HomeMy WebLinkAboutBack-Up Document - Draft Stadium Lease Operating AgreementSTADIUM LEASE AND OPERATING 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
INCORPORATION OF RECITALS.................................................................................
3
DEFINITIONS...................................................................................................................
3
TERM..............................................................................................................................
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STADIUMRENT............................................................................................................
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OWNERSHIP OF THE STADIUM AND THE STADIUM PROPERTY .....................
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COVENANT AGAINST WASTE; CITY INSPECTION OF PROPERTY ...................
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USE OF THE STADIUM AND THE STADIUM PROPERTY .....................................
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PARKING........................................................................................................................
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DISCHARGE OF OBLIGATIONS; NO LIENS............................................................
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GUARANTY OF STADIUM LEASE............................................................................
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REVENUE STREAMS...................................................................................................
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NAMING AND SPONSORSHIP RIGHTS....................................................................
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MARKETING AND PROMOTION OF THE STADIUM .............................................
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PUBLIC SAFETY AND SECURITY.............................................................................
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UTILITIES.......................................................................................................................
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OPERATION AND MAINTENANCE EXPENSES; CAPITAL
MAINTENANCE AND REPAIRS.................................................................................
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CHANGES AND ALTERATIONS TO IMPROVEMENTS BY MBU.........................
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FF&E................................................................................................................................
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CITY RIGHT TO PERFORM MBU/MFP COVENANTS .............................................
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MBU IMPROVEMENTS................................................................................................
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RETURN OF STADIUM................................................................................................
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TAXES.............................................................................................................................
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OPERATING PERMITS.................................................................................................
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DISASTER PREPAREDNESS, DISASTER RESPONSE, AND SHELTER ................
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INSURANCE...................................................................................................................
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INDEMNIFICATION......................................................................................................
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TIME IS OF THE ESSENCE..........................................................................................
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QUIET USE AND ENJOYMENT..................................................................................
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DESTRUCTION OF STADIUM....................................................................................
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CONDEMNATION.........................................................................................................
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RECORDING..................................................................................................................
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NOTICES.........................................................................................................................
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ASSIGNMENT................................................................................................................
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CERTIFICATES..............................................................................................................
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BINDINGEFFECT.........................................................................................................
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EVENTS OF DEFAULT.................................................................................................
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REMEDIES AND TERMINATION...............................................................................
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DISPUTE RESOLUTION...............................................................................................
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CONSTRUCTION...........................................................................................................
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CONSENTS.....................................................................................................................
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BROKERS.......................................................................................................................
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COSTS AND ATTORNEYS' FEES...............................................................................
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RADON...........................................................................................................................
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NON-RECOURSE ...........................................................................................................
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PUBLICRECORDS........................................................................................................
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COOPERATION.............................................................................................................
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STATUSOF PARTIES...................................................................................................
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NO WAIVER OR BREACH...........................................................................................
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SEVERABILITY.............................................................................................................
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CAPTIONS......................................................................................................................
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RELATIONSHIP OF PARTIES......................................................................................
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GOVERNING LAW, VENUE AND JURISDICTION..................................................
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WAIVER OF JURY TRIAL............................................................................................
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MULTIPLE COUNTERPARTS.....................................................................................
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ENTIRE AGREEMENT..................................................................................................
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FURTHER ASSURANCES AND CORRECTIVE INSTRUMENTS ............................
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MLSSUBORDINATION...............................................................................................
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FORCEMAJEURE.........................................................................................................
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NO PERSONAL LIABILITY.........................................................................................
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EQUAL OPPORTUNITY...............................................................................................
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LIVINGWAGE...............................................................................................................
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GENERAL REPRESENTATIONS AND WARRANTIES ............................................
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63. THIRD PARTY BENEFICIARIES................................................................................. 47
EXHIBIT A
STADIUM PROPERTY
EXHIBIT B-1
CAPITAL MAINTENANCE AND REPAIRS
EXHIBIT B-2
ROUTINE MAINTENANCE
EXHIBIT C
GUARANTY
EXHIBIT D
INSURANCE
EXHIBIT E
MEMORANDUM OF LEASE
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STADIUM OPERATING AGREEMENT
This Stadium Operating Agreement (this "Agreement") is made and entered into this [__]
day of [], 2019 (the "Execution Date"), 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") 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 ("MEP"), and [MIAMI BECKHAM
UNITED, LLC], a [ 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".
WITNESSETH:
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 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, the Parties intend for an approximately 10.5 -acre portion of the Demised
Property (the "Stadium Property"),' as legally described in Exhibit A, to be developed and used
for a professional soccer complex inclusive of an approximately 25,000 -seat MLS stadium and
related facilities (the "Stadium") and the remaining portion of the Demised Property (the
"Ancillary Development Property") to be used for ancillary development (the "Ancillary
Development");
WHEREAS, contemporaneously with the execution of this Agreement, the Parties are
entering into (a) the Master Lease with respect to 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 Construction Administration Agreement (the "Construction
Administration Agreement") that provides for the design, development, and construction of the
Stadium, which such Construction Administration Agreement is incorporated herein and made a
part hereof,
' NTD: City to advise whether it wishes to add acreage to Stadium Property to build a Public Plaza.
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WHEREAS, this Agreement is being executed in conjunction with the Construction
Administration Agreement to provide for the operation and management of the Stadium by MBU;
WHEREAS, contemporaneously with the execution of this Agreement, the Parties are
entering into that certain Non-Relocation Agreement (the "Non-Relocation Agreement")
pursuant to which MBU and MFP agree to cause the Team to play all of its Home Matches in the
Stadium as a material inducement to the City to enter into this Agreement;
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
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.
WHEREAS, the Parties desire that this Agreement set forth their full and complete
understanding with respect to subject matter herein contained.
NOW, THEREFORE, FOR AND IN CONSIDERATION of the premises, the mutual
promises and covenants herein contained, and other good and valuable consideration, the receipt,
sufficiency and adequacy of which are expressly acknowledged, the Parties, each intending to be
legally bound, do hereby mutually agree as follows:
1. Incorporation of Recitals. The above recitals are hereby confirmed as correct
and incorporated herein by reference.
2. Definitions. Capitalized terms not otherwise defined herein shall have the meanings
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 Master Lease, the provisions contained in this Agreement shall govern and control.
As used herein, the following terms shall have the following meanings:
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controls.
(a) Affiliate(s) shall mean, for any Person, any other Person that such Person
(b) Agreement shall have the meaning set forth in the Preamble hereto.
(c) Ancillary Development shall have the meaning set forth in the recitals of
this Agreement.
(d) Ancillary Development Property shall have the meaning set forth in the
Recitals hereto.
(e) Applicable Law(s) shall mean any and all applicable laws, statutes, codes,
ordinances, rules, regulations, authorizations, orders, judgments, decrees, injunctions and other
requirements of any and all Governmental Authorities, 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.
(f) Business Day shall mean a day of the year that is not a Saturday, Sunday
or Legal Holiday.
(g) Capital Maintenance and Repairs shall mean the provision of all labor,
services and materials necessary to maintain, repair, restore and/or replace, when reasonably
necessary, all structural components (which may include, but not be limited to, foundations,
footings, structural members, piers, columns, walls, roofs, ramps and steps), system components
(which may include, but not be limited to, energy management and control programs, electrical
components, heating and hot water systems, air conditioning, ventilating, plumbing, gas and water
systems and escalators, elevators and dumb waiters) and/or integral parts (which may include, but
not be limited to, drainage systems and light towers) of the Stadium and/or the Stadium Property
in a manner consistent with Comparable MLS Stadiums of a character typically required to be
capitalized under generally accepted accounting procedures, as a result of any damage, destruction,
ordinary wear and tear or functional obsolescence, and including, but not limited to, those items
set forth in Exhibit B-1 of this Agreement and expressly excluding Routine Maintenance.
(h)
(i)
Florida.
Agreement.
(k)
of this Agreement.
(1)
Agreement.
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City shall have the meaning set forth in the Preamble of this Agreement.
City Commission shall mean the City Commission of the City of Miami,
City Events shall have the meaning set forth in Section 7(e) of this
City Indemnified Parties shall have the meaning set forth in Section 26(a)
Claim or Claims shall have the meaning set forth in Section 25 of this
(m) Code shall mean the Code of Ordinances of the City of Miami, Florida, or
any other Governmental Authority having jurisdictional authority over the Stadium Property and
future development of the Stadium Property.
(n) Comparable NMS 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.
(o) Defaulting Party shall have the meaning set forth in Section 37(a) of this
Agreement.
(p) Default Rate shall have the meaning set forth in Section 37(b) of this
Agreement
(q) Discretionary Improvements shall have the meaning set forth in Section
20(a) of this Agreement.
(r) Disqualified Person means any Person who, as of the time when the
applicable transaction occurs or approval or consent of the City manager is requested: (i) shall
have committed a material breach under any material lease or other written agreement with the
City; (ii) has had any criminal felony convictions within the immediately preceding ten (10) years;
(iii) has a reputation (as evidenced by newspaper articles or other media reports of the mainstream
press which are not subsequently retracted) for corrupt or unlawful business dealings; or (iv) is
named on any Government List.
(s) Effective Date shall be first day of the first month after the later of (i) ten
(10) days after the date that the City Commission approves this Agreement, and (ii) the date this
Agreement is last executed by MBU and the City.
(t) 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.
(u) Entitlements shall mean such permits, approvals, zoning changes and any
and all land use approvals from Governmental Authorities necessary to construct, use and operate
the Stadium Property in a manner consistent with the Improvements or uses contemplated by this
Agreement.
(v) 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 Stadium Property or from off-site contamination or pollution
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that has migrated thereto; or (iii) any violation of Environmental Laws at or on any part of the
Stadium Property.
(w) 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.
(x) 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.
(y) FF&E shall have the meaning set forth in Section 18 of this Agreement.
(z) Force Majeure shall mean acts of God, natural disaster, accidents, fire or
other casualty, earthquake, hurricane, tornadoes, named storms, flood, war, riot, intervention by
civil or military authorities of government, insurrection, or other civil commotion, governmental
action (except that, as to the City, governmental action shall exclude any governmental action or
inaction with respect to the granting or withholding of any governmental approvals or permits
needed for the development of the Stadium within the control of the City), material shortages,
industry wide strikes, boycotts, lockouts or labor disputes (including, without limitation, labor
disputes involving MLS players that result in missed matches), or any other similar or like event
or occurrence beyond the reasonable control of a Party hereto, that causes such Party to be delayed
or hindered in, or prevented from, the performance of any covenant or obligation hereunder.
(aa) Governmental Authority or Governmental Authorities shall mean any
federal, state, county, municipal or other governmental department, entity, authority, commission,
board, bureau, court, agency, or any instrumentality of any of them having jurisdiction with respect
to the Stadium or Stadium Property and any Persons in connection with the design, development,
construction, equipping, commissioning, use, occupancy, possession, operation, maintenance and
management of the Stadium or Stadium Property.
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(bb) Government List shall mean any list issued by a Governmental Authority
of individuals and/or entities engaged in terrorist activities, including, but not limited to, the
following: (i) list of Specially Designated Terrorists (SDTs) issued by OFAC pursuant to
Executive Order 12947; (ii) list of Specially Designated Global Terrorists (SDGTs) issued by
OFAC pursuant to the Executive Order; and (iii) list of Foreign Terrorist Organizations (FTOs)
issued by the United States Secretary of State.
