium Project Budget.
3.3 Guarantor. MFP shall guarantee MBU's obligations under this Agreement,
including but not limited to the obligation to fund the development of the Stadium and the Stadium
Proj ect.
ARTICLE 4
ENVIRONMENTAL COMPLIANCE
4.1 For purposes of this Article 4, the following additional definitions shall apply:
(A) "On" or "in" means when used with respect to the Stadium Property means
"on, in, under, above or about."
(B) "Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment
at or from the Stadium Property, including migration to adjacent land, subsurface geology, surface
water, or ground water.
4.2 Responsibility for Environmental Conditions.
(A) Responsibility of Parties. The City and MBU acknowledge that
Environmental Conditions are or may be present on the Stadium Property and that complete
remediation of all Environmental Conditions or violations of Environmental Laws prior to or
during the Term are the obligations of MBU alone. Except as specifically described in Section
4.2(B) with respect to any gross negligence or willful breach of this Agreement by City during the
Term and after MBU's delivery to City of the NFA and completion of the Environmental Work
by MBU, the City shall have absolutely no obligation, liability, cost or expense whatsoever in
connection with any Environmental Condition or violation of Environmental Laws.
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(B) Remediation of Hazardous Material Release after MBU's Delivery of
NFA and during the Term of the Agreement. If any Hazardous Materials are released or
discharged on or about the Demised Property in violation of Environmental Law (a "Hazardous
Materials Release") at any time during the Term, the Party discovering same shall promptly notify
the other Party orally within forty-eight (48) hours of discovery and in writing within five (5)
Business Days thereafter pursuant to Article 8. Unless the Environmental Condition was caused
by the gross negligence or the willful misconduct of the City after MBU's delivery to City of the
NFA and completion of the Environmental Work by MBU (in which case it shall be City's
obligation to remedy same at the City's cost), then MBU shall promptly take all actions to
remediate and resolve such Environmental Condition, at its sole expense, in compliance with
Environmental Law on the affected portion of the Demised Property.
(C) Third Party Liability. Nothing herein shall be construed to limit the
responsibility of third parties who are potentially responsible parties ("PRPs") for liability which
may be imposed against such PRPs for any Environmental Condition. The existence of any such
PRPs shall not release MBU from its responsibility for an Environmental Condition, as between
the City and MBU hereunder, but MBU shall have the right to pursue recovery against such PRPs.
(D) MBU Environmental Indemnity. MBU shall defend, indemnify, and hold
harmless the City and its agents, officials, and employees, to the fullest extent permitted by law,
from and against all expenses of remediation, disposal or other similar type of clean up or action
necessary for compliance with the Environmental Laws, and any and all claims, causes of action,
or demands, in law or in equity, including, but not limited to, all lien claims, administrative claims,
claims for injunctive relief, claims of property damage, natural resources damages, environmental
response and clean-up costs, fines, penalties, and expenses (including, without limitation, counsel
fees, consultant fees and expert fees, costs and expenses incurred in investigation and defending
against the assertion of such liabilities), which may be sustained, suffered or incurred by the City,
its agents, officials or employees.
(E) MBU's Breach. If MBU breaches any of its obligations contained in this
Article 4 or fails to notify the City of the release of any hazardous or toxic substances from the
Stadium Property, then, in addition to all other rights and remedies available to the City, the City
shall have the right to initiate a clean-up of the Stadium Property, in which case the City shall be
reimbursed by MBU for, and indemnified by MBU from, any and all costs, expenses, losses, and
liabilities incurred in connection with the clean-up (including all reasonable attorneys' fees) by the
City. In the alternative, the City may require MBU to clean up the Stadium Property and to
indemnify fully and hold the City harmless from any and all losses, liabilities, expenses (including
but not limited to reasonable attorneys' fees), and costs incurred by the City in connection with
MBU's clean up action. Notwithstanding anything in this Article 4, MBU agrees to pay, and shall
indemnify defend, and hold the City harmless from and against, any and all losses, claims,
liabilities, costs, and expenses (including reasonable attorneys' fees) incurred by the City as a
result of any breach by MBU of its obligations under this Article 4, and as a result of any
contamination of the Stadium Property because of MBU's, its employees', agents', contractors',
licensees' or sublessees' use of hazardous or toxic substances on the Stadium Property. If the City
shall have reason to believe that a hazardous or toxic substance has been discharged on the Stadium
Property by MBU, its employees, agents, contractors, sublessees or licensees, the City shall have
the right, in its sole discretion, to require MBU to perform periodically to the City's satisfaction
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(but not more frequently than annually unless an environmental complaint from applicable
governmental authorities shall be then outstanding), at MBU's expense, an environmental audit
and, if deemed necessary by the City, an environmental risk assessment of: (a) the Stadium
Property, (b) hazardous substance management practices, and/or (c) hazardous substance disposal
sites used by MBU. Said audit and/or risk assessment must be by an environmental consultant
reasonably satisfactory to the City. Should MBU fail to perform any such environmental audit or
risk assessment within thirty (30) days after the City's request, the City shall have the right to
retain an environmental consultant to perform such environmental audit or risk assessment. All
costs and expenses incurred by the City in the exercise of such rights shall be secured by this
Agreement and shall be payable by MBU upon demand as Rent.
