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HomeMy WebLinkAboutBack-Up Document - Draft Non-Relocation AgreementOMM 8/7/2019 NON -RELOCATION AGREEMENT This Non -Relocation Agreement (this "Agreement") is made and entered into as of this [] day of L__], 2019 by and among 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"), MIAMI FREEDOM PARK, LLC, a Delaware limited liability company, having its principal office and place of business at 800 Douglas Road, 12th Floor, Coral Gables, Florida 33134 ("MFP"), and [MIAMI BECKHAM UNITED, LLC], a F limited liability company], having its principal office and place of business at [ ] ("MBU"). The City, MFP, and MBU shall be referred to herein collectively as the "Parties" and each, individually, as a "Party". RECITALS WHEREAS, MBU is the owner and operator of the Major League Soccer ("MLS") franchise known as Inter Miami CF (the "Team"); WHEREAS, the City is the owner of a certain parcel of real property commonly known as the Melreese Country Club (the "Parent Tract"); 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 tax revenues from the 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, subject to and in accordance with the terms of the Lease Agreements; WHEREAS, contemporaneously with the execution of this Agreement, the Parties have entered into (i) that certain Stadium Operating Agreement (the "Stadium Lease") pursuant to which the City shall lease that certain property as described therein (the "Stadium Property") to MBU, who shall operate and manage the soccer stadium built thereon (the "Stadium"), (ii) that certain Construction Administration Agreement (the "Construction Administration Agreement"), pursuant to which MBU shall design, develop and construct the Stadium, and (iii) that certain Ground Lease and Master Development Agreement (the "Master Lease"), pursuant to which the City shall lease that certain property as described therein (the "Ancillary Development Property") to MFP, who shall design and develop it as set forth therein (the "Ancillary Development"); WHEREAS, on July 18, 2018, the City Commission passed Resolution R-18-0309, authorizing the City Attorney to prepare an amendment to the Charter for consideration at the election scheduled for November 6, 2018, proposing to amend the Charter to authorize the City Commission to waive competitive bidding and by a four-fifths (4/5th) affirmative vote lease the Parent Tract to MFP ("Charter Amendment"); WHEREAS, on November 6, 2018, the City's residents approved, by public referendum, the Charter Amendment; and OMM US:77096359.5 WHEREAS, as a material inducement to the City to enter into the Lease Agreements, MFP and MBU have agreed to enter into this Agreement to assure that the Team will play its Home Matches at the Stadium for the Non -Relocation Term and on the other terms and conditions set forth herein. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained in this Agreement and other good and valuable consideration, including $100.00 paid on the date hereof from MFP and MBU to the City, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows: 1. Definitions. "Affiliates" shall mean, for any Person, any other Person that such Person controls. "Alternate Site Condition" shall mean the existence of any one of the following conditions: i. all or a significant portion of the Stadium is damaged or destroyed by the following acts or events: (a) natural phenomena such as storms, floods, lightning, freezes and earthquakes, (b) fires or explosions; ii. a Governmental Authority determines the use or occupancy of any material portion of the Stadium is (a) not permitted under any Applicable Law or (b) is unsafe for customary usage. "Applicable Law(s)" shall mean all applicable laws, ordinance, rules, regulations, authorizations, orders and requirements of all federal, state, City and municipal governments, the departments, bureaus or commissions thereof, or any other body or bodies exercising similar functions having or acquiring jurisdiction over all or any part of the Stadium Property. "City Attorney" shall mean Victoria Mendez or her successor as City Attorney of the City of Miami, Florida. "City Commission" shall mean the City Commission of the City of Miami, Florida. "Final Order" shall mean when a court of competent jurisdiction determines, in a final and non -appealable order, that MBU has breached its covenants under Section 2 of this Agreement. "Governmental Authority" shall mean all federal, state, county and municipal governments, the departments, bureaus or commissions thereof, or any other body or bodies exercising similar functions having or acquiring jurisdiction over all or any part of the Stadium Property. "Home Matches" shall mean all scheduled and rescheduled exhibition, tournament, friendly, regular season and postseason home matches, including but not limited to MLS matches. 