(cc) 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.
(dd) Home Match shall mean all scheduled and rescheduled exhibition,
tournament, friendly, regular season and postseason home matches, including but not limited to
MLS matches.
(ee) Impositions shall mean all taxes, including, but not limited to, ad valorem
taxes, special assessments, sales taxes, and other charges, impositions, assessments, fees or any
other levies by any Governmental Authority or other entity with appropriate jurisdiction and any
and all liabilities (including interest, fines, penalties or additions) with respect to the foregoing.
(ff) Improvements shall mean the 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 Public Infrastructure.
(gg) Indemnity Claim shall have the meaning set forth in Section 26(a) of this
Agreement.
(hh) Initial Term shall have the meaning set forth in Section 3(a) of this
Agreement
(ii) Lease Agreements shall mean, collectively, this Agreement, the Master
Lease, the Construction Administration Agreement, 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.
0j) Lease Year shall refer to each twelve (12) month period running from the
Possession Date and each anniversary thereof.
(kk) Legal Holiday shall mean any day, other than a Saturday or Sunday, on
which the City's administrative offices are closed for business.
(11) Major League Soccer or MLS shall mean, depending on the context, any
or all of (i) the governing body(ies) of MLS and/or (ii) the MLS Teams acting collectively.
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(mm) Marks shall mean any and all trademarks, service marks, copyrights,
names, symbols, words, logos, colors, designs, slogans, emblems, mottos, brands, designations,
trade dress, domain names and other intellectual property (and any combination thereof) in any
tangible medium.
(nn) Master Lease shall have the meaning set forth in the recitals of this
Agreement.
(oo) MBU Event shall mean any and all events authorized, promoted and/or
staged by MBU or by third party licensees of MBU at the Stadium or the Stadium Property
hereunder, including, without limitation, Home Matches, other sporting events, special events,
concerts, festivals, fairs, attractions, corporate events, business conferences, conventions,
community festivals, fantasy camps and/or other lawful activities.
(pp) Media Rights means the right to control, conduct, sell, license, publish,
authorize and grant concessions and enter into agreements with respect to all media, means,
technology, distribution channels or processes, whether now existing or hereafter developed and
whether or not in the present contemplation of the Parties, for preserving, transmitting,
disseminating or reproducing for hearing or viewing, MBU Events and descriptions or accounts of
or information with respect to such MBU Events, including by internet, radio and television
broadcasting, print, film, photographs, video, tape reproductions, satellite, closed circuit, cable,
digital, broadband, DVD, Blu-ray, satellite, pay television, streaming and all comparable media.
(qq) MFP shall have the meaning set forth in the preamble of this Agreement.
(rr) MLS Approval shall mean any approval, consent or no -objection letter
required to be obtained from MLS pursuant to the MLS Governing Documents (as exercised in
the sole and absolute discretion of MLS).
(ss) MLS 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.
(tt) MLS Rules and Regulations shall mean (x) the MLS Governing
Documents, (y) any present or future agreements or arrangements entered into by, or on behalf of
MLS, including, without limitation, agreements or arrangements entered into pursuant to the MLS
Governing Documents, and (z) the present and future 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.
(uu) 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 Authority advising that no further action is
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necessary with respect to the Release(s) of Hazardous Material(s) at the Stadium Property in order
to meet the requirements of Environmental Law with respect to such Release(s).
(vv) Non -Defaulting Party shall have the meaning set forth in Section 37(a) of
this Agreement.
(ww) Non -Relocation Agreement shall have the meaning set forth in the recitals
of this Agreement.
(xx) Option or Options shall have the meaning set forth in Section 3(b) of this
Agreement.
(yy) Parking shall have the meaning set forth in Section 8 of this Agreement.
(zz) Party or Parties shall have the meaning set forth in the Preamble of this
Agreement
(aaa) Permit shall mean any permit or authorization issued or required to be
issued by the appropriate Governmental Authority 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.
(bbb) Person or Persons shall mean any natural person, sole proprietorship,
corporation, association, partnership, trust, limited liability company, limited liability association,
unincorporated association or organization, joint venture, joint stock company, Governmental
Authority, political subdivision or any other entity.
(ccc) Possession Date shall mean the first Business Day following the last to
occur of the following: (i) the approval by the City Commission authorizing the City to enter into
the Lease Agreements, (ii) the execution of the Lease Agreements by the Parties, (iii) Delucca
Enterprises, Inc. vacating the approximately [131.07 acres] adjacent to the City's Grapeland Park
and the City delivering to MFP possession of the Demised Property, in its entirety, free of any
Encumbrances; and (iv) MFP's receipt of all necessary Entitlements for the construction of the
Stadium. MFP may waive, at its sole and absolute discretion and either fully or partially, conditions
(iii) and (iv) above and elect to take possession of the Demised Property without satisfaction of
the conditions set forth therein.
(ddd) Pre -Existing Environmental Conditions means any and all
Environmental Conditions affecting the Stadium Property, whether known or unknown, existing
as of the Effective Date.
(eee) Project means, collectively, the development and construction of the
Stadium obligations set forth in the Construction Administration Agreement with respect to the
Stadium, 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
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Rehabilitation Agreement, and the construction and development obligations set forth in the
Community Benefits Agreement.
(fff) Promotional Rights means and includes any and all of the following rights
as applied to, arising out of or connected in any way with MLS, MFP, MBU, the Proprietary
Indicia, MBU's MLS operating rights, the Stadium Project (as such term is defined in the
Construction Administration Agreement), and MBU Events and other permitted uses of the
Stadium:
(i) rights of exploitation, in any format now known or later developed,
through advertising, promotions, marketing, merchandising, licensing, food services, franchising,
sponsorship, publications, hospitality events or through any other type of commercial or
promotional means, including, but not limited to, advertising by interior, exterior or perimeter
signage, through printed matter, such as programs, posters, letterhead, press releases, newsletters,
tickets, photographs, franchising, concessions, restaurants, party rooms, uniforms, schedules,
displays, sampling, premiums and selling rights of any nature, the right to organize and conduct
promotional competitions, to give prizes, awards, giveaways, and to conscript official music, video
or other related data or information;
(ii) Media Rights, in any format now known or later developed,
including, but not limited to, the right to broadcast, transmit, display and record images and
recordings, in any and all media now known or hereafter devised, including, but not limited to,
radio, television, cable, satellite and internet;
(iii) rights to name any structure or area within the Stadium Property,
including any portion of the Stadium; and
(iv) rights to create, use, promote and commercialize any representation
of any structure within the Stadium Property, in whole or in part, or the name or contents thereof,
for licensing, promotional, publicity, general advertising and other suitable purposes, including,
but not limited to, the creation, use, promotion and commercialization of text, data, images,
photographs, illustrations, animation and graphics, video or audio segments of any nature, in any
media or embodiment, now known or later developed; and all other rights of marketing and
advertising, exploitation, in any format, now known or later developed, and associated promotional
opportunities.
(ggg) Proprietary Indicia means all Marks, together with any other trademarked,
copyrighted or copyrightable properties, in any format now known or later developed, that are or
become owned or controlled by MBU, MFP, MLS or any Affiliate thereof, which are or become
commercially identified or associated with MBU, MFP, MLS or any Affiliate thereof, or are now
or hereafter licensed by or to MBU, MFP, MLS or any Affiliate thereof.
(hhh) Public Infrastructure shall mean 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 Property and the Stadium, including, but not limited to, the provision of, or
upgrades and additions to, (i) storm water management/drainage systems; (ii) grading and paving;
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(iii) water distribution and sanitary sewer systems; (iv) electrical distribution and
telecommunications systems; and (v) on-site and off-site roadway improvements.
(iii) 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.
(jjj) Routine Maintenance shall mean the provision of labor, services and
materials for the Stadium and/or Stadium Property, conducted in a manner otherwise reasonably
necessary to (a) maintain the Stadium and/or Stadium Property in good, clean working order and
repair and (b) conduct routine and preventative maintenance consistent with Comparable MLS
Stadiums, normal wear and tear excepted, and which are of a routine, regular and predictable nature
given the age and useful life of the Stadium and/or Stadium Property, and the manner in which
they have been utilized, and including, but not limited to, those items set forth in Exhibit B-2 of
this Agreement.
(kkk) Sanctioned Country 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).
(111) Sanctions shall mean economic sanctions administered by OFAC, the U.S.
Department of State, or any other applicable economic sanctions authority.
(mmm)Signage means all signage (whether permanent or temporary) in or on the
Stadium Property, including scoreboards, digital displays, jumbotron or other replay screens,
banners, fascia boards, displays, message centers, advertisements, signs, digital displays, and
marquee signs.
(mm) Significant Portion shall have the meaning set forth in Section 29 of this
Agreement
(000) Stadium Property shall have the meaning set forth in the recitals of this
Agreement and as generally set forth in Exhibit A attached hereto and incorporated herein by
reference, and all physical improvements thereto. The Parties agree that the legal description of
the Stadium Property may be refined in the Construction Administration Agreement and agree that
the final agreed legal description shall be memorialized in a written agreement signed by the
Parties prior to Substantial Completion consistent with the Construction Administration
Agreement.
(ppp) Stadium Rent shall mean the annual fee payable by MBU in connection
with this Agreement pursuant to Section 4(a).
(qqq) Substantial Completion shall mean the occurrence of all of the following:
(i) the design professional has delivered to the Parties a certificate certifying that the Stadium has
been substantially completed subject to the completion of minor punch list items that do not
materially affect the use or occupancy of the Stadium, (ii) all required governmental inspections
and certifications have been made and posted and all necessary MLS Approvals have been
10
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obtained, and (iii) a temporary or permanent Certificate of Occupancy has been issued in respect
of the Stadium; provided that the Certificate of Occupancy shall be delivered to MBU promptly
following its issuance.
(rrr) Team shall have the meaning set forth in the recitals of this Agreement.
(sss) MBU shall have the meaning set forth in the Preamble of this Agreement.
(ttt) Targeted Tax shall mean any Imposition or surcharge imposed by the City,
or any Governmental Authority created by, or directly or indirectly controlled by, the City, which
Imposition (a) is assessed, levied, charged, confirmed or imposed upon or with respect to, or
payable out of or measured by, the proceeds resulting from the sale of tickets or other admissions
charges for, or the number of, admissions to live or video broadcast entertainment events,
including, without limitation, professional or amateur sports events or exhibitions, concerts or
general, family or other targeted audience shows, performances, or exhibitions, (b) is assessed,
levied, charged, confirmed or imposed upon or with respect to, or payable out of our measured by,
the proceeds resulting from charges for parking within the Stadium Property or the cost or value
thereof, or (c) is an Imposition that by its terms or effect is not of general application, but rather
exclusively or disproportionately is imposed upon or impacts (i) MBU and/or MFP, (ii) any of the
professional sports teams alone, or in combination with one or more of the others or in combination
with other professional sports teams playing their home games in venues located in the City, (iii)
the parking within the Demised Property, (iv) the development of the Stadium alone or in
conjunction with some or all venues in the City or Miami -Dade County where professional or
amateur sports events or exhibitions, concerts or general, family or other targeted audience shows,
performances or exhibitions are conducted, or (v) any patron of the Stadium or seller of tickets to
events within the Stadium Property by reason of an Imposition imposed upon or measured by the
attendance at any event, exhibition, concert, show or performance of the type presented at the
Stadium Property or at some or all of the comparable venues within the City. Notwithstanding the
foregoing, the term Targeted Tax does not include franchise or income taxes of general application
throughout the City or sales or use taxes of general application throughout the City that do not
disproportionately impact the sales or use of items of a type primarily sold or used at the Stadium
Property alone or in combination with other similar properties or venues and not in the general
business community.