4.3 [Remediation Standards.]
(A) [CITY: ACCEPTABLE?] The Environmental Activities required by this
Agreement shall be conducted by MBU using risk-based corrective action principles to achieve
the NFA Determination pursuant to this Agreement. [The City hereby consents to such risk-based
corrective action for a non-residential property, including the implementation of reasonable
Institutional Controls with respect to the Demised Property in connection with obtaining a No
Further Action Determination. The City hereby consents to a limitation of the use of the Demised
Property to non-residential purposes and the prohibition of potable or irrigation wells on the
Demised Property; the City consents, and will not object, to any reasonable Institutional Control
needed to achieve the No Further Action Determination, unless it could materially impair the
current non-residential use of the Demised Property that is the subject of the Institutional Control
or other restriction. Upon the written request of MBU, the City shall execute such covenants or
declarations of restrictions as required by Governmental Agencies in furtherance of the NFA
Determination, which covenants and declarations of restrictions may encumber the Demised
Property, or such property owned or controlled by the City adjacent to the Demised Property. The
City shall further execute and deliver such other agreements, certificates, instruments and
documents, each as MBU may reasonably request in order to obtain an NFA Determination;
provided, however, that any out-of-pocket costs incurred by City associated therewith (and
approved by MBU in writing) shall be reimbursed by MBU to City.]
(B) The City shall promptly execute such documents identified by MBU as
reasonably necessary to effectuate an Institutional Control, designation of a Brownfield, approval
of a BSRA, or other documentation, to achieve the NFA Determination.
(C) MBU and City shall both agree in writing in advance on the approach and
pace of clean-up Environmental Activities required by this Agreement pursuant to applicable
Environmental Law. MBU shall expeditiously commence such Environmental Activities and
diligently pursue efforts to remediate under applicable Environmental Law.
(D) The City shall, as reasonably requested by MBU, grant to MBU and its
Environmental Representatives a license to enter the Demised Property at reasonable times after
providing written notice for the purpose of performing the Environmental Activities pursuant to
the terms of this Agreement. Subject to its approval of time, location and manner, the City further
grants to MBU a license to place, store and operate all equipment necessary for such
Environmental Activities; provided that such placement, storage and operation shall remain no
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longer than necessary, shall comply with all Applicable Laws and regulations, shall not materially
interfere with or disrupt the City's operations, and shall otherwise be reasonably acceptable to
City.
(E) MBU shall obtain all permits or approvals necessary to perform the
Environmental Activities and environmental work contemplated herein. To the extent available
and not interfering with City intentions, the City shall allow MBU's Environmental
Representatives to use existing utilities, including, without limitation, water and electrical power
necessary to operate such systems; provided, however, that MBU shall reimburse the City for the
cost of such utility expenses to the extent they can be reasonably ascertained. MBU shall bear
responsibility for lawful storage and disposal of any wastes derived from such Environmental
Activities (and shall serve as the generator of such wastes) and upon completion of the
Environmental Activities, MBU shall restore the Demised Property, as remediated, to substantially
its condition prior to the commencement of such Environmental Activities.
(F) MBU, with the advance written consent of City in each instance, shall take
the lead in communicating and setting meetings with Governmental Agencies regarding MBU's
Environmental Activities related to the Demised Property. Unless required by Applicable Law, the
City shall not initiate or set any meetings with any Governmental Agency regarding MBU's
Environmental Activities without prior written notice to, consultation with and the consent of
MBU, which consent shall not be unreasonably withheld or delayed. Such consent is expressly
conditioned upon MBU's participation in, and taking lead of, any such communications. [CITY:
OKAY?]
(G) MBU shall provide a copy to the City of all material reports, remedial action
plans, reliance letters, correspondence and filings by MBU concerning a Release and/or the
Environmental Activities that have been or are to be conducted ten (10) Business Days prior to
being filed with or delivered to any Governmental Agency with jurisdiction over such
Environmental Activities. MBU shall provide a copy of all written correspondence received from
such Governmental Agency in response thereto no later than ten (10) Business Days following
receipt.
ARTICLE 5
INSURANCE AND INDEMNIFICATION
5.1 Insurance. [Insurance provision to mirror Master Lease following comment
thereto from the City.]
ARTI LE 6
COMPLIANCE WITH APPLICABLE LAWS, LIMITATIONS OF LIABILITY
6.1 Compliance by MBU. MBU, at MBU's sole cost and expense, shall promptly
comply, or shall cause others (such as permitted contractors) to promptly comply, with all
Applicable Laws, including all Applicable Laws that may apply to the development and
construction of the Stadium and Stadium Project.
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6.2 Contest by MBU. MBU shall have the right, after prior written notice to the City,
to contest the validity or application of any Applicable Laws by appropriate legal proceedings
diligently conducted in good faith, in the name of MBU without cost or expense to the City, and
shall indemnify the City for any consequences therefrom. If counsel is required, the same shall be
selected and paid by MBU.