2 OMM US:77096359.5 "Lease Agreements" shall mean, collectively, this Agreement, the Master Lease, the Stadium Lease, the Construction Administration 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. "Liquidated Damages" shall mean the sum of the total amount of rent due to the City under the Stadium Lease and the Master Lease between the date of any Non -Relocation Default and the expiration of the final extension terms of each of the Stadium Lease and the Master Lease. "NMS Governing Documents" shall mean that certain MLS constitution as in effect from time to time and any amendments, supplements or other modifications thereto and all replacement or successor documents thereto that may in the future be entered into. "NMS Rules and Regulations" shall mean (x) the MLS Governing Documents, (y) any present or future agreements or arrangements entered into by, or on behalf of MLS, including, without limitation, agreements or arrangements entered into pursuant to the MLS Governing Documents, and (z) the present and future mandates, rules, regulations, policies, practices, bulletins, by-laws, directives or guidelines issued or adopted by, or behalf of, MLS as in effect from time to time. "Non -Relocation Default" shall mean any breach by MBU of any of the terms, covenants or agreements of Section 2 of this Agreement. "Non -Relocation Covenants" shall mean the collective covenants made by, and obligations imposed on, MFP and MBU pursuant to Section 2 of this Agreement. "Non -Relocation Term" shall mean the term of this Agreement, which shall run concurrently with the term of the Stadium Lease, including any extensions thereto, subject to the termination of this Agreement pursuant to Section 5.4 of this Agreement. "Person" shall mean any individual, corporation, partnership, joint venture, limited liability company, estate, trust, unincorporated association, any Governmental Authority, and any fiduciary acting in such capacity on behalf of any of the foregoing. Any capitalized term not otherwise defined herein shall have the meaning ascribed to it in the Stadium Lease, unless such term is not defined therein, in which case it shall have the meaning ascribed to it in the Master Lease. 2. Covenant to Plav at the Stadium. Subject to Section 3 of this Agreement, MBU covenants and agrees that throughout the Non -Relocation Term, as applicable: 2.1 MBU shall maintain and operate the Stadium in Miami, Florida and maintain and operate the Team in Miami, Florida and use the Stadium as permitted in the Stadium Lease and shall not volunteer or vote in favor for contraction of the Team; 2.2 the Team shall play all of its Home Matches at the Stadium; and 3 OMM US:77096359.5 2.3 MBU (a) shall not enter into any contract or agreement, or make any request or application to MLS, to (i) relocate or operate its franchise outside of the City in violation of Section 2.1 or (ii) have the Team play any Home Match in any location other than the Stadium in violation of Section 2.2: and (b) shall not (i) entertain any offer or proposal to relocate the Team to a location other than the Stadium, (ii) solicit an offer or proposal from any Person to enter into discussions regarding moving the Team to a location other than the Stadium, (iii) enter into negotiations with third parties concerning the relocation of the Team to a location other than the Stadium, or (iv) otherwise attempt to cause the playing of Home Matches at a location other than the Stadium, except as provided in Section 3. The execution and delivery to the City of this Agreement is a condition to the effectiveness of the City's obligations under the Lease Agreements. Exceptions. 3.1 Notwithstanding the provisions of Section 2, the Team shall be permitted to play what would otherwise be a Home Match at a location other than the Stadium in the event of an Alternate Site Condition. 3.2 In any consecutive five (5) year period, one (1) Home Match (not including any matches played in different locations under Section 3.1 above), in an international or other location as requested by MLS; provided that, MBU shall provide prior written notice, as specified in Section 15, to the City not later than [January 1] of any operating year of such Home Match scheduled for the upcoming MLS season. Notwithstanding the foregoing, MBU remains expressly obligated to exhibit, promote, schedule and play or conduct all of the Team's Home Matches in the Stadium. 