(uuu) Term shall have the meaning set forth in Section 3(b) of this Agreement.
(vvv) Termination Events shall have the meaning set forth in Section 37(c) of
this Agreement_
(www) Trade Fixtures shall mean, collectively, fixtures that are funded solely by
MBU, and which are not integral to the operation of the Stadium as an MLS facility, but rather are
supplemental or additive to the Stadium and are capable of removal. Any Trade Fixture desired to
be installed by MBU requires the City's prior written consent, such consent not to be unreasonably
withheld, delayed or conditioned.
(xxx) 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,
11
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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 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. 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.
3. Term.2
(a) Initial Term. The initial term of this Agreement shall commence on the
Execution Date and terminate on the termination date of the initial term of the Master Lease, unless
earlier terminated or extended as provided for herein (the "Initial Term"). MBU hereby agrees to
cause the Team to play its Home Matches at the Stadium for every MLS season during the Initial
Term. For the avoidance of doubt, the term of this Agreement shall be concurrent with the term of
the Master Lease, subject to the extension and termination rights set forth therein and herein.
(b) Renewal Options. Provided that MBU is not in breach or default under this
Agreement, MBU shall have the right to exercise two (2) options (each an "Option" and
collectively, the "Options") to extend the Term, each for thirty (30) Lease Years. MBU shall
provide written notice to the City that it is exercising the first Option (i) no later than one hundred
eighty (180) days, and (ii) no earlier than three hundred sixty-five (365) days prior to the expiration
of the Initial Term; and may exercise the second Option by providing written notice to the City
that it is exercising the second Option (i) no later than one hundred eighty (180) days, and (ii) no
earlier than three hundred sixty-five (365) days prior to the expiration of the first Option. If MBU
fails to give written notice of the exercise of any Option within the foregoing required notice
periods, MBU's right to exercise such Option shall nevertheless continue until the earlier of (i)
thirty (30) days after the City has given MBU written notice of MBU's failure to exercise such
Option (in which event MBU may exercise such Option at any time until the expiration of such
30 -day period); and (ii) the date within such 30 -day period in which MBU exercises such Option
or sends written notice to the City that it does not intend to exercise such Option. The Parties intend
to avoid forfeiture of MBU's rights to extend the Term under any of the Options because of MBU's
inadvertent failure to give timely written notice. The Initial Term plus the term of any Option
exercised shall collectively be referred to in this Agreement as the "Term." At the expiration or
earlier termination of the Term, the Stadium Property shall revert back to the City in accordance
with Section 21.
(c) Holdover. At the expiration of the Term, or any earlier termination of this
Agreement, MBU shall yield up immediate possession of the Stadium Property and the Stadium
2 NTD: To discuss Term with the City.
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to the City. In the event that MBU fails to do so, then in addition to such other rights and remedies
as the City may have, MBU and MFP shall jointly and severally be liable to pay to the City for the
whole time such possession is withheld beyond the date of expiration or termination of this
Agreement, a sum per day equal to Two Hundred Percent (200%) times 1/365th of the aggregate
of the Stadium Rent paid or payable to the City for the immediately preceding calendar year. Such
payment shall not, however, be deemed to grant further possessory rights to MBU or MFP.
4. Stadium Rent.
(a) Annual Rent. MBU covenants and agrees to pay to the City annual rent
equal to (the "Stadium Rent" ).3
(i)
(b)
5. Ownership of the Stadium and the Stadium Property. The Stadium Property shall
be owned in fee simple by the City, with MBU being granted a license interest in the Stadium
Property. No estate, tenancy, or other real property interest is conveyed to MBU. Title to the
Stadium, the Improvements and the FF&E shall, upon being added thereto or incorporated therein,
automatically vest in MBU until the expiration or sooner termination of the Term, whereupon,
subject to Section 21, such title (except as otherwise set forth herein) shall automatically pass to,
vest in, and become the absolute property of the City in fee simple, and free and clear of all
encumbrances other than (a) any liens assessed but not yet due and payable for which MBU (and/or
MFP, as applicable) shall remain obligated to pay to the extent that they are allocable to the period
prior to the termination of this Agreement), (b) any rights surviving an early termination of this
Agreement (i.e., prior to the stated expiration date of the Term) which are granted hereunder, and
(c) any permitted title exceptions and any other title matters consented to in writing by the City
Manager and the City during the Term. Subject to Section 21, if requested, MBU (and/or MFP, if
applicable) will convey the Improvements to the City by special warranty deed upon the expiration
or sooner termination of this Agreement.
6. Covenant As4ainst Waste: Citv Inspection of Property.
(a) Waste. MBU covenants not to allow any waste (as defined by any
Applicable Law) with respect to the Stadium Property or the Improvements or any part thereof.
The provisions of this Section 6(a) 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.
(b) Inspection of Property. The City shall have the right to enter and inspect the
Stadium upon reasonable notification to MBU.
3 NTD: To discuss formulation of rent and allocation of rent between Master Lease and Stadium Lease. Upon
resolution of this issue, Section 4(a) shall be revised to conform to Article 4 of the Master Lease.
13
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(i) Riaht 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.
(ii) Compliance. If any inspection or audit detects a violation of MBU's
obligation to comply and to keep the Stadium Property and/or the Improvements in compliance
with the requirements of this Agreement (including, without limitation, the requirement that the
Stadium Property and the Improvements 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 Improvements 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 Stadium Rent under this Agreement on demand by
the City.
(iii) Action by the Citv. If MBU fails to keep the Stadium Property or
the Improvements in compliance with the requirements of this Agreement (including, without
limitation, the requirement that the Stadium Property and the Improvements be in compliance in
all material respects with the ADA) and an Event of Default has occurred and is continuing on
account thereof, then the City, upon reasonable prior written notice to MBU, may take whatever
action is reasonably necessary to bring the Stadium Property and/or the Improvements into
compliance, to the extent required by Applicable Laws. MBU agrees to provide the City access to
the Stadium Property and the Improvements and pay, as additional Stadium Rent, all costs
reasonably incurred by the City in bringing the Stadium Property and/or the Improvements into
such compliance. The City, however, shall have no obligation to bring the Stadium Property or the
Improvements into compliance and nothing herein shall be construed as creating such an obligation
on the City.
(iv) Minimizing Interference with Business Operations. Any inspection
or audit described in this Section 6(b) shall be done in such a manner so as to reasonably minimize
any interference with any business operations on the Stadium Property.
7. Use of the Stadium and the Stadium Property.
(a) Exclusive Use. Except as otherwise specifically set forth herein, in
accordance with the terms and conditions of this Agreement, MBU shall have the exclusive right
and obligation to use, manage, operate and permit designated third parties to use the Stadium and
the Stadium Property for all purposes allowable under and in compliance with all applicable laws
14
OMM US:77096356.10
during the Term including, without limitation, the exclusive right and obligation to exhibit, market
and promote, schedule and play Home Matches in the Stadium, to authorize, market and promote
and/or stage other MBU Events in accordance with all applicable laws, and enter into contracts,
retain vendors and otherwise take all other actions reasonably necessary and desirable to exploit
the exclusive rights set forth herein, as long as such events and actions do not materially and
adversely interfere with the principal purpose of the Stadium as an MLS stadium. The exclusive
rights of MBU or its permitted assignees and/or sub -licensees hereunder shall include, without
limitation, the following rights
(i) The right to exhibit, promote, schedule and play Home Matches,
clinics, promotions and fan activities and to set the terms, conditions, pricing and parameters of
admittance thereto (provided, however, that this Section 7(a)(i) shall not limit the Team from
hosting a limited number of matches in other locations pursuant to the Non -Relocation
Agreement);
(ii) The right to license and operate luxury suites, club suites, party
suites, stadium clubs, dining clubs, bars and other premium areas on a year-round basis;
(iii) The right to license and operate any and all bars, restaurants, food
courts, food service facilities, food trucks, game rooms, business centers and/or other retail and
entertainment facilities or enter into liquor, food service or other licenses in connection with any
such facilities;
(iv) The right to establish the prices, rates, fees or other charges for
goods, services or rights, including, without limitation, concessions and ticket charges;
(v) The right to license and operate a Team or third -party retail
merchandise store or stores;
(vi) The right to license and operate the sale of food, alcoholic
beverages, non-alcoholic beverages, souvenirs and other items normally considered "concessions"
for a professional sports team or in connection with other permitted MBU Events;
(vii) Subject to compliance with all applicable laws and regulations, the
right to display, control, conduct, license, permit, sell and enter into agreements regarding the
display of advertising, sponsorship and promotional activity, signage, designations (including
"pouring rights" or similar designations), rights of exclusivity and priority, and messages and
displays of every kind and nature, whether now existing or developed in the future, including but
not limited to permanent, non -permanent and transitory signage or advertising displayed on
permanent or non -permanent advertising panels or on structures, fixtures or equipment (such as
scoreboard or canopy advertising) whether within or on the exterior of the Stadium or elsewhere
in or around the Stadium or the Stadium Property; audio or video public address advertising and
message board advertising; programs; virtual advertising; sponsor -identified projected images;
advertising on or in schedules, admission tickets and yearbooks; all other print and display
advertising; promotional events sponsored by advertisers; advertising display items worn or
carried by concessionaires or personnel engaged in the operation of any MBU Event; logos,
slogans, uses of trademarks or other forms of advertising affixed to or included with cups, hats,
15
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clothing, soccer equipment or other items; field -related advertising; and other concession,
promotional or premium items; provided, however that any such activity shall comport with
community standards of decency;
(viii) The right to own and license the Stadium and Stadium Property
name, and the rights to create, use, promote and commercialize any representation of the Stadium
or the Stadium Property, in whole or in part, or the name or contents thereof, for licensing,
promotional, publicity, general advertising and other suitable purposes, including, without
limitation, the creation, use, promotion and commercialization of text, data, images, photographs,
illustrations, animation and graphics, video or audio segments of any nature, in any media or
embodiment, now known or later developed, and all other rights of marketing and advertising,
exploitation, in any format, now known or later developed, and associated promotional
opportunities; provided, however that any such activity shall comport with community standards
of decency and subject to the terms and conditions of Section 12 below;
(ix) The right to license any and all trademarks, service marks,
copyrights, names, symbols, words, logos, colors, designs, slogans, emblems, mottos, brands,
designations, trade dress, domain names and other intellectual property (and any combination
thereof) in any tangible medium;
(x) The right to transmit, broadcast, telecast, cablecast, webcast, stream,
podcast, e-mail, distribute or otherwise disseminate, via any forms of technology or
communication now known or hereafter created, all MBU Events, and all data and information
related thereto, for preserving, transmitting, disseminating or reproducing for hearing or viewing
MBU Events and descriptions or accounts of or information with respect to MBU Events,
including via internet, radio, television broadcasting, print, film, photograph, video, tape
reproduction, satellite, closed circuit, cable, digital, broadband, DVD, satellite, pay television and
all comparable media now existing or hereafter developed;
(xi) The right to license or otherwise contract regarding the use of space
on the roof or in other locations with telecommunications service providers for the permanent
placement of antennae and equipment, subject to review and approval by the City (such approval
not to be unreasonably conditioned, withheld or delayed) and compliance with all applicable laws
and regulations;
(xii) The right to operate the Team's offices;
(xiii) The right to employ or retain (as agents, employees or independent
contractors), suspend, terminate, supervise and control, in accordance with applicable laws, all
personnel (whether full-time, part-time or temporary) that MBU determines to be necessary,
including, without limitation, ticket sellers, ticket takers, ushers, medical personnel, maintenance
crews and security personnel (other than public safety personnel), and determine the
compensation, benefits and other matters in connection with such personnel;
(xiv) The right to market and promote MBU Events and identify and
contract with all contractors and vendors in connection with the ticket operations, concessions and
advertising relating thereto;
16
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(xv) The right to control the issuance of all credentials for MBU Events;
and
(xvi) The right to license, operate and conduct such other lawful activities
associated with MLS, the Team or its business.