6.3 Limitation of Liabilitv of the Citv. The City shall not be liable to MBU for any
incidental, consequential, special or punitive loss or damage whatsoever.
6.4 Limitation of Liabilitv of MBU. MBU shall not be liable to the City for any
incidental, consequential, special or punitive loss or damage whatsoever.
ARTICLE 7
DEFAULT
7.1 Events of Default of MBU. Each of the following shall be an event of default under
this Agreement:
(A) MBU fails to make any payment of monies payable to the City under this
Agreement when and as the same shall become due and payable and such default shall continue
for a period of five (5) days after written notice thereof from the City to MBU (a "Monetary
Default"); 2
(B) MBU fails to meet the Completion Deadline;
(C) MBU fails to maintain any of the insurance coverage required hereunder or
pay any of the premiums required to be paid with respect thereto, and such occurrence or failure
continues for a period of fifteen (15) days after notice thereof given to MBU by the City;
(D) MBU fails to keep, observe and/or perform any other covenant or agreement
of this Agreement, and does not cure such failure within thirty (30) days after written notice thereof
from the City to MBU; or in the case such failure is not susceptible to cure within thirty (30) days,
such longer period, not to exceed a total of 90 days, as may be reasonably necessary to cure such
failure, provided MBU promptly commences the cure and diligently pursues it to completion as
soon as reasonably possible;
(E) MLS terminates, rescinds or otherwise does not permit MBU to continue to
have and maintain the rights to an MLS team in South Florida;
(F) MBU or any guarantor is dissolved without the City having permitted a
successor to the rights under this Agreement;
2NTD: City to consider language limiting MBU's right to notice where there are repeated defaults of the same type.
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(G) any representation made hereunder shall prove to have been incorrect in any
material respect when made;
(H) a default occurs under any other Lease Agreement, including, but not
limited to, the Non -Relocation Agreement, the Master Lease, and the Stadium Lease;
(I) any guarantor defaults under any guaranty of this Agreement;
(J) MBU or any guarantor or surety for MBU's obligations under this
Agreement becomes bankrupt or insolvent or makes a general assignment for the benefit of
creditors or takes the benefit of any insolvency act, or if any debtor proceedings be taken by or
against MBU or any guarantor or surety;
(K) a receiver or trustee in bankruptcy is appointed for MBU's property and the
appointment is not vacated and set aside within sixty days from the date of the appointment; or
(L) MBU, before the expiration of the Term, and without the written consent of
the City, vacates the Stadium Property or abandons possession of the Stadium Property (with each
of items (b) through (1) being referred to herein as a "Nonmonetary Default"). Monetary Defaults
and Nonmonetary Defaults are sometimes both referred to in this Agreement as an "Event of
Default."
7.2 Remedies and Termination.
(A) Upon the occurrence of any Event of Default set forth in Section 7.1, or any
other failure by a Party hereto (the "Defaulting Party") to perform any of its obligations under
this Agreement, then the other Party (the "Non -Defaulting Party") shall provide notice of such
failure to the Defaulting Party and afford the Defaulting Party a grace period to cure said failure,
as follows:
(i) Where a grace period is specifically provided, that specific
grace period shall apply
(ii) Where a grace period is not specifically provided, the
Defaulting Party shall afford the Non -Defaulting Party a grace period of: (i) ten (10) business days
to cure monetary failure; and (ii) thirty (30) days to cure any non -monetary default; provided,
however, that if any non -monetary failure cannot be cured within such thirty (30) day period, the
Defaulting Party shall be afforded such additional time as shall be reasonably required to cure such
failure, if the Defaulting Party has commenced the appropriate cure within said initial thirty (30)
day period and thereafter proceeds with reasonable diligence to cure said failure.
(iii) If any failure to perform shall not have been cured by the
expiration of the applicable grace period, then an "Event of Default" shall be deemed to have
occurred and the Non -Defaulting Party shall have the rights and remedies set forth in Section
7.2(B) below.
(B) If an Event of Default shall occur, the Non -Defaulting Party shall have the
right but not the obligation to cure such default on behalf of the Defaulting Party, in which event
OMM US:77140289.10
the Defaulting Party shall immediately reimburse the Non -Defaulting Party for all sums paid by it
to effect such cure, together with interest thereon at the annual rate of interest equal to the prime
rate of interest charged by the City's primary financial institution to its commercial customers with
the highest credit rating plus one and one-half percent (the "Default Rate").
(C) If MBU is the Defaulting Party, MBU shall be obligated to pay all
outstanding debts related to the Stadium, and the City shall be paid all revenue generated from the
Stadium until the Event of Default is cured (and the City shall have the audit rights set forth in
Section [4.11] of the Master Lease to ensure that all such revenue is paid to the City). Subject to
Section 7.3, after termination of this Agreement by the City due to an uncured Event of Default
by MBU, MBU shall be liable to the City for Annual Rent through the end of the then applicable
Term of the Stadium Lease, along with any other monetary obligations owing to the City hereunder
by MBU and Impositions that accrued prior to the termination of this Agreement and which was
not paid by MBU.