3.3 If the Stadium is substantially completed after the date on which one-half of the Team's Home Matches have been played, the covenants in Section 2 shall not become effective until the start of the succeeding MLS season. 3.4 MBU may take any actions otherwise prohibited by Sections 2.1, 2_2 and 2_3, in connection with any change in location permitted by this Section 3. 3.5 Without limiting the generality of any other provision of this Agreement, the covenants of MBU provided in Section 2 shall not apply: (i) if MBU obtains the City's written consent, which consent shall be within the sole and absolute discretion of each of the City, prior to any action(s) otherwise prohibited under such section; provided, however, any actions which would allow the Team to permanently relocate from the City shall also require MLS approval; and (ii) at any time after the termination of this Agreement. 4. Alternate Site Condition. 4.1 Notwithstanding the provisions of Section 2, if, at any time during the Non - Relocation Term, an Alternate Site Condition shall exist, then (i) the Team shall be entitled to make arrangements to temporarily play at alternate sites in Miami -Dade County for its Home Matches and (ii) MBU shall be temporarily relieved of its obligations under Sections 2.1, 2_2 and 2_3 hereunder and shall be entitled to allow the Team to play its Home Matches at such alternate 4 OMM US:77096359.5 sites, but only during the period of time that any such Alternate Site Condition shall exist; provided, however, that if the Alternate Site Condition shall be of such a nature that its expected expiration cannot reasonably be ascertained by MBU or the City, then MBU shall be entitled to honor any commitment it might reasonably have made for the Team to play its Home Matches at an alternate site even if that commitment extends beyond the date such Alternate Site Condition ends. MBU shall not, however, make any commitment that extends beyond the end of the MLS season in or prior to which such Alternate Site Condition occurs, provided, however, MBU shall use its reasonable best efforts to cause the Team to play its Home Matches at the Stadium as soon as possible after the Alternate Site Condition has ended. 4.2 Within thirty (30) days of the commencement of an Alternate Site Condition, MBU shall give the City a written notice setting forth the date it reasonably believes such Alternate Site Condition will terminate (the "Proposed Date"). If the City fails to object to such notice within thirty (30) business days of receipt of such notice, it will be deemed to have accepted the Proposed Date and MBU's right to contract with alternate sites under Section 4.1 shall be based on such date. If the City objects to the Proposed Date, the Parties shall use good faith efforts to resolve such dispute within the next five (5) business days. The Parties shall consult, and reasonably cooperate, with one another following any Alternate Site Condition so that the Team can most effectively find and contract for an alternate site during the duration of such Alternate Site Condition. 4.3 MFP and MBU shall use reasonable best efforts to mitigate and overcome any Alternate Site Condition that results in the Team's Home Matches not being played at the Stadium to the extent such event or condition is within the reasonable control of MFP or MBU. 5. Remedies. MFP and MBU (a) acknowledge that the Non -Relocation Covenants are an essential part of the bargain and consideration of the Lease Agreements and are necessary to protect the business and goodwill of the City; (b) recognize that the Stadium is being constructed on City land that is being granted exclusively for the building of the Stadium for the purpose of the Team playing its Home Matches thereon during the Non -Relocation Term; (c) recognize that having the Team play its Home Matches in the Stadium throughout the Non -Relocation Term provides a unique value to City, including generating new jobs, additional revenue sources and economic development and increased tourism for the City; and (d) acknowledge and agree that any breach by MFP or MBU of the Non -Relocation Covenants shall cause irreparable and continual harm to the City, and that damages for a default under such Non -Relocation Covenants cannot be estimated with any degree of certainty and that monetary damages cannot fairly or adequately compensate the City for a breach of such Non -Relocation Covenants. Further, the