(xvii) The right to construct, operate, and display onsite and offsite
premise Signage on the interior, exterior or other portions of the Stadium Property as MBU deems
necessary and desirable so long as such Signage complies with Applicable Laws and does not, in
the City's reasonable discretion, conflict with standards of public decency, including, without
limitation, association with tobacco or adult entertainment.
(xviii) The right to sell, license or otherwise grant naming rights related to
any structure within, or portion of, the Stadium Property. MBU agrees that such name shall not:
(i) be obscene, as defined by Section 847.001(10), Florida Statutes; or (ii) promote or cast a
positive light on the government of any country or territory subject to comprehensive economic
sanctions administered by OFAC, the U.S. Department of State, or any other applicable economic
sanctions authority (as of the Execution Date and without limitation, Cuba, Iran, North Korea,
Syria, and the Crimea region of Ukraine). Notwithstanding the foregoing, the City may disapprove
of any name that is, in its reasonable discretion, in conflict with standards of public decency,
including, without limitation, association with tobacco or adult entertainment. MBU shall provide
the City a non-exclusive license to use the stadium name and symbolic representations thereof for
the purposes described in this Section 7(a)(xviii).4
(b) Right to Sublicense. MBU shall be permitted to enter into contracts or
licenses, retain vendors and otherwise take all other actions necessary and desirable to utilize the
exclusive rights set forth herein, provided the same are lawful and are within the scope of this
Agreement and otherwise within the scope of operating the Stadium as an MLS stadium for the
Team. For the avoidance of doubt, MBU shall not have the right to sublicense any rights hereunder
to any third parties to the extent such sublicense is not related to the use of the Stadium by the
Team, without the prior written consent of the City, not to be unreasonably withheld, conditioned
or delayed. Notwithstanding the exercise of any rights to sublicense, MBU shall remain
responsible to the City under this Agreement. Any contracts or sublicenses entered into subject to
this Section 7(b) shall include the insurance obligations set forth in Section 25, including
maintaining the City as an additional insured thereunder.
(c) All Areas. Other than during City Events, MBU shall have the exclusive
right to use and possess all areas of the Stadium and the Stadium Property during the Term of this
Agreement subject to the City's right to enter and inspect the Stadium for reasonable purposes
from time to time during normal business hours and following the delivery of prior notification to
MBU, including as set forth in Section 6(b).
(d) Environmental Compliance. MBU shall ensure compliance with the
provisions of Article 4 of the Construction Administration Agreement during the Term, which
provisions are incorporated herein and made a part hereof. If any Hazardous Materials are released
4 NTD: City to advise if they desire approval over Signage and naming rights.
17
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or discharged on or about the Stadium Property in violation of Environmental Law at any time
during the Term, the Party discovering same shall promptly notify the other Parties orally within
forty-eight (48) hours of discovery and in writing within five (5) Business Days thereafter. 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 (as
defined in the Park Rehabilitation Agreement) 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 Stadium Property.
(e) Citv Events.5
(i) During the Term, the City shall have the right to use any or all
portions of the Stadium other than MBU's offices for up to [ten (10)] City -sponsored civic -oriented
non-profit events (not to exceed twenty (20) calendar days total but subject to a potential increase
in the number of days per Section 7(e)(iii) below if agreed to by MBU) ("City Events") per year
outside of the MLS season.
(ii) MBU (or its sublicensed vendors) will be responsible for staffing,
managing, and operating the Stadium (including set-up, trash and litter clean-up at cost, and
utilities, at cost) during all City Events, and the City, as applicable, shall, unless otherwise agreed,
be responsible for paying MBU its direct costs associated with such staffing, managing and
operating (including set-up, trash and litter clean-up, at cost). Except for such reimbursement of
expenses incurred by MBU in connection with the staffing of City Events, the City shall have the
right to retain all revenues from such City Events.
(iii) Prior to each MLS season, but no later than " of the year
preceding such season, representatives of MBU and the City shall meet to discuss and agree in
writing upon the dates when the City may use the Stadium for City Events, such dates and events
subject to MBU's prior, written approval in its reasonable discretion, not to be unreasonably
withheld, delayed or conditioned, in each instance and the City acknowledges and agrees that the
Team's Home Matches have priority over City Events. Notwithstanding the foregoing, MBU
agrees in good faith to reasonably allow proposed modifications to the agreed upon schedule of
City Events subject to proposed and anticipated Home Matches and other MBU Events. The
reasonableness of such modifications is to be determined in light of the justification of the
requesting party for the schedule modification, the timeliness of the schedule modification request,
and the frequency of schedule modification requests.
(iv) The City is self-insured for all liability claims and related expenses
pursuant to Section 768.28, Florida Statutes.
(f) Citv Tickets.6 For every MBU Event, MBU shall make available to the City
L] tickets and [_] parking passes, in addition to a luxury suite for [_] Home Matches for every
MLS season during the Term. The luxury suite, tickets and parking provided to the City hereunder
shall be used for tourism promotion and economic development purposes. In addition to the
5 NTD: Consider whether to include this provision in the Community Benefits Agreement instead.
6 NTD: Consider whether to include this provision in the Community Benefits Agreement instead.
18
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foregoing, for every Home Match taking place during the Term, MBU shall donate tickets to be
contributed to local youth programs in the following amounts: [_].
(g) No Discrimination. MBU shall not discriminate in violation of any
Applicable Laws upon the basis of race, color, religion, sex, disability, marital status, or national
origin in the sale, lease or rental, or in the use or occupancy, of the Stadium Property or the
Improvements.
(h) Improvements to be Oven to Public. As a general matter, the Stadium
Property is intended to be "open to the public" as much as practical. Accordingly, during the Term,
the Stadium Property shall be open to the general public without discrimination, subject to
reasonable operational rules, regulations and restrictions typically imposed by operators of
stadiums similar to the Stadium; provided, however, that: (i) the businesses operating on the
Stadium Property may charge fees for goods, commodities or services (including, without
limitation, MBU Events) as they may establish from time to time, so long as such services are
made available to the general public on a nondiscriminatory basis upon the payment of such fees;
(ii) MBU may operate or allow the operation of membership clubs (unless they are specifically
listed in the Master Lease as Prohibited Uses) which may charge membership fees, so long as such
clubs are made available to the general public on a nondiscriminatory basis upon the payment of
such membership fees; and (iii) nothing contained herein shall be deemed to require public access
to any areas not typically made available to the public (e.g., service areas, storage areas, "bask of
the house" areas, etc.).
(i) aqfeety. MBU shall take commercially reasonable actions to ensure that the
Stadium Property is a safe environment for the general public. The City, as owner of the Stadium
Property, shall have no responsibility for, or liability whatsoever to MBU, MFP, and/or any other
Person(s) having any interest in the Stadium Property in connection with provision of security
services to the Stadium Property.
0) Continuous Overation. Subject to any interruptions or closures on account
of any Unavoidable Delays, emergencies or other exigent circumstances or on account of any
repairs or alterations required or permitted hereunder, and depending on whether the Stadium
Project has received temporary certificates of occupancy or certificates of occupancy, as
applicable, MBU shall at all times during the Term: (i) operate the Stadium Property in such
manner as will, in MBU's good faith reasonable business judgment, be reasonably likely to
maximize the [Gross Revenues]7 produced by the Stadium; and (ii) keep the Stadium open for
business on a continual basis during the usual days and hours for such business as are customary
for the applicable type of use. The foregoing provisions shall not be deemed to require MBU to
ensure that all of the available facilities at the Stadium Property are open or leased to third parties
at all times, inasmuch as: (A) there will need to be occasional adjustments of usage of facilities;
and (B) there will be some portion of space that will be remain vacant from time to time given
then -existing market conditions and turnover of space tenants.
8. Parkin. As further set forth in Section [5.19] in the Master Lease, MFP shall ensure
that parking is constructed on the Ancillary Development Property in a manner, location and layout
'NTD: Inclusion of this defined term subject to resolution of the description of the Stadium Rent.
19
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acceptable to the Parties to the benefit of the Stadium Property and the Stadium (the "Parking").
During the Term, at no cost to MBU or the City, MFP shall dedicate (a) [150] daily parking spaces
of the Parking for use by Stadium employees and other entrants and (b) [2500] parking spaces of
the Parking for every day on which an MBU Event is occurring. MFP and MBU shall share the
right to manage, operate, use and sublicense the Parking.8
9. Discharge of Obligations: No Liens.
(a) During the Term of this Agreement, MBU will discharge or cause to be
discharged any and all obligations incurred by MBU that give rise to any liens on the Stadium
Property, it being understood and agreed that MBU shall have the right to withhold any payment
to discharge such lien (or to transfer any such lien to a bond in accordance with Applicable Laws)
so long as it is in good faith disputing liability therefor or the amount thereof, provided (i) such
contest of liability or amount operates as a stay of all sale, entry, foreclosure, or other collection
proceedings in regard to such obligations, or disputed payments are escrowed while the parties
negotiate the dispute (pursuant to written escrow agreement to which the lienor is a party), (ii)
such action does not result in the City incurring any expense or liability that MBU does not agree
to reimburse, and (iii) such action does not result in a lien or other encumbrance being recorded
against the Stadium Property. In the event MBU withholds any payment as described herein and
as a result a lien is imposed upon MBU's leasehold interest in the Stadium Property which is not
transferred to bond within ten (10) days of the imposition thereof, it shall give written notice to the
City of such action and the basis therefor, and the City shall reasonably consent to an extension or
deny same detailing the specific reasons for same.
(b) The interest of the City in the Stadium Property shall not be subject in any
way to any liens, including construction liens, for improvements to or other work performed in the
Stadium Property by or on behalf of MBU. This exculpation is made with express reference to
Section 713. 10, Florida Statutes. MBU represents to the City that any improvements which may
be made by MBU to the Stadium Property do not constitute the "pith of the lease" under applicable
Florida case law. MBU shall notify every contractor making improvements to the Stadium
Property that the interest of the City in the Stadium Property shall not be subject to liens.
(c) If any lien is filed against the Stadium Property for work or materials
claimed to have been furnished to MBU, MBU shall cause it to be discharged of record or properly
transferred to a bond under Section 713.24, Florida Statutes, within ten (10) days after notice to
MBU. Further, MBU shall indemnify, defend, and save the City harmless from and against any
damage or loss, including reasonable attorneys' fees, incurred by the City as a result of any liens
or other claims arising out of or related to work performed in the Stadium Property by or on behalf
of MBU.