(D) Termination by Non -Defaulting Party. The Non -Defaulting Party may
file a lawsuit seeking a declaration that it has the right to terminate this Agreement only after
providing the Defaulting Party with thirty (30) days prior written notice that one of the following
events (collectively hereinafter referred to as the "Termination Events") has occurred and is
continuing:
(i) If, by order of a competent authority, a receiver, liquidator
or trustee of Defaulting Party shall be appointed and such receiver, liquidator or trustee shall not
have been discharged within thirty (30) days after the making of such order, or if by decree of such
authority Defaulting Party shall be adjudicated or determined to be bankrupt or insolvent, or if
Defaulting Party shall file a petition in voluntary bankruptcy, shall make an assignment for the
benefit of or enter into a composition with its creditors, shall seek to terminate its existence or shall
otherwise seek to wind up its affairs;
(ii) If Defaulting Party fails to make any payments pursuant to
this Agreement within sixty (60) days following receipt of written notice of such Termination
Event (following the expiration of the grace period set forth at Section 7.2(A)(ii) above); provided
however, Defaulting Party shall have the right to withhold any amounts disputed in good faith until
the settlement of any such dispute; or
(iii) If Defaulting Party breaches any material provision,
agreement or obligation under this Agreement, that is not cured within sixty (60) days after notice
of such Termination Event; provided, however, that if such Termination Event cannot be cured
within such sixty (60) day period, but the Termination Event is capable of cure within a reasonable
period of time which is acceptable to the Non -Defaulting Party, and Defaulting Party diligently
pursues such cure, Defaulting Party shall be allowed such agreed upon time period to cure such
Termination Event.
(E) Cumulative Rights. The remedies heretofore described in this Section 7.2
shall be in addition to any other remedy the Non -Defaulting Party may have at law or in equity in
the event of an Event of Default, including without limitation:
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(i) Any rights and remedies set forth in the Non -Relocation
Agreement, the Stadium Lease, and the other Lease Agreements;
(ii) An action to recover monies then due and owing from the
Defaulting Party, together with interest thereon at the Default Rate, from the date on which such
monies were due;
(iii) An action for specific performance of non -monetary
covenants and agreements on the part of the Defaulting Party; and/or
(iv) An action for recovery of all actual losses, costs and
reasonable attorneys' fees incurred by the Non -Defaulting Party in connection with, arising out of
or in any way related to such default.
7.3 Surrender of Stadium Property. Upon any expiration or termination of this
Agreement in accordance with its terms, including, but not limited to Section 7.2 herein, MBU
shall quit and peacefully surrender the Stadium Property to the City, with all Improvements thereon
and at no cost or expense to the City, unless the City requests the demolition of any Improvements,
in which case MBU shall be obligated to deliver the Stadium Property to the City free and clear of
such Improvements, with its demolition and removal at MBU's expense. Should MBU fail to
properly and/or timely surrender the Stadium Property to the City, then MBU shall be liable to the
City for the Annual Rent (as defined in the Stadium Lease) for the Stadium Property, along with
any other monetary obligations owing to the City hereunder by MBU, and Impositions (those
expenses directly related to the Stadium Property, including, but not limited to, utility charges
maintenance expenses, security expenses, insurance expenses and any special charges levied by a
Governmental Agency), but only for that period of time MBU fails to quit and peacefully surrender
the Stadium Property to the City.
7.4 Events of Default of the Citv. The provisions of Section 7.5 shall apply if any of
the following "Events of Default" of the City shall happen: if default shall be made by the City in
failing to keep, observe or perform any of the duties imposed upon the City pursuant to the terms
of this Agreement and such default shall continue for a period of thirty (30) days after written
notice thereof from MBU to the City setting forth with reasonable specificity the nature of the
alleged breach. In the case of any such default or contingency which cannot, with due diligence
and in good faith, be cured within thirty (30) days, the City fails within said thirty (30) day period
to proceed promptly after such written notice and with due diligence and in good faith to cure said
Event of Default; provided that the maximum period the City may have to cure a default under this
sentence shall not exceed ninety (90) days following the date of MBU's written notice of Event of
Default delivered to the City.
7.5 Failure to Cure Default by the Citv. If an Event of Default of the City shall occur,
MBU, at any time after the period set forth in Section 7.4 shall have the following rights and
remedies which are cumulative:
(A) In addition to any and all other remedies, in law or in equity, that MBU may
have against the City, MBU shall be entitled to sue the City for all damages (as limited by Section
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6.3 above), costs and expenses arising from the City's committing an Event of Default hereunder
and to recover all such damages, costs and expenses.
(B) To restrain, by injunction, the commission of or attempt or threatened
commission of an Event of Default of the City and to obtain a decree specifically compelling
performance of any such term or provision of the Agreement.
(C) MBU may perform the City's obligations hereunder and offset the costs and
expenses incurred by MBU in doing so against rent thereafter coming due hereunder.