Parties acknowledge that (i) MFP and MBU's obligations under the Non -Relocation Covenants are unique, are the essence of the bargain and are essential consideration for this Agreement and the other agreements being entered into by the Parties related to the Stadium, including, but not limited to the Lease Agreements; and (ii) the determination of damages caused by a Non - Relocation Default, the effects of which would be suffered by the City and the community would be difficult, if not impossible, to ascertain. Therefore, the Parties acknowledge and agree that there exists no adequate and complete remedy at law to enforce this Agreement against MFP and MBU and that equitable relief by way of specific performance or injunction is the only appropriate remedy for the enforcement of this Agreement, notwithstanding the provisions for Liquidated Damages provided in Section 5.2. 5 OMM US:77096359.5 5.1 Declaratory or Iniunctive Relief. Upon the occurrence of a Non - Relocation Default, the City shall be entitled to seek injunctive relief prohibiting or mandating action by MFP and MBU in accordance with, or declaratory relief with respect to, the Non - Relocation Covenants. MFP and MBU agree that, in the event of any of the actual or threatened (in the reasonable opinion of the City) breach by MFP or MBU of any one of the Non -Relocation Covenants (i) the City shall be entitled to seek and obtain, a temporary restraining order, together with temporary, preliminary and permanent injunctive or other equitable relief, from any court of competent jurisdiction, to restrain or enjoin any actual or threatened breach by MFP or MBU of any Non -Relocation Covenant without the necessity of posting a bond or other security and without any further showing of irreparable harm, balance of harms, consideration of the public interest or the inadequacy of monetary damages as a remedy, (ii) the administration of an order for injunctive relief would not be impractical and, in the event of any breach of any Non -Relocation Covenant by MFP or MBU, the balance of hardships would weigh in favor of entry of injunctive relief, and (iii) the City may enforce any Non -Relocation Covenant contained in this Agreement through specific performance. The Parties hereby agree and irrevocably stipulate that (a) the rights of the City to injunctive relief pursuant to this Non -Relocation Agreement shall not constitute a "claim" pursuant to Section 101(5) of the United States Bankruptcy Code (the "Bankruptcy Code") and shall not be subject to discharge or restraint of any nature in any bankruptcy proceeding involving MFP or MBU, (b) this Agreement is not an "executory contract" as contemplated by Section 365 of the Bankruptcy Code, and (c) action(s) taken by the City pursuant to this Section 5.1 shall not in any way prejudice any other rights or remedies that the City may have under Section 5.2 or Section 5.4 of this Agreement or under other operative agreements if a court of competent jurisdiction fails to provide injunctive or other equitable relief prohibiting MFP or MBU's violation of the Non -Relocation Covenants or, in the case of the remedies set forth in Section 5.4, fails to award Liquidated Damages under Section 5.2, provided, that MFP and MBU shall be obligated to pay the costs of litigation and any additional costs incurred by the City in enforcing its rights under this Agreement, and MFP and MBU shall comply with any and all provisions under the other operative agreements until such time the other operative agreements are terminated. 5.2 Liquidated Damages; Lease Rights and Revenues. MFP and MBU acknowledge and agree that, if upon the occurrence of a Non -Relocation Default, in the event equitable relief is not granted by a court of competent jurisdiction for any reason or is otherwise unavailable, the remedies described in this Section 5.2 are the next most appropriate remedy. Therefore, in the event of a Non -Relocation Default, and the failure of any court to grant the equitable relief described in Section 5.1 above, MFP and MBU shall (i) pay Liquidated Damages to the City and (ii) forfeit any rights or revenues pursuant to the Stadium Lease and the Master Lease, and the City shall have the right to hold onto for itself and/or assign MFP's rights under the Master Lease and MBU's rights under the Stadium Lease to any Person(s) and collect any fees and/or revenues generated therefrom. Notwithstanding anything to the contrary herein, the Parties acknowledge the amounts designated in this Section 5.2 do not constitute the full amount of damages the City would suffer as a result of a Non -Relocation Default. 