10. Guaranty of Stadium Lease. Payment of all rents and charges and the performance
of all covenants of MBU contained in this Agreement are guaranteed jointly and severally by MFP
and [individual ultimate owners of MBU] (the "Guarantor") under the Guaranty ("Guaranty")
attached hereto as Exhibit C and incorporated herein by this reference. The Guaranty is a part of
this Agreement and MFP and MBU agree to be bound by the terms of the Guaranty that relate to
'NTD: Parking to be discussed with City (including whether it wishes to share in Parking revenue).
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this Agreement. The execution and delivery to the City of the Guaranty together with MFP's and
MBU's execution of this Agreement is a condition to the effectiveness of the City's obligations
under this Agreement.
11. Revenue Streams. So long as MBU is not otherwise in breach of the Lease
Agreements, and with the exception of any revenues associated with City Events, MBU shall have
the right to retain the revenues associated with the use, operation and management of the Stadium
including, without limitation, revenues from the sale of private suites, club seats, premium seating
licenses, pavilion areas, sponsorships, signage and advertising sales, naming rights, ticket sales,
concessions, merchandise, broadcast, internet and other media revenues, private club membership
fees, catering and restaurant revenues, office space, special event revenues and all other revenues
generated in connection with the Stadium.
12. Naming and Sponsorship Rights. MBU agrees to consult in good faith with the City
on the sale of the naming rights to the Stadium and agrees it will not sell naming rights to the
Stadium to any entity engaged in any business involving tobacco, illegal activity, sexually
suggestive conduct and/or obscene or pornographic materials. Otherwise, MBU shall have the
exclusive right to sell naming rights to the Stadium, and to retain all revenues derived from such
sale. The City acknowledges that MBU reserves the exclusive right to sell sponsorship, entitlement
and/or naming rights to other designated areas of the Stadium and to retain all revenues related to
such sales for such other areas. Following receipt by the City of written notice from MBU of the
name of the Stadium, the City shall exclusively use the name or names given to the Stadium or
any portion thereof in all correspondence, communications, advertising, websites, social media
and promotions the City may undertake or utilize with respect to the Stadium, including all press
releases and in connection with the promotion of any City Events.
13. Marketing and Promotion of the Stadium. MFP and MBU shall use commercially
reasonable efforts to actively market and promote the Stadium. MFP, MBU and the City endeavor
to develop an ongoing promotional relationship for the purpose of promoting the city of Miami as
a desirable and attractive year-round vacation and meeting destination venue and for the promotion
of the Team's matches and ticket sales related thereto. In consultation with the Greater Miami
Convention & Visitors Bureau, MBU shall make available on an annual basis certain promotional
and tourism opportunities. MFP, MBU, the City, and the Greater Miami Convention & Visitors
Bureau shall meet on an annual basis to develop and review a mutually agreeable promotional
plan. As between the City, on the one hand, and MBU and MFP, on the other hand, MBU and MFP
own all Promotional Rights exclusively and on a worldwide basis, including, but not limited to,
the right to exercise and exploit the Promotional Rights in any and all media, now known or
hereafter invented, and for any and all purposes, products and services throughout and for all
countries and territories of the world. The City shall not use, sell, assign, commercialize or
otherwise exploit the Promotional Rights without the written permission of MBU or MFP, which
may be given or withheld in MBU's or MFP's absolute discretion. As between the City, on the
one hand, and MBU, MFP and MLS, on the other hand, all Proprietary Indicia are solely and
exclusively the property of MBU, MFP, MLS, or their respective assigns. As between the City, on
the one hand, and MBU, MFP, or MLS, on the other hand, the creation, use, compilation,
collection, arrangement, assembly, display, promotion, licensing or other promotion or
exploitation of Proprietary Indicia are rights exclusively belonging to MBU, MFP, MLS, or their
respective assigns, as the case may be. Notwithstanding anything to the contrary contained in this
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Agreement, the City shall be permitted to disclose or disseminate any documents or other
information it possesses, whether regarding Promotional Rights or otherwise, to the extent it is
required to do so under public records laws or other Applicable Law, including those set forth in
the Code.
14. Public Safetv and Securitv. MBU shall be responsible for all security expenses at
the Stadium and on the Stadium Property and beyond the Stadium Property, where applicable and
required as a result of MBU Events, and shall work in good faith with the City to utilize City police
officers when and if necessary for all MBU Events. MBU shall, at MBU's expense, provide all
necessary public safety personnel, including but not limited to law enforcement, fire, emergency
medical service, traffic management personnel as well as qualified security and crowd control
personnel to protect the public health, safety and welfare for all MBU Events. The required amount
of public safety and security shall be determined in conjunction with Governmental Authorities
and be consistent with standards for similar events and Comparable MLS Stadiums.
15. Utilities. The Stadium shall be furnished with domestic water, sufficient electrical
capacity to operate and manage the Stadium as contemplated herein (including, without limitation,
capacity for lighting and equipment for MBU Events taking place at night), sewage, field and
grounds irrigation and drainage systems with maximum outsource, and telephone service and
similar services, and MBU shall bear the monthly operating cost of all such Stadium utilities at all
times.
16. Operation and Maintenance Expenses: Capital Maintenance and Repairs. MBU
shall be responsible for all costs and expenses throughout the Term in connection with the use,
operation and management of the Stadium including, but not limited to, utilities, cleaning and
Routine Maintenance of the Stadium and the Public Infrastructure,9 except for the cleaning
expenses associated with any City Events. MBU shall maintain and operate the Stadium in a
manner consistent with Comparable MLS Stadiums and shall maintain the Stadium Property and
all improvements and buildings in good repair and in a clean, attractive, first-class condition. MFP
and MBU shall also maintain insurance in amounts and with providers acceptable to the City in
connection with MBU's activities at the Stadium, and shall be in amounts consistent with
Comparable MLS Stadiums. MBU shall solely fund all Capital Maintenance and Repairs. Capital
Maintenance and Repairs shall include the types of repairs set forth on Exhibit B-1.10 The City
shall have no maintenance obligation concerning the Stadium Property and no obligation to make
or fund any Capital Maintenance and Repairs or replacements, in, on, or to the Stadium Property.
MBU assumes the full and sole responsibility for the condition, operation, repair, replacement, and
maintenance of the Stadium Property, including all improvements, throughout the Term.
(a) Removal of Dangerous Condition. Promptly after receiving written notice
from the City or any other Person of any dangerous condition from time to time existing on the
Stadium Property, MBU shall, at MBU's sole cost and expense, do or cause to be done all things
necessary to remove such condition, including, but not limited to, taking appropriate measures to
prevent or repair any erosion, collapse or other unstable condition on the Stadium Property.
9 NTD: City to advise if maintenance expenses for Public Infrastructure shall be included as an MBU obligation.
10 NTD: City to advise if it wishes to obligate MBU and/or MFP to establish and maintain an account for capex funds.
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(b) No Citv Repair or Maintenance Obligations. Nothing contained in this
Agreement shall impose on the City the obligation to make any repairs or expend any monies for
the maintenance of the Stadium Property, or the renewal, replacement or repair of the
Improvements; provided, however that if MBU fails to do any of the foregoing in accordance with
the terms of this Agreement, then the City, upon reasonable prior written notice to MBU, may
elect, in its sole discretion, to perform or cause the same to be performed on MBU's behalf, and
all of the costs and expenses reasonably incurred by the City in connection with the same shall be
deemed to be additional Stadium Rent due from MBU to the City hereunder.
17. Changes and Alterations to Improvements by MBU. MBU shall have the right at
any time or from time to time during the Term of this Agreement, at its sole cost and expense, to
expand, rebuild, alter and/or reconstruct the Improvements; provided, however, that:
(a) The rebuilding, alteration or reconstruction does not constitute a Material
Change (as defined in the Construction Administration Agreement), complies with Applicable
Laws and the Charter Amendment approved pursuant to City referendum, does not violate any
other provisions of this Agreement or the Construction Administration Agreement, and shall be
conducted in the same manner as required by this Agreement and the Construction Administration
Agreement for the original Improvements, and in accordance with such conditions, including
completion date, are as reasonably required by the City; and
(b) MBU shall obtain all approvals, Permits and authorizations required under
Applicable Laws.
(c) Notwithstanding the foregoing, none of the following shall require the
City's review or approval:
(i) any nolmal and periodic maintenance, operation, and repair of the
Improvements;
(ii) any non-structural interior reconfigurations or non -material
alterations made to the Improvements;
(iii) any repair or reconstruction to any Improvement damaged by
casualty, which repair or reconstruction is completed in accordance with Section 29 below; or
(iv) any modifications, construction, replacements, or repair reasonably
anticipated by MBU to cost less than $[ (which number shall be adjusted annually
to account for changes in the CPI); or
(v) any modifications, construction, replacement, or repair of
Improvements consistent with the Stadium Project which are approved in writing by the City.
18. FF&E. MBU shall be responsible for such furniture, fixtures and equipment it
deems necessary for installation at the Stadium to operate MBU's operations and to otherwise
operate and manage the Stadium (collectively, the "FF&E"). Such FF&E shall include initial
purchase of Stadium scoreboard and scoreboard support structures, control room equipment, non -
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permanent concessions equipment, and concession stand build out (including permanent fixtures
such as hoods and sinks).
19. Citv Right to Perform MBU/MFP Covenants.
(a) Performance of MBU/MFP's Covenants to Pav Monev. MBU and MFP
covenant that if it shall at any time default in the payment of any Impositions pursuant to this
Agreement, or shall fail to make any other payment to any third party required to be paid
hereunder, and any such failure shall continue for thirty (30) days after written notice by the City
to MFP or MBU ("Notice of Non -Payment of Imposition"), then the City may, but shall not be
obligated to, and without further notice to or demand upon MBU or MFP and without waiving or
releasing MBU or MFP from any obligations of MFP or MBU set forth in this Agreement, pay
any such Imposition or make any other payment which MFP and/or MBU has improperly failed
to pay as set forth in the Notice of Non -Payment of Imposition. No such action shall be taken,
however, if MBU or MFP is duly contesting the payment of same as permitted by the provisions
hereof, including, but not necessarily limited to, contests pursuant to Section 22(d).
(b) The Citv's Ris4ht to Cure MBU or MFP's Default. Notwithstanding
anything herein to the contrary, if there shall be any default by MBU and/or MFP, beyond notice
and any applicable cure period, under this Agreement (including, but not limited to, any default
involving MBU or MFP's failure to keep the Improvements in good condition and repair, to make
any renewals or replacements or to remove any dangerous condition, all in accordance with any
applicable requirements set forth in this Agreement), then upon prior written notice to MBU or
MFP, the City may, but shall have no obligation to, cure any such default in addition to any and
all of the City's other remedies hereunder.
(c) Reimbursement of Citv. All sums advanced by the City pursuant to any
provisions of this Agreement, and all necessary and incidental costs, expenses and reasonable
attorneys' fees in connection with the performance of any acts described therein, together with
interest at the Default Rate from the date of the making of such advances to the date reimbursed
to the City by or behalf of MBU and/or MFP, shall be deemed additional Stadium Rent, and shall
be promptly paid by MBU and/or MFP, in the respective amounts so advanced, to the City. Such
reimbursement shall be made on demand, or, at the option of the City, may be added to any
Stadium Rent then due or becoming due under this Agreement, and MBU and MFP covenant to
pay the sum or sums with interest as provided above. In the event of nonpayment of such
reimbursement, the City shall have, in addition to any other right or remedy of the City, the same
rights and remedies as in the case of default by MBU or MFP in the payment of any installment of
Stadium Rent (subject to the applicable notice and cure period hereunder for non-payment of
percentage rent).