ARTICLE S
NOTICES
8.1 Addresses. All notices, demands or requests by the City to MBU shall be deemed
to have been properly served or given, if addressed to [ ], or to such other address and to the
attention of such other party as MBU may, from time to time, designate by written notice to the
City. In order for notices, demands or requests from the City to MBU to be effective, the City shall,
simultaneous with each notice, demand or request submitted to MBU, send a copy of each such
notice, demand or request to the following party: [ ]. If MBU, at any time during the term hereof,
changes its office address as herein stated, MBU will promptly give notice of the same in writing
to the City. All notices, demands or requests by MBU to the City shall be deemed to have been
properly served or given if addressed to the City Manager, or his/her designee, 444 SW 2nd Avenue,
10th Floor, Miami, Florida 33130, with a copy to the City Attorney's Office, Attention: City
Attorney, 444 SW 2nd Avenue, 91h Floor, Miami, FL 33130, and/or to such other addresses and to
the attention of such other parties as the City may, from time to time, designate by written notice
to MBU. If the City at any time during the term hereof changes its office address as herein stated,
the City will promptly give notice of the same in writing to MBU.
8.2 Method of Transmittine Notice. All such notices, demands or requests (a
"Notice") shall be sent by: (a) United States registered or certified mail, return receipt requested,
(b) hand delivery, (c) nationally recognized overnight courier, or (d) facsimile, provided the
transmitting facsimile electronically confirms receipt of the transmission by the receiving facsimile
and the original of the Notice is sent by one of the foregoing means of transmitting Notice within
24 hours of the transmission by facsimile. As a courtesy, all communications shall also be sent by
electronic mail if the Party shall have provided a current electronic mail address, but said electronic
mail transmittal shall not constitute Notice hereunder. All postage or other charges incurred for
transmitting of Notices shall be paid by the Party sending same. Such Notices shall be deemed
served or given on (i) the date received, (ii) the date delivery of such Notice was refused or
unclaimed, or (iii) the date noted on the return receipt or delivery receipt as the date delivery
thereof was determined impossible to accomplish because of an unnoticed change of address.
ARTICLE 9
CONSTRUCTION OF TERMS AND MISCELLANEOUS
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9.1 Severabilitv. If any provisions of this Agreement or the application thereof to any
person or situation shall, to any extent, be held invalid or unenforceable, the remainder of this
Agreement, and the application of such provisions to Persons or situations other than those as to
which it shall have been held invalid or unenforceable, shall not be affected thereby, and shall
continue valid and be enforced to the fullest extent permitted by law.
9.2 Captions. The article and section headings and captions of this Agreement and the
Table of Contents, if any, preceding this Agreement are for convenience and reference only and in
no way define, limit or describe the scope or intent of this Agreement nor in any way affect this
Agreement.
9.3 Recordine. A Memorandum of this Agreement may be recorded by either Party
among the Public Records of Miami -Dade County, Florida, at the sole cost of the Party filing the
document.
9.4 Construction. All pronouns and any variations thereof shall be deemed to refer to
the masculine, feminine or neuter, singular or plural, as the identity of the party or parties may
require. The Parties hereby acknowledge and agree that each was properly represented by counsel
so that the judicial rule of construction to the effect that a legal document shall be construed against
the draftsman shall be inapplicable to this Agreement, which has been drafted by both the City and
MBU.
9.5 Consents. Whenever in this Agreement the consent or approval of the City is
required, such consent or approval may be made by the City Manager or his/her designee on behalf
of the City only to the extent: (i) this Agreement does not specify otherwise; (ii) City Commission
approval or consent is not required pursuant to the terms of this Agreement or any Applicable Law;
and (iii) such does not amend this Agreement in any material respect or increase the City's actual
or potential obligations and/or liabilities. No such request shall require a fee from the Party
requesting same. Any consent or approval by the City to such a request (X) shall not be effective
unless it is in writing; and (Y) shall apply only to the specific act or transaction so approved or
consented to and shall not relieve MBU of the obligation of obtaining the City's prior written
consent or approval to any future similar act or transaction. In no event shall the City's failure to
respond to any request for consent or approval by the City be deemed to constitute such consent
or approval, in whole or in part.
9.6 Entire Aureement. This Agreement, together with all of the Lease Agreements,
contains the entire agreement between the Parties hereto and shall not be modified or amended in
any manner except by an instrument in writing executed by the Parties hereto.
9.7 Assienment. Neither MBU nor MFP may assign its rights or obligations under this
Agreement (whether via merger, stock or asset sale, recapitalization, or otherwise) without the
prior, written consent of the City. However, the City acknowledges and agrees that MBU may
assign its rights and obligations under any of the Stadium Agreements to any successor -in -interest
or new owner of the Team; provided that (i) MLS has approved such transaction, (ii) any such
successor -in -interest has credit worthiness substantially similar to MBU, and (iii) such successor -
in -interest or new owner has assumed the obligations of MBU under the Stadium Agreements. The
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terms herein contained shall bind and inure to the benefit of the City, its successors and assigns,
and MBU, its permitted successors and assigns, except as may be otherwise provided herein.