5.3 Other Breach, Actual Damages. In the event of any breach of or misrepresentation in this Agreement by MFP or MBU (other than a Non -Relocation Default subject to the remedies set forth in Section 5.1 or, if applicable, Section 52), or in the event of a Non -Relocation Default for which, notwithstanding the intent of the Parties, the City is unable to 6 OMM US:77096359.5 obtain the relief set forth in Section 5.1 or, if applicable, Section 5.2, the City shall have the right (i) to institute any and all proceedings or claims permitted by law or equity to recover any and all amounts necessary to compensate the City for all damages proximately caused by MFP or MBU's breach under this Agreement, and (ii) to institute any and all proceedings or claims permitted by law or equity to compel specific performance with respect to MFP or MBU's obligations under this Agreement and one or more actions to seek to obtain a temporary restraining order, together with such other temporary, preliminary and permanent injunctive or other equitable relief, from any court of competent jurisdiction capable of issuing or granting such relief, to compel MFP or MBU to comply with or refrain or cease from breaching or violating the terms, covenants and conditions. 5.4 Termination. 5.4.1 Upon the entry of a Final Order with respect to a default by MFP or MBU, the City shall have the right, but not the obligation, to give to MFP and MBU written notice of its intention to terminate this Agreement and all Lease Agreements (a "Final Notice"), subject to MFP and MBU's continuing obligation to pay any and all damages due and payable under this Agreement, including, but not limited to those set forth in Section 5.2. After the expiration of a period of thirty (30) days from the date such Final Notice is given, unless the default is cured, this Agreement and the Lease Agreements may, at the sole option of the City, be terminated without liability to the City by further written notice to MFP and MBU. If, however, within such thirty (30) day period, MFP or MBU's default under Section 2 of this Agreement is cured, then this Agreement and the Lease Agreements shall not terminate by reason of such Final Notice. 5.4.2 This Agreement, and all obligations of the Parties under this Agreement shall terminate without further action by, or liability to, any Party upon the expiration or termination of the Stadium Lease for any reason expressly permitted under the Stadium Lease; provided further that upon a termination of the Stadium Lease by the City upon the entry of a Final Order that MFP or MBU has breached Section 2 of this Agreement, this Agreement shall only terminate as provided in Section 5.4.1 of this Agreement. For the avoidance of doubt, until the end of the Non -Relocation Term, MFP and MBU shall remain bound by, and shall not be relieved of, its obligations under this Agreement upon a termination by the City of the Stadium Lease due to a breach of Section 2 hereof by MFP or MBU as described in the preceding sentence. Except for the provisions of this Agreement that are expressly to survive termination, and except as provided in this Section 5.4.2, in the event of a termination of this Agreement and the Stadium Lease under Section 5.4 of this Agreement, then all obligations of the Parties under this Agreement and the Stadium Lease shall also automatically terminate, except for those obligations which by their express terms survive the termination or expiration of this Agreement, as discussed herein, or the Stadium Lease. 5.4.3 This Agreement, and all obligations of the Parties under this Agreement shall terminate without further action by, or liability to, any Party upon the expiration or termination of the Construction Administration Agreement for any reason expressly permitted thereunder. 5.4.4 Termination of this Agreement or any Lease Agreement or any combination thereof, shall not alter any existing claim of any Party for breaches of such 7 OMM US:77096359.5 agreement(s) occurring prior to such termination and the obligations of the Parties thereto with respect to such existing claims shall survive termination. 5.5 Cumulative Remedies. Except as expressly set forth in Section 5. 1, Section 5_2 and Section 5.4 of this Agreement, each right or remedy of the City provided for herein shall be cumulative of and shall be in addition to every other right or remedy of the City provided for in this Agreement, and the exercise (or the beginning of the exercise) by the City of any one or more of the rights or remedies provided for in this Agreement, shall not preclude the simultaneous or later exercise by the City of any or all other rights or remedies provided for in this Agreement or the Lease Agreements or hereafter existing at law or in equity, by statute or otherwise. 