20. MBU Improvements.
(a) Discretionary Improvements. MBU shall have the right, from time to time,
in its sole discretion and at its own expense, to make alterations and improvements to the Stadium,
as shall be reasonably necessary or appropriate, in MBU's judgment, for MBU conduct of its
business without the need for prior review or approval by the City (collectively, "Discretionary
Improvements"); provided, however, that MBU shall obtain the prior written approval of the City,
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not to be unreasonably withheld, for any improvements that materially affect the structural
elements or components of the Stadium. Such alterations or improvements shall be performed in
a lien -free and good and workmanlike manner.
(b) MLS Reauired Improvements. MBU shall provide the City with written
notice of any alterations or improvements to the Stadium required to comply with the MLS Rules
and Regulations or MLS requirements and MBU shall be obligated to make any such alterations
and improvements at its expense as it deems reasonably necessary in such time frame as is required
to comply with the MLS Rules and Regulation or MLS requirements.
21. Return of Stadium.
(a) The Stadium Property shall revert to the City upon the expiration or
termination of this Agreement, and unless the City desires to continue to use the Stadium in its
then -current form, MBU shall be obligated to deliver the Stadium Property to the City free and
clear of the Stadium, with its demolition and removal at MBU's expense.
(b) MBU shall have the right upon termination of this Agreement, within sixty
(60) days thereafter, to remove from the premises all movable property which is not permanently
affixed to the structure and which is not owned by the City, including without limitation all
concession equipment and broadcasting equipment, whether or not such items are deemed movable
and whether or not they are permanently affixed to the structure, provided that MBU repair any
damage caused by removal of such items to the reasonable satisfaction of the City.
(c) Should the City wish to retain the Stadium in its then -current form, except
for the main Stadium scoreboard, all FF&E paid for by MBU shall remain the property of MBU
and may be removed by MBU at the conclusion of the Term. Any damage caused due to the
removal of such FF&E shall be at the sole cost and expense of MBU.
(d) All Trade Fixtures shall be owned by MBU and MBU shall have the right
to remove any such Trade Fixtures at the end of the Term, provided MBU has repaired or restored
the area from which such Trade Fixture has been removed.
22. Taxes.
(a) MBU shall pay or cause to be paid all Impositions, before any fine, penalty
or interest may be added thereto, including, but not limited to, any real estate tax, sales tax, ad
valorem tax or similar Impositions which at any time during the Term of this Agreement are due
and owing or have been, or which may become, a lien on the Stadium or Stadium Property or the
Improvements or any part thereof owned by MBU (and specifically excluding any Public
Infrastructure); provided, however, that:
(i) If any Imposition (for which MBU is liable hereunder) may by law
be paid in installments (whether or not interest shall accrue on the unpaid balance of such
Imposition), at the option of MBU, MBU may pay the same in installments, including any accrued
interest on the unpaid balance of such Imposition, provided that MBU shall pay those installments
which are to become due and payable after the expiration of the Term of this Agreement, but which
relate to a fiscal period fully included in the Term of this Agreement.
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(ii) If any Imposition for which MBU is liable hereunder relating to a
fiscal period, a part of which period is included within the Term of this Agreement and a part of
which is included in a period of time after the expiration or termination of the Term, such
Imposition shall be adjusted between the City and MBU as of the expiration or termination of the
Term so that MBU shall pay only that portion of such Imposition that is applicable to the period
of time prior to expiration or termination of the Term, and the City shall pay the remainder thereof
if it is otherwise obligated to do so.
(iii) If any Imposition relates to the period prior to the Effective Date or
after the expiration or earlier termination of the Term, it shall be the sole responsibility and
obligation of the City.
(iv) MBU shall not be responsible for, and the City shall not impose any,
Targeted Taxes on MBU or MFP.
(v) Nothing herein shall be interpreted to mean that there are any
Impositions applicable to the Stadium Property or any portions of the Improvements owned by the
City.
(b) Ad Valorem Taxes. MBU shall remain solely responsible for the full
amount of any and all real property ad valorem taxes, if any, which may be assessed or imposed
upon the Stadium, including the FF&E and Trade Fixtures.
(c) Taxes Reaardina MBU's Operations. MBU shall be responsible for the full
amount of any and all taxes, assessments, licenses and charges on its operations.
(d) Contesting Impositions. MBU shall have the right to contest the amount or
validity, in whole or in part, of any Imposition for which MBU is or is claimed to be liable, by
appropriate proceedings diligently conducted in good faith but only after payment of such
Imposition (provided such payment is required by Applicable Law), unless such payment or
payment thereof under protest would operate as a bar to such contest or interfere materially with
the prosecution thereof, in which event, notwithstanding the provisions of Section 22(a) herein,
MBU may postpone or defer payment of such Imposition if.
(i) Neither the Stadium Property, the Stadium, the Improvements nor
any part thereof would by reason of such postponement or deferment be in imminent danger of
being forfeited or lost; and
(ii) Upon the termination of any such proceedings, MBU shall pay the
amount of such Imposition or part thereof, if any, as finally determined in such proceedings,
together with any required costs, fees, including attorneys' fees, interest, penalties and any other
liability in connection therewith that are imposed upon MBU in accordance with Applicable Laws.
23. Operating Permits. MBU shall secure such permits, variances, and licenses as may
be necessary or desirable to operate the Stadium as is contemplated by this Agreement. To the
extent permitted by law, the City will assist and cooperate with MBU in securing permits or
licenses for the operation of the Stadium and shall not unreasonably withhold, delay or condition
its approval in connection therewith.
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24. Disaster Preparedness, Disaster Response, and Shelter. The Stadium Property may
be used, in areas agreed upon by the Parties, for emergency response personnel and equipment,
debris and debris -removal equipment for natural disaster preparations, response, and potential
shelter. Such uses by the City shall be reasonably limited in scope and duration, and the City shall
undertake reasonable measures to mitigate damage or negative impacts to the Stadium Property in
connection with such use. The City shall provide notice regarding any such use to MBU prior to
such entry to the extent practicable, shall provide regular notices to MBU during the period of such
use, and shall permit reasonable access to the Stadium Property by MBU and its agents at all times
during such use. In the event the City uses the Stadium Property pursuant to this Section 24, the
City agrees to completely remove all disaster/hurricane-related debris and materials from the
Stadium Property and take such other remedial action as may be necessary within a reasonable
period of time so as to allow MBU full beneficial use of the Stadium Property. The City shall be
responsible for all damage, clean-up, maintenance, repairs and costs and expenses in connection
with the use of the Stadium Property for disaster purposes, and the City shall promptly clean up,
and fully repair and restore the Stadium Property, all at no cost or liability to the MBU.
25. Insurance.11 [Throughout the Term of this Agreement, including any Options,
MBU shall provide and maintain, at its expense, the policies of insurance set forth in Exhibit D,
which shall protect MBU and the City from any claim, damage, liability, loss or expense to Persons
or property (hereinafter, "Claims") caused by, resulting from, arising out of or in connection with
the duties and obligations of MBU pursuant to this Agreement; [provided that the policies of
insurance shall be sufficient to cover the Stadium Rent]. The terms and provisions governing the
insurance required pursuant to this Agreement are contained in Exhibit D hereto, which is hereby
incorporated herein by reference.
All such insurance required above shall be primary and non-contributory, written by
insurance companies qualified (on an admitted or non -admitted basis) to do business in the State
of Florida with A.M. Best ratings of A- or better. The City shall be included as an additional
insured party under the General Liability, Liquor Liability, Automobile Liability and Umbrella
Liability policies to be maintained by MBU pursuant to Exhibit D. MBU shall provide at least
thirty (30) days prior written notice to the City if any coverage required to be maintained by MBU
pursuant to this Agreement is going to be materially changed, reduced or cancelled. MBU shall
bear all costs of all deductibles under policies maintained by MBU. Upon request, MBU shall
furnish to the City certificates of insurance for all of the above policies. MBU hereby agrees to
furnish renewal certificates throughout the Term of this Agreement. Any one or more of the types
of insurance coverages required under this Section 25 may be maintained through a master policy
insuring other entities, provided that such blanket or master policy and the coverage effected
thereby comply with all applicable requirements of this Agreement.
It is hereby agreed and understood that the insurance requirements set forth above shall not
be construed as in any manner waiving, restricting or limiting the liability of MBU with respect to
obligations imposed under this Agreement, including, but not limited to, obligations imposed
under the provisions of Section 26(a) below.]
" NTD: To conform to Article 10 of the Master Lease once finalized.
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26. Indemnification.
(a) MBU and MFP Indemnification Obligations. MBU and MFP shall defend,
indemnify and hold harmless the City and its officers, employees, agents and instrumentalities (the
"City Indemnified Parties") from any and all liability, losses or damages, including attorneys'
fees and costs of defense, including, without limitation, any of same resulting from a challenge to
this Agreement or this transaction, which the City or any other City Indemnified Parties may incur
as a result of any claims, demands, suits, causes of actions or proceedings of any kind or nature
whatsoever, whether foreseen or unforeseen, arising out of, relating to or resulting from, the
performance or non-performance by MBU or MFP (and/or its employees, agents, servants,
partners, principals or subcontractors) of any obligations of MBU and MFP under this Agreement,
other than any liability, loss or damage caused by the gross negligence or willful breach of this
Agreement by the City or the City Indemnified Parties (collectively, an "Indemnity Claim").
MBU and MFP shall pay all Indemnity Claims in connection therewith and shall investigate and
defend all Indemnity Claims in the name of City Indemnified Parties, where applicable, including
any and all appellate proceedings, and shall pay all reasonable costs, judgments, and attorneys'
fees which may issue thereon. MBU and MFP expressly understands and agrees that any insurance
protection required by this Agreement or otherwise provided by MBU or MFP, shall in no way
limit the responsibility to indemnify, keep and save harmless and defend the City Indemnified
Parties. MBU and MFP are jointly and severally responsible for indemnifying the City in
accordance with the terms of this Section 26.
(b) Dutv to Defend. MBU shall control any litigation or potential litigation
involving the defense of any Indemnity Claim, including the selection by MBU of a single counsel
to represent MBU and the City Indemnified Parties. Notwithstanding the foregoing, if there is a
conflict between the positions of MBU and the City Indemnified Parties in conducting the defense
of such action, or if there are legal defenses available to such City Indemnified Party different from
or in addition to those available to MBU, or if MBU or MFP fail to comply with its obligations
under Section 26(a) above, then the City Indemnified Party shall be entitled to select counsel,
reasonably acceptable to MBU, to conduct the defense of the Indemnity Claim and MBU shall pay
for the reasonable legal fees and related out-of-pocket expenses of the City Indemnified Parties;
provided, that MBU shall not be required to pay the legal fees for more than one counsel for all
City Indemnified Parties in connection with any Indemnity Claim. The City Indemnified Parties
shall fully cooperate with MBU in the defense of the Indemnity Claim. MBU shall have the right
to compromise or settle any Indemnity Claim without the consent of the City Indemnified Parties
if the compromise or settlement of the Indemnity Claim does not require the City Indemnified
Parties to admit any liability or incur any financial liability, each with respect to the Indemnity
Claim.