9.8 Holidays. It is hereby agreed and declared that whenever the day on which a
payment due under the terms of this Agreement, or the last day on which a response is due to a
notice, or the last day of a cure period, falls on a day which is a Legal Holiday, or on a Saturday
or Sunday, such due date or cure period expiration date shall be postponed to the next following
Business Day.
9.9 Exhibits and Schedules. Each Exhibit and Schedule referred to in this Agreement
is incorporated herein by reference. The Exhibits and Schedules, even if not physically attached,
shall still be treated as if they were part of the Agreement.
9.10 Brokers. The City and MBU hereby represent and agree that no real estate broker
or other person is entitled to claim a commission as a result of the execution and delivery of this
Agreement. [TO BE CONFIRMED]
9.11 Governine LawNenue. This Agreement, including any exhibits or amendments,
if any, and all matters relating thereto (whether in contract, statute, tort or otherwise), shall be
governed by and construed in accordance with the laws of the State of Florida. Any claim, dispute,
proceeding, or cause of action, arising out of or in any way relating to this Agreement, or the
Parties' relationship shall be decided by the laws of the State of Florida. Subject to Section 9.12
below, the Parties agree that venue for any of the foregoing shall lie exclusively in the courts
located in Miami -Dade County, Florida.
9.12 Alternative Disoute Resolution. The Parties agree that any controversy, dispute
or breach arising out of or related to this Agreement shall be resolved pursuant to the terms of
Article 8 of the Master Lease.
9.13 Time is of the Essence. Time is of the essence.
9.14 Section References. All references herein to an "Article", "Section", "Subsection",
"paragraph", "subparagraph", or "clause" shall be deemed to refer to the applicable "Article",
"Section", "Subsection", "paragraph", "subparagraph" or "clause" of this Agreement, unless there
is a specific reference to another document.
9.15 Costs and Attornevs' Fees. Unless otherwise provided for in this Agreement, each
of the Parties hereto shall bear its own costs and attorneys' fees in connection with the execution
of this Agreement. The terms of this provision shall survive the termination of this Agreement.
9.16 RADON. RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS
THAT, WHEN IT HAS ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES,
MAY PRESENT HEALTH RISKS TO PERSONS WHO ARE EXPOSED TO IT OVER A TIME
PERIOD. LEVELS OF RADON THAT EXCEED FEDERAL AND STATE GUIDELINES
HAVE BEEN FOUND IN BUILDINGS IN FLORIDA. ADDITIONAL INFORMATION
REGARDING RADON AND RADON TESTING MAY BE OBTAINED FROM YOUR
COUNTY HEALTH DEPARTMENT.
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9.17 Non -Recourse. All claims or causes of action (whether in contract or in tort, in law
or in equity) that may be based upon, arise out of or relate to this Agreement, or the negotiation,
execution or performance of this Agreement (including any representation or warranty made in or
in connection with this Agreement or as an inducement to enter into this Agreement), may be made
only against the entities that are expressly identified as signatories and parties hereto. No person
who is not a named signatory and party to this Agreement, including any direct or indirect owner,
director, officer, manager, employee (including, in the case of the City, the City Manager and the
City's staff), incorporator, member, partner, stockholder, affiliate, agent, attorney or representative
of any signatory and party to this Agreement (collectively, the "Non -Party Affiliates"), shall have
any liability (whether in contract, in law or in equity, or based upon any theory that seeks to impose
contractual liability of an entity party against its owners or affiliates) for any obligations or
liabilities imposed by this Agreement or for any claim based on, in respect of, or by reason of this
Agreement. Non -Party Affiliates are expressly intended as third party beneficiaries of this
provision of this Agreement. The provisions of this Section 9.17 shall survive the termination or
expiration of this Agreement.
9.18 Public Records. To the extent applicable, MBU shall comply with Section
119.0701, Florida Statutes, including without limitation: (1) keep and maintain those records
constituting public records under Chapter 119, Florida Statutes; (2) provide the public with access
to public records in the possession of MBU in the manner required by Chapter 119, Florida
Statutes, and make available copies of such public records at the cost provided by Chapter 119,
Florida Statutes, or as otherwise provided by Applicable Law; (3) ensure that those public records
that are confidential and exempt from disclosure are not disclosed, except as authorized by
Applicable Law; (4) meet all requirements for retaining public records as set forth in Chapter 119,
Florida Statutes, (5) transfer, upon the written request of the City and at no cost to the City, all
public records in MBU's possession on the date of termination of this Agreement, which transfer
shall be done in an electronic format compatible with the City's information technology systems.
Notwithstanding the foregoing, MBU may (x) withhold any records that do not constitute public
records under Chapter 119, Florida Statutes, and (y) withhold and/or redact certain records, trade
secrets and other proprietary information, as confidential, and any such information shall be
excluded from public disclosure to the fullest extent permitted by Applicable Law.
9.19 NMS Subordination. The Stadium Agreements shall be subject and subordinate to
the approval of the MLS and the MLS Rules and Regulations. The issuance, entering into,
amendment or implementation of any of the MLS Rules and Regulations shall be at no cost or
liability to any MLS Entity.