6. Governine Law: Interpretation. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida. The Parties hereby agree that venue and jurisdiction for all legal proceedings arising out of or relating to this Agreement shall be exclusively in Miami, Florida. The headings of sections and paragraphs in this Agreement are for convenience only and shall not be construed in any way to limit or define the content, scope or intent of the provisions hereof. As used in this Agreement, the singular shall include the plural, and masculine, feminine and neuter pronouns shall be fully interchangeable where the context so requires. Time is of the essence of this Agreement. 7. Entire Aereement. This Agreement constitutes the sole and entire agreement among the Parties with respect to this Agreement and supersedes all prior written or oral agreements among them relating to that subject matter. Waiver by any Party of any breach of any provision of this Agreement shall not be considered as or constitute a continuing waiver or a waiver of any other breach of the same or other provision of this Agreement. 8. Representations and Warranties. 8.1 MFP and MBU hereby represent and warrant to the City as follows: 8. 1.1 the execution, delivery and performance by MFP and MBU of this Agreement have been duly authorized by all necessary corporate action, and do not and will not contravene or conflict with (i) the certificate of existence or bylaws of MFP or MBU, (ii) any provision of MLS Rules and Regulations, (iii) any law, order, rule, regulation, writ, injunction or decree now in effect of any government, governmental instrumentality or court having jurisdiction over MFP or MBU, or (iv) any loan agreement or other contractual restriction binding on or affecting MFP or MBU or any of their respective property or assets, except where any of the foregoing could not reasonably be expected to have a material adverse effect on MFP or MBU; 8.1.2 this Agreement is a legal, valid and binding obligation of MFP and MBU enforceable against MFP or MBU in accordance with its terms; 8.1.3 there is no known action, proceeding or investigation pending or, to the knowledge of MFP or MBU, affecting MFP or MBU, which may adversely affect the ability of MFP or MBU to fulfill and perform its obligations and its other undertakings under this Agreement. MFP and MBU are not in default with respect to any judgment, order, injunction or decree of any Governmental Authority which is in any respect material to the transactions contemplated in and by this Agreement; 8 OMM US:77096359.5 8.1.4 MFP is a limited liability company duly formed, validly existing, and in good standing under the laws of the State of Florida; 8.1.5 MBU is a [limited liability company] duly formed, validly existing, and in good standing under the laws of the State of [ ]; and 8.1.6 the Team is a member in good standing of MLS and is in compliance in all material respects with all applicable MLS Rules and Regulations which are relevant to the transactions contemplated herein. 8.2 The City hereby represents and warrants to MFP and MBU as follows: 8.2.1 the execution, delivery and performance by the City of this Agreement have been duly authorized by all necessary governmental action, and do not and will not contravene or conflict with any statutes, regulations, rules, agreements, charters, instruments, contracts, judgments, orders, stipulations, injunctions, decrees or other restrictions to which the City or its assets may be bound or affected; 8.2.2 this Agreement is a legal, valid and binding obligation of the City enforceable against the City in accordance with its terms; and 8.2.3 there is no known action, proceeding or investigation pending or, to the knowledge of the City, affecting the City, which may adversely affect the ability of the City to fulfill and perform its obligations and its other undertakings under this Agreement. The City is not in default with respect to any judgment, order, injunction or decree of any Governmental Authority which is in any respect material to the transactions contemplated in and by this Agreement. 9. Successors and Assigns: Third Partv Beneficiaries. 