(c) Limitation of Liabilitv. The City shall not be liable for any damage or injury
which may be sustained by any party or person, or to any personal property, located on the Stadium
Property, other than the damage or injury caused solely by the gross negligence or willful breach
of this Agreement by the City or any City Indemnified Parties, and all of which is subject to the
conditions and limitations of Florida Statutes, Section 768.28 and any other Applicable Laws;
provided, however, that in no event shall the City have any liability for a breach of Environmental
Laws unless such violation shall be due to the City's gross negligence or willful breach of this
Agreement after MBU's delivery of the NFA to City and completion of the Environmental Work.
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Nothing herein shall be construed as a waiver or limitation of the conditions and limitations of
such statute.
(d) Waiver of Subrogation. MBU waives all rights to recover against the City,
its employees, agents, officers, contractors or instrumentalities, for any claims, losses or damages
arising from any cause covered by property insurance required to be carried by MBU hereunder.
MBU shall cause its insurer(s) to issue customary waiver of subrogation rights endorsements to all
such policies of insurance carried by MBU with respect to the Improvements. The City waives all
rights to recover against MBU, its employees, agents, officers, partners, members, principals or
contractors, for any claims, losses or damages arising from any cause covered by property
insurance (irrespective of whether the insurance is carried by MBU or the City). The City shall
cause its insurer(s) to issue customary waiver of subrogation rights endorsements in favor of MBU
to all such policies of insurance carried by the City in connection with the Stadium Property. Any
self-insurance program of the City shall be deemed to include a full waiver of subrogation
consistent with this Section 26.
(e) Survival. The provisions of this Section 26 shall survive any termination or
expiration of this Agreement.
27. Time is of the Essence. In all matters concerning or affecting this Agreement, time
is of the essence.
28. Quiet Use and Eniovment. MBU, upon paying all Stadium Rent, and other monies
herein provided for and performing in accordance with the terms, agreements, and provisions of
this Agreement, shall peaceably and quietly have, hold and enjoy the Stadium Property during the
Term of this Agreement without interruption, disturbance, hindrance or molestation by the City or
by anyone claiming by, through or under the City, except to the extent that certain rights to use the
Stadium Property, or any portion of it, may be reserved to the City for City Events in accordance
with this Agreement.
29. Destruction of Stadium. If all or any Significant Portion of the Stadium is damaged
or destroyed by fire or other casualty, MBU shall repair and rebuild the Stadium (using proceeds
from the property insurance maintained by MBU on the Stadium and its structural components)
with thorough diligence to its condition immediately before such loss or the condition required by
law, whichever is greater, with such repair and rebuilding to be completed as soon as is possible
giving due attention to the MLS season after such fire or other casualty occurs and in any event
not later than two years after such fire or other casualty occurs. For the purposes of this Section
29, Section 30 (below) and the Non -Relocation Agreement, "Significant Portion" of the Stadium
shall mean the loss of the use of a portion of Stadium that materially interferes with the intended
use and function of the Stadium to exhibit, promote, schedule and play or conduct Home Matches.
If there is substantial interference with the operation of MBU's activities or use of the Stadium,
then MBU will be temporarily authorized to use other facilities and to schedule MBU Events at
other facilities. It is specifically understood by and between the Parties that during the period of
such interference, MBU shall have the right to schedule MBU Events at other facilities and MBU's
obligations pursuant to this Agreement shall be abated during such interruption.
30. Condemnation.
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(a) If all or a Significant Portion of the Stadium or the Stadium Property is taken
by any State of Florida or United States public authority pursuant to the power of eminent domain,
then this Agreement shall terminate as of the date possession is taken by the public authority.
(b) If part of the Stadium or a Significant Portion of the Stadium Property is
taken by any State of Florida or United States public authority pursuant to the power of eminent
domain and in the reasonable opinion of either the City or MBU it is not economically feasible to
continue this Agreement, such Party may terminate this Agreement under the following terms and
conditions:
(i) Such termination by such Party shall be made by written notice to
the other Parties given not later than ninety (90) days after the date possession is taken by the
public authority.
(ii) Termination shall be effective thirty (30) days after such notice is
given, at which time MBU will return the Stadium Property to the City pursuant to Section 21.
(c) If neither the City nor MBU elect to terminate this Agreement, MBU shall
make such repairs or alterations, if any, as are required to render the remainder of the premises
useable for its intended purposes.
(d) MBU may assert a claim against the condemning authority to disruption or
relocation of MBU's business or for MBU's property located on the premises but not for the
Stadium or Stadium Property improvements.
31. Recording. At any time on or after the Execution Date, a Memorandum of this
Agreement in the form set forth as Exhibit E, 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.
32. Notices.
(a) Addresses. All notices, demands or requests by the City to MBU or MFP
shall be deemed to have been properly served or given:
If addressed to: MBU
II
Miami Freedom Park, LLC
to the attention of Pablo A. Alvarez
800 S. Douglas Road, 12th Floor
Coral Gables, Florida 33134
or to such other address and to the attention of such other party as MBU or MFP may, from time
to time, designate by written notice to the City. In order for notices, demands or requests from the
City to MBU or MFP to be effective, the City shall, simultaneous with each notice, demand or
request submitted to MBU or MFP, send a copy of each such notice, demand or request to the
following party:
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Holland & Knight
701 Brickell Avenue, Suite 3000
Miami, FL 33131
Attention: Richard A. Perez, Jr. Esq.
If MBU or MFP, at any time during the Term hereof, changes its office address as herein stated,
MBU or MFP will promptly give notice of the same in writing to the City.
All notices, demands or requests by MBU or MFP 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, 9th Floor
Miami, FL 33130
With a copy to: O'Melveny & Myers LLP
Times Square Tower
7 Times Square
New York, NY 10036
Attention: Irwin P. Raij
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 and MFP. 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 and MFP.
(b) Method of Transmitting 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, if received by 4:00 p.m. on a Business Day; otherwise, on
the next Business Day, (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.
33. Assignment. Neither MFP nor MBU may assign its respective rights or obligations
under this Agreement (whether via merger, stock or asset sale, recapitalization, or otherwise)
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without the prior, written consent of the City. However, the City acknowledges and agrees that
MFP and/or MBU may assign its rights and obligations under this Agreement 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 provides
evidence of such that is deemed satisfactory to the City in its reasonable discretion, and (iii) such
successor -in -interest or new owner has assumed the obligations of MFP and/or MBU, as
applicable, under this Agreement and the Non -Relocation Agreement. MFP and/or MBU shall not
assign or otherwise transfer any interest in this Agreement (each, a "Transfer") without the prior
written approval of the City, which approval shall be in the City's sole and absolute discretion.
MBU and/or MFP shall provide the City with information reasonably requested by the City in
order to determine whether or not to grant approval of the assignment as provided herein. MBU,
MFP and Guarantor shall remain liable to the City for the prompt and continuing payment of all
Stadium Rent payable under this Agreement following any Transfer. The joint and several liability
of MBU, MFP, Guarantor, and any immediate and remote successor in interest of MBU and/or
MFP (by assignment or otherwise), and the due performance of the obligations of this Agreement
on MBU and/or MFP's part to be performed or observed, shall not in any way be discharged,
released, or impaired by any agreement that modifies any of the rights or obligations of the Parties
under this Agreement or any waiver of, or failure to enforce, any obligation in this Agreement. 12
34. Certificates.
(a) MBU Certificates. MBU agrees, at any time and from time to time, upon
not less than thirty (30) days prior written notice by the City, but not more often than once each
calendar quarter, to execute, acknowledge and deliver to the City a statement in writing (i) setting
forth the Stadium Rent payments, and other monies then payable under this Agreement, if then
known; (ii) certifying that this Agreement is unmodified and in full force and effect (or if there
have been modifications, that the Agreement is in full force and effect as modified and stating the
modification); (iii) certifying the dates to which the Stadium Rent payments and other monies have
been paid; and (iv) stating (to the best of MBU's knowledge) whether or not the City is in default
in keeping, observing or performing any of the terms of this Agreement, and, if in default,
specifying each such default (limited to those defaults of which MBU has knowledge).
(b) The Citv Certificates. The City agrees, at any time and from time to time,
upon not less than thirty (30) days prior written notice by MBU or by a lender, but not more often
than once each calendar quarter, to furnish a statement in writing, (i) setting forth, among other
things, the Stadium Rents, payments and other monies then payable under the Agreement, if then
known; (ii) certifying that this Agreement is unmodified and in full force and effect (or if there
shall have been modifications that the Agreement is in full force and effect as modified and stating
the modifications); (iii) certifying the dates to which the Stadium Rent payments and other monies
have been paid; (iv) stating whether or not, to the best of the City's knowledge, MBU and/or MFP
is in default in keeping, observing and performing any of the terms of this Agreement, and, if MBU
and/or MFP shall be in default, specifying each such default of which the City may have
knowledge; and (v) such other matters as MBU may reasonably request.
12 NTD: To discuss inclusion of Sections 18.2-18.7 of the Master Lease in the Stadium Lease.
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35. Binding Effect. This Agreement shall inure to the benefit of and remain fully
binding upon the Parties hereto and their respective successors and permitted assigns.
36. Events of Default.
(a) Events of Default of MBU. Each of the following shall be an Event of
Default of MBU under this Agreement:
(i) MBU fails to make any payment of Stadium Rent or other 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"); 13
(ii) 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;
(iii) 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;
(iv) MLS terminates, rescinds or otherwise does not permit MBU to
continue to have and maintain the rights to an MLS team in South Florida;
(v) MBU or any Guarantor is dissolved without the City having
permitted a successor to the rights under this Agreement;
(vi) any representation made hereunder shall prove to have been
incorrect in any material respect when made;
(vii) a default occurs under any other Lease Agreement, including, but
not limited to, the Non -Relocation Agreement, the Master Lease, and the Construction
Administration Agreement;
(viii) Guarantor or any guarantor defaults under any guaranty of this
Agreement;
(ix) MFP or MBU or any guarantor or surety for MBU's or MFP'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 MFP or any guarantor or surety;
is NTD: City to consider language limiting MBU's right to notice where there are repeated defaults of the same type.
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(x) 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
(xi) 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 (ii) through (xi) 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."
(b) Events of Default of the Citv. Each of the following shall be an Event of
Default of the City under this Agreement: 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.
37. Remedies and Termination.
(a) Upon the occurrence of any Event of Default set forth in Section 36, or any
other failure by a Party hereto (the "Defaulting Party" which, if the Defaulting Party is either
MFP or MBU, shall automatically include the other such Party) to perform any of its obligations
under this Agreement, then the City, if the Defaulting Party is MBU or MFP, or MBU, if the
Defaulting Party is the City (in either event, 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 37(b) below.
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(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
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) Termination by Non -Defaulting Partv. 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 37(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.
(d) Cumulative Rights. The remedies heretofore described in this Section 37
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:
(i) Any rights and remedies set forth in the Non -Relocation Agreement,
the Construction Administration Agreement, and the other Lease Agreements;
(ii) the City's right to terminate the Master Lease and assign MFP's
rights thereunder to any Person, and to collect any fees generated therefrom;
(iii) 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;
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(iv) An action for specific performance of non -monetary covenants and
agreements on the part of the Defaulting Party; and/or
(v) 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.
(e) Surrender of Stadium Property. Upon any expiration or termination of this
Agreement in accordance with its terms, including, but not limited to Section 37 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 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 Authority), but
only for that period of time MBU fails to quit and peacefully surrender the Stadium Property to
the City.
(f) Rights of the Citv after Termination. Subject to Section 37(e), 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 this
Agreement, 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.