9.20 Cooperation. The City and MBU 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,
except with respect to the City, the City shall not be required to take any such action which requires
City Commission approval or is deemed by the City to present a conflict of interest or is deemed
to be contrary to Applicable Law or which requires the City to incur any liability, cost or expense.
ARTICLE 10
REPRESENTATIONS AND WARRANTIES
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10.1 The Citv's Representations. The City makes the following representations,
covenants and warranties, which shall survive the execution of this Agreement and MBU's taking
of possession of the Stadium Property:
(A) Organization. The City is a municipal corporation of the State of Florida
and has the requisite power and authority to enter into and perform its obligation under this
Agreement.
(B) Authorization/Consents. 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.
(C) Execution. This Agreement, upon the execution and delivery hereof, will
constitute, a legal, valid and binding obligation of the City, enforceable against it in accordance
with its terms, except as such enforceability may be limited by bankruptcy, insolvency or other
similar laws affecting the enforcement if creditors' rights generally and by general principles of
equity.
(D) No Violation. Neither the execution, delivery or performance of this
Agreement by the City, nor 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, any
applicable law binding on the City or any indenture, mortgage, contract, lease or other instrument
to which the City is a party or by which it or any of its property is bound.
(E) Litigation. There is no action, suit, investigation or proceeding pending or,
to its knowledge, threatened against the City before any court, arbitrator or administrative body or
Governmental Authority 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.
(F) As of the Effective Date, to the City's knowledge, no party except MBU
and parties in possession by through or under MBU has any right to possession of the Stadium
Property.
Should any of the foregoing representations and warranties prove to be incorrect, it shall
be the City's obligation to cure those warranties and representations, which are set forth herein
forthwith at the City's expense.
10.2 MBU's Representations and Warranties. MBU makes the following
representations, covenants and warranties, which shall survive the execution of this Agreement
and MBU's taking of possession of the Stadium Property:
(A) Organization. MBU is a [limited liability company] duly organized and
validly existing under the laws of the State of [ ] and has the requisite power and authority to enter
into and perform its obligation under this Agreement.
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(B) Authorization/Consents. This Agreement has been duly authorized by all
necessary action on the part of MBU and does not require notice to or the consent or approval of
any trustee or holder of any indebtedness or any other Person.
(C) Execution. This Agreement, upon the execution and delivery hereof, will
constitute, a legal, valid and binding obligation of MBU, enforceable against it in accordance with
its terms, except as such enforceability may be limited by bankruptcy, insolvency or other similar
laws affecting the enforcement if creditors' rights generally and by general principles of equity.
(D) No Violation. Neither the execution, delivery or performance of this
Agreement by MBU, nor the consummation by MBU of the transactions contemplated hereby, nor
compliance by MBU with the provisions hereof conflicts or will conflict with, nor results in or
will result in the breach of any provisions of, the operating/organizational documents of MBU,
any applicable law binding on MBU or any indenture, mortgage, contract, lease or other instrument
to which MBU is a party or by which it or any of its property is bound.
(E) Litieation. There is no action, suit, investigation or proceeding pending or,
to its knowledge, threatened against MBU before any court, arbitrator or administrative or
Governmental Authority and which, if decided adversely to MBU's interest, would have an
adverse effect upon the ability of MBU to perform its obligations under this Agreement.
(F) Team. The Team is a member of MLS in good standing, and its rights
therein are in full force and effect and have not been terminated or rescinded in any manner.
(G) Neither MBU, any Affiliate of MBU, any Person having an equity interest
in MBU or an Affiliate of MBU, nor, to MBU's knowledge, any of MBU's officers, directors,
employees or agents is or will at any time be: (i) a Disqualified Person; (ii) in violation of any
Anti -Bribery, Anti -Money Laundering and Anti -Terrorism Laws; (iii) acting, directly or
indirectly, on behalf of terrorists, terrorist organizations or narcotics traffickers, including those
persons or entities that appear on the Annex to the Executive Order, or are included on any
Government Lists; (iv) named on a Government List, or acting for or on behalf of any Sanctioned
Country; or (v) the target of Sanctions.