9.1 This Agreement shall bind MFP and MBU and their assigns and successors; provided that MFP and MBU shall not be entitled to transfer or assign their obligations hereunder without the prior written consent of the City, which consent shall be in its sole discretion and may be conditioned upon MFP or MBU remaining liable under this Agreement if the City is not reasonably satisfied with the creditworthiness of the transferee; provided, further, however, that if (a) MFP transfers and assigns, whether via stock sale, merger, asset acquisition or otherwise, (x) all or a majority of the outstanding stock or assets of MFP or (y) controlling interest in the Stadium Property, as such term is defined in the Master Lease, such transferee (an "MFP Transferee") shall automatically be assigned MFP's interest in this Agreement, and MFP Transferee shall assume, in a writing reasonably satisfactory to the City, all of the obligations of MFP under this Agreement; and (b) if MBU transfers and assigns, whether via stock sale, merger, asset acquisition or otherwise, (x) all or a majority of the outstanding stock or assets of MBU, or (y) controlling interest in the Team (which such transfer shall be subject to the approval of the MLS), or (z) controlling interest in the Stadium Property, as such term is defined in the Stadium Lease, such transferee (an "MBU Transferee") shall automatically be assigned MBU's interest in this Agreement, and MBU Transferee shall assume, in a writing reasonably satisfactory to the City, all of the obligations of MBU under this Agreement and under the Stadium Lease. MBU shall provide the City written evidence of MLS approval of an MBU Transferee within five (5) business days after MBU's receipt thereof. 9 OMM US:77096359.5 9.2 This Agreement shall bind the City and its respective assigns and successors; provided that the City may not transfer or assign this Agreement or any of its respective rights and obligations hereunder without the prior written consent of MBU. 9.3 Nothing in this Agreement, express or implied, is intended to (a) confer upon any Person other than MLS, the Parties and their permitted successors and assigns any rights or remedies under or by reason of this Agreement as a third -party beneficiary or otherwise; or (b) authorize anyone not a party to this Agreement (other than MLS) to bring or maintain an action pursuant to or based upon this Agreement. 10. Amendments, Waivers. No modification, amendment or waiver of this Agreement or of any of its conditions or provisions shall be binding unless such modification, amendment or waiver is in writing and signed by the Parties, and that all necessary MLS approvals have been obtained in advance thereof. 11. Indemnification by MFP and MBU. MFP and MBU shall indemnify and hold harmless the City and each and all of its respective directors, officers, employees, agents, licensees, volunteers, independent contractors and consultants or any of them as their interests may appear (collectively, "Government Indemnitees"), of, from and against all claims, fines, claim costs, charges and expenses, liabilities, suits, obligations, demands, actions, settlements, and judgments recovered from any of them, including attorneys' fees incurred to defend such claims (collectively, "Losses"), to the extent such Losses arise from any breach of this Agreement by MFP or MBU. To the extent applicable, any such indemnification shall be provided in accordance with the indemnification procedures set forth in Article 26 of the Stadium Lease. MFP and MBU expressly understand and agree that any insurance protection required by this Agreement or otherwise provided by MFP or MBU shall in no way limit the responsibility to indemnify, keep and save harmless and defend the Government Indemnitees as herein provided. 12. Sovereign Immunitv. Notwithstanding any other provision of this Agreement, nothing herein shall be construed as a waiver of any limitations of liability applicable to the City as set forth in Section 768.28, Florida Statutes or other applicable law. 13. Nonrecourse Liabilitv of MFP and MBU Personnel. Notwithstanding and prevailing over any contrary provision or implication in this Agreement and except for their criminal acts with respect to this Agreement (i.e., acts which would constitute crimes were they prosecuted for and convicted of such acts), the individual officers, directors, partners, shareholders, members, employees and agents of MFP and MBU and their Affiliates (the "Personnel") shall not in any way be liable under or with respect to this Agreement; no deficiency or other monetary or personal judgment of any kind shall be sought or entered against any of the Personnel with respect to liability under or with respect