(H) The funds or other assets used in connection with this Agreement and
amounts committed with respect thereto, were not and are not derived from any activities with the
governments of, or any individuals or entities located in, any Sanctioned Country or from activities
that otherwise contravene any Sanctions, or from any activities that contravene any Anti -Bribery,
Anti -Money Laundering and Anti -Terrorism Laws (including funds being derived from any
person, entity, country or territory on a Government List or engaged in any unlawful activity
defined under Title 18 of the United States Code, Section 1956(c)(7))_
(I) MBU acknowledges that it has examined the Parent Tract and Stadium
Property, and hereby accepts the Stadium Property in its present "AS -IS, WHERE -IS" condition
and without any representations or warranties of any kind or nature by the City whatsoever, express
or implied, as to the Parent Tract and/or Stadium Property, the condition thereof, or the accuracy
of any information furnished to MBU with respect thereto. MBU assumes the sole responsibility
for the condition and demolition of the present improvements and other structures located on the
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Parent Tract and/or Stadium Property in order that MBU may construct, operate, maintain and
manage the Improvements upon the Property; and the City shall not be required at any time to
make any repairs, replacements, changes (structural or otherwise), additions or alterations to the
Parent Tract and/or Stadium Property, the Improvements and/or any other property of any kind
demised by this Agreement. MBU hereby expressly acknowledges and agrees that: (i) the City
makes and has made no warranty or representation whatsoever as to the condition or suitability of
any portion of the Parent Tract and/or Stadium Property for MBU's purposes; (ii) the City makes
and has made no warranty, express or implied, with regard to the accuracy of any information
furnished to MBU, and the City shall not be bound by any statement of any broker, employee,
agent or other representative of the City; (iii) MBU has made a complete and thorough independent
examination and inspection of all portions of the Parent Tract and/or Stadium Property utilizing
such experts and consultants as MBU deemed appropriate and, on the basis of its inspection, MBU
is thoroughly familiar with all portions of the Parent Tract and/or Stadium Property (including,
without limitation, whether or not hazardous or toxic materials are or have heretofore been located
on or under or generated from any portion of the Parent Tract and/or Stadium Property), and all
other matters relevant to MBU; (iv) MBU has determined that the condition of all portions of the
Parent Tract and/or Stadium Property is satisfactory to MBU; and (v) the City makes and has made
no warranty, express or implied, concerning any portion of the Parent Tract and Stadium Property,
its condition, the use to which it may be put, any environmental matters, or any other thing or
matter directly or indirectly related thereto or hereto, including, without limitation, the zoning or
other land use restrictions affecting the Parent Tract and/or Stadium Property, the compliance of
the Parent Tract and/or Stadium Property or any part of the Parent Tract and/or Stadium Property
with any governmental requirement, the use or existence, or prior use or existence, of hazardous
materials on the Parent Tract and/or Stadium Property or the accuracy or completeness of any
statement or other matter previously disclosed to MBU. THERE ARE NO EXPRESS OR
IMPLIED WARRANTIES GIVEN TO MBU IN CONNECTION WITH THIS AGREEMENT
OR THE PARENT TRACT AND/OR THE STADIUM PROPERTY. THE CITY DISCLAIMS
ANY AND ALL WARRANTIES OF MERCHANTABILITY, HABITABILITY,
TENANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. MBU ASSUMES
RESPONSIBILITY AND ALL RISKS RELATING TO LATENT OR OTHER DEFECTS.
Should any of the foregoing representations and warranties prove to be incorrect, it shall
be MBU's obligation to cure those warranties and representations, which are set forth herein
forthwith at MBU's expense.
ARTICLE 11
EOUAL OPPORTUNITY
11.1 Equal Omortunity. MBU represents and warrants to the City that it will comply
with § 18-188, § 18-189 and § 18-190 of the Code. MBU hereby represents and warrants that it shall
not engage in discriminatory practices and shall not discriminate in connection with MBU's use
of the Stadium Property on account of race, national origin, ancestry, color, sex, religion, age,
handicap, familial status, marital status or sexual orientation.
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ARTICLE 12
LIVING WAGE
12.1 Florida Certified Business Enterprises; Livine Waue and Labor Peace
Aereement. MBU shall ensure that all employees and subcontractors of the Stadium Project shall
be subject to the State of Florida minority-owned, woman -owned and veteran -owned Certified
Business Enterprises and that hourly employees who primarily work at the Stadium shall be paid
a living wage of no less than $15.00 an hour without health benefits; or a living wage of no less
than $13.19 an hour with health benefits (the "Living Wage"). MBU has commenced negotiations
with United Here, Local 355, on a Labor Peace Agreement. No less than 20% of the construction
force used by MBU shall be union labor.
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IN WITNESS WHEREOF, the City has caused this Construction Administration
Agreement to be executed in its name by the City, as authorized by the City Commission and MFP
and MBU have caused this Agreement to be executed by their respective duly authorized
representative, all on the day and year first herein above written.
Signed in the presence of:
Print Name:
Print Name:
ATTEST:
By:
Todd B. Hannon
City Clerk
APPROVED AS TO INSURANCE
REQUIREMENTS:
Ann -Marie Sharpe, Director
Risk Management Department
THE CITY:
CITY OF MIAMI, a municipal corporation
of the State of Florida
IIn
Emilio T. Gonzalez
City Manager
APPROVED AS TO LEGAL FORM &
CORRECTNESS:
LOIN
Victoria Mendez
City Attorney
[SIGNATURES CONTINUED ON NEXT PAGE]
[Signature Page to Construction Administration Agreement]
Signed in the presence of:
Print Name:
Print Name:
Signed in the presence of:
MFP:
MIAMI FREEDOM PARK, LLC,
a Delaware limited liability company
By:
Name:
Title:
1,
Print Name:
Print Name:
a[
By:
Name:
Title:
[Signature Page to Construction Administration Agreement]
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EXHIBIT A
LEGAL DESCRIPTION OF STADIUM PROPERTY
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EXHIBIT B
STADIUM PROJECT REOUIREMENTS
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EXHIBIT C
TRANSPORTATION MANAGEMENT PLAN
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