to this Agreement; no judgment with respect to liability under or with respect to this Agreement shall give rise to any right of execution or levy against the assets of any of the Personnel; and the liability of MFP and MBU under this Agreement shall be limited to the assets of MFP and MBU. 14. Nonrecourse Liabilitv of Citv Personnel. Notwithstanding and prevailing over any contrary provision or implication in this Agreement, no member, elected or appointed official, officer, employee, agent, independent contractor or consultant of the City shall be liable to MFP 10 OMM US:77096359.5 or MBU, or any successor in interest to MFP or MBU, in the event of any default or breach by the City for any amount which may become due to MFP or MBU or any successor in interest to MFP or MBU under this Agreement, or on any other obligation under the terms of this Agreement, except for their criminal acts with respect to this Agreement (i.e., acts which would constitute crimes were they prosecuted for and convicted of such acts) 15. Notices. Any notice, consent or other communication under this Agreement shall be in writing and shall be considered given when delivered in person or sent by electronic mail (provided that any notice sent by electronic mail shall simultaneously be sent personal delivery, overnight courier or certified mail as provided herein), one (1) business day after being sent by reputable overnight carrier, or three (3) business days after being mailed by certified mail, return receipt requested, to the Parties at the addresses set forth below (or at such other address as a Party may specify by notice given pursuant to this Section 15 to the other Parties): To MFP: [ ] With a copy to: [ ] To MBU: [ ] With a copy to: [ ] To the City: [ ] With a copy to: O'Melveny & Myers LLP Times Square Tower 7 Times Square New York, NY 10036 Attention: Irwin Raij, Esq. E-mail: iraiin,omm.com 16. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under any applicable Law, but if any provision of this Agreement is held to be prohibited by or invalid under any applicable Law, the Parties shall, to the extent possible, negotiate a revised provision which (a) complies with Applicable Law, (b) does not alter any of the substantive rights, obligations or liabilities of any party under this Agreement or the Lease Agreements, and (c) confers upon the Parties the benefits intended to be conferred by the invalid provision; and the remaining provisions of this Agreement, if capable of substantial performance, shall be enforced as if this Agreement was entered into without the invalid provision. 17. Counterparts. If this Agreement is executed in several counterparts, each of those counterparts shall be deemed an original, and all of them together shall constitute one and the same instrument. [SIGNATURES FOLLOW ON NEXT PAGE] 11 OMM US:77096359.5 12 OMM US:77096359.5 OMM 8/7/2019 IN WITNESS WHEREOF, this Agreement has been executed by duly authorized officers of MFP, duly authorized officers of MBU, and duly authorized officials of the City, each of whom hereby represents and warrants that he has the full power and authority to execute this Agreement in such capacity, all as of this day of L_], 2019. STATE OF . SS.. COUNTY OF MIAMI FREEDOM PARK, LLC, a Florida limited liability company By: Name: Title: On the day of in the year 2019, before me, the undersigned officer, personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the of Miami Freedom Park, LLC, a Florida limited liability company, and that s/he, as such officer, being authorized to do so, executed the foregoing instrument for the purpose therein contained. In witness whereof, I hereunto set my hand and official seal. Notary [SIGNATURES CONTINUED ON NEXT PAGE] [Signature Page to Non -Relocation Agreement] OMM US:77096359.5 STATE OF . SS.. COUNTY OF �], a [ ] limited liability company By: Name: Title: On the day of in the year 2019, before me, the undersigned officer, personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the of Miami Beckham United, LLC, a [ ] limited liability company, and that s/he, as such officer, being authorized to do so, executed the foregoing instrument for the purpose therein contained. In witness whereof, I hereunto set my hand and official seal. Notary [SIGNATURES CONTINUED ON NEXT PAGE] [Signature Page to Non -Relocation Agreement] OMM US:77096359.5 CITY OF MIAMI, a municipal corporation of the State of Florida By: Name: Title: ATTEST: 11, IN Approved as to form and correctness City Attorney [Signature Page to Non -Relocation Agreement] OMM US:77096359.5