(g) No Waiver by the Citv. No failure by the City to insist upon the strict
performance of any of the terms of this Agreement or to exercise any right or remedy consequent
upon a breach thereof, and no acceptance by the City of full or partial rent during the continuance
of any such breach, shall constitute a waiver of any such breach or of any of the terms of this
Agreement. None of the terms of this Agreement to be kept, observed or performed by MBU, and
no breach thereof, shall be waived, altered or modified except by a written instrument executed by
the City. No waiver of any breach shall affect or alter this Agreement, but each of the terms of this
Agreement shall continue in full force and effect with respect to any other then existing or
subsequent breach thereof. No waiver of any default of MBU hereunder shall be implied from any
omission by the City to MBU any action on account of such default, and no express waiver shall
affect any default other than the default specified in the express waiver and then only for the time
and to the extent therein stated. One or more waivers by the City shall not be construed as a waiver
of a subsequent breach of the same covenant, term or conditions.
(h) 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 36(b) shall have the following rights
and remedies which are cumulative:
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(i) 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 26(c) above), costs and expenses arising from the City's committing an Event of
Default hereunder and to recover all such damages, costs and expenses.
(ii) 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.
(iii) 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.
38. Dispute 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.
39. 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.
40. 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.
41. 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. 14
42. Costs and Attornevs' Fees. Each of the Parties hereto shall bear its own costs and
attorneys' fees in connection with the execution of this Agreement, provided, however, in the event
of any foreclosure or other proceeding pursuant to any lien against the Stadium Property or MBU's
or MFP's interest therein, the City shall be entitled to recover from MBU and MFP the City's costs
and attorneys' fees reasonably incurred in the protection of the City's interests hereunder, whether
or not the City is made a party to such proceeding. Notwithstanding the foregoing, nothing
14 NTD: City to confirm.
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contained herein shall in any way limit any other provision of this Agreement entitling the City to
recover attorneys' fees and costs from MBU nor the City's ability to collect and recover attorneys'
fees and costs in any action or other proceeding relating to the City's enforcement or termination
of this Agreement. The terms of this Section 42 shall survive the termination of this Agreement.
43. 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.
44. 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; provided, however, in no event shall the terms of this Section 44 release, limit or
excuse Guarantor from its obligations under the Guaranty or MBU under any MLS Rules and
Regulations. Non -Party Affiliates are expressly intended as third party beneficiaries of this
provision of this Agreement. The provisions of this Section 44 shall survive the termination or
expiration of this Agreement.
45. 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.
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46. 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.
47. Status of Parties. The Parties hereto shall be deemed and construed as independent
contractors for all purposes and not as the agent, employee, representative or servant of the other.
48. No Waiver or Breach. No failure of either Party to insist upon exact compliance
with the terms and, provisions herein contained shall be deemed or construed as a waiver of any
subsequent breach of this Agreement.
49. Severabilitv. If any provisions of this Agreement shall be declared invalid or
unenforceable, the remainder of the Agreement shall continue in full force and effect unless so
construing the Agreement would produce an inequitable result.
50. Captions. The 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.
51. Relationship of Parties. This Agreement does not create the relationship of principal
and agent or of mortgagee and mortgagor or of partnership or of j oint venture or of any association
between the Parties, the sole relationship between the City and MFP and MBU being that of
licensor and licensee.
52. Governing Law, Venue and Jurisdiction. 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 the courts located in Miami -Dade County, Florida and the Parties irrevocably waive,
to the fullest extent permitted by law, any objection which they may now or hereafter have to the
venue of any such proceeding which is brought in such a court.
53. Waiver of Jury Trial. The Parties hereby expressly agree that in the event of
litigation regarding this Agreement, any and all rights to jury trial are waived.
54. Multiple Countemarts. This Agreement may be simultaneously executed in several
counterparts, each of which shall be original and all of which shall constitute one and the same
instrument.
55. Entire Asreement. This Agreement and its exhibits shall constitute the entire
agreement between the Parties hereto with respect to the subject matter herein contained. There
are no agreements or understandings between the Parties hereto, whether oral or written, regarding
the subject matter hereof, which have not been embodied herein or incorporated herein by
reference.
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56. Further Assurances and Corrective Instruments. The Parties each agree that they
will, from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged
and delivered, such supplements and amendments hereto and such further instruments as may be
reasonably required for carrying out the intentions of the Parties or facilitating the performance of
this Agreement provided that the rights of the Parties in connection with this Agreement are not
impaired thereby.
57. MLS Subordination. Notwithstanding any other provision of this Agreement, this
Agreement, and any rights or exclusivities granted by MBU hereunder 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 MLS.
58. Force Maieure. No Party shall be deemed in breach of this Agreement in the event
of non-performance due to a Force Majeure. The Parties' respective performance under this
Agreement will be suspended during such Force Majeure, each Party shall resume performance of
this Agreement upon the conclusion of such Force Majeure, and the Parties shall confer in good
faith to determine if any remedial action is necessary as a result of such Force Majeure. In response
to and during any delay caused by a Force Majeure, the Parties shall at all times act diligently and
in good faith to bring about the termination or removal of the Force Majeure as promptly as
reasonably possible and any party seeking an excuse of performance due to such Force Majeure
shall work diligently and in good faith to reduce or eliminate any damage, cost or delay caused by
such Force Majeure.
59. No Personal Liabilitv. Nothing herein shall be construed as creating any individual
or personal liability on the part of any of the City's elected or appointed officials, officers, boards,
commissions, employees, representatives, consultants, servants, agents, attorneys and volunteers
or, with the exception of the Guaranty, on the part of any of the members, executives, officers, or
employees of MFP or MBU.
60. Equal Opportunitv. 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. Further, should MBU introduce or
have existing membership rules for patrons at the Stadium Property, MBU will comply with the
non-discrimination provisions incorporated within § 18-188, § 18-189, § 18-190, and § 18-191 of the
Code.
61. Living Waae.
(a) Definitions. For purposes of this Agreement, the following additional
definitions apply and shall be incorporated as part of the Definitions included in Section 2 above:
(i) "Covered Employer" means any of the following Persons: (a)
MBU or (b) MFP or (c) a sublicensee; provided, however, that the term "Covered Employer" shall
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not include a Person that has annual consolidated gross revenues that are less than the Small
Business Cap.
(ii) "Living Wage" means compensation to a Site Employee of no less
than $15.00 per hour without health benefits; or a wage of no less than $13.19 an hour with health
benefits.
(iii) "Site Affiliates" means, collectively, all Affiliates of MBU that
lease, occupy, operate or perform work at the Stadium Property and that have one or more direct
Site Employees.
(iv) "Site Employee" means, with respect to any Covered Employer,
any natural person who works at the Stadium Property and who is employed by, or contracted
directly to work for, such Covered Employer, including all employees and independent contractors
and persons made available to work for or on behalf of a Covered Employer through the services
of a temporary services, staffing or employment agency or similar entity, that are performing work
at the Stadium Property. The term "Site Employee" shall not include any natural person who (i)
works on average less than thirty (30) hours in any consecutive seven (7) day period for a Covered
Employer at the Stadium Property, (ii) receives compensation predominately through tips or
commissions, or (iii) receives compensation through wages determined pursuant to a collective
bargaining or labor agreement.
(v) "Small Business Cap" means Three Million and No/100 Dollars
($3,000,000.00); provided that, beginning on January 1, 2023, and each year thereafter, the Small
Business Cap shall be adjusted based on increases to the CPI.
(b) Living Wale.
(i) If, and for so long as, MBU is a Covered Employer, MBU shall pay
each of its Site Employees no less than a Living Wage. MBU shall cause each of its Site Affiliates
that is a Covered Employer to pay their respective Site Employees no less than a Living Wage.
(ii) MBU shall establish a policy in the Stadium Property providing for
its sublicensees to pay a Living Wage to its Site Employees based on a sliding scale implemented
over four (4) years from the date of occupancy of such sublicensee on the Stadium Property,
commencing with a Living Wage at $11.00 per hour.
(iii) MBU shall provide incentives, which shall be negotiated on a case-
by-case basis, to sublicensees not otherwise meeting the Small Business Cap to encourage them to
provide a Living Wage to their employees.
(c) Covered Emtnlovee. For a Covered Employer to comply with the
requirement to pay a Living Wage by choosing to pay the lower wage scale available when a
Covered Employer also provides a standard health benefit plan, such health benefit plan shall
consist of a payment of at least $1.81 per hour toward the provision of health benefits for Site
Employees and their dependents. If the health benefit plan of the Covered Employer requires an
initial period of employment for a new Site Employee to be eligible for health benefits, a Covered
Employer may qualify to pay the $13.19 per hour wage scale for a term not to exceed the new Site
41
OMM US:77096356.10
Employee's eligibility period, provided the new Site Employee will be paid health benefits upon
completion of the eligibility period, which period shall not exceed 90 days.
62. General Representations and Warranties.
(a) MFP hereby makes the following representations and warranties:
(i) Organization. MFP 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.
(ii) Authorization/Consents. This Agreement has been duly authorized
by all necessary action on the part of MFP and does not require notice to or the consent or approval
of any trustee or holder of any indebtedness or any other Person.
(iii) Execution. This Agreement, upon the execution and delivery hereof,
will constitute, a legal, valid and binding obligation of MFP, 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.
(iv) No Violation. Neither the execution, delivery or performance of this
Agreement by MFP, nor the consummation by MFP of the transactions contemplated hereby, nor
compliance by MFP 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 MFP, any
applicable law binding on MFP or any indenture, mortgage, contract, lease or other instrument to
which MFP is a party or by which it or any of its property is bound.
(v) Litis4ation. There is no action, suit, investigation or proceeding
pending or, to its knowledge, threatened against MFP before any court, arbitrator or administrative
or Governmental Authority and which, if decided adversely to MFP's interest, would have an
adverse effect upon the ability of MFP to perform its obligations under this Agreement.
(vi) Neither MFP, any Affiliate of MFP, any Person having an equity
interest in MFP or an Affiliate of MFP, nor, to MFP's knowledge, any of MFP'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.
(vii) 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
42
OMM US:77096356.10
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)).
(viii) Should any of the representations and warranties herein prove to be
incorrect at any time, it shall be MFP's obligation to cure those warranties and representations,
which are set forth herein forthwith at MFP's expense.
(ix) MFP 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 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 MFP with respect thereto. MFP assumes the sole
responsibility for the condition and demolition of the present improvements and other structures
located on the Parent Tract and/or Stadium Property in order that MFP may construct, operate,
maintain and manage the Improvements upon the Stadium 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. MFP 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 MFP's purposes; (ii)
the City makes and has made no warranty, express or implied, with regard to the accuracy of any
information furnished to MFP, and the City shall not be bound by any statement of any broker,
employee, agent or other representative of the City; (iii) MFP 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 MFP deemed appropriate and, on the basis of its
inspection, MFP 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 MFP; (iv) MFP has determined that the
condition of all portions of the Parent Tract and/or Stadium Property is satisfactory to MFP; 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 MFP. THERE
ARE NO EXPRESS OR IMPLIED WARRANTIES GIVEN TO MFP 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.
MFP ASSUMES RESPONSIBILITY AND ALL RISKS RELATING TO LATENT OR OTHER
DEFECTS.
(b) MBU hereby makes the following representations and warranties:
43
OMM US:77096356.10
(i) 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.
(ii) 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.
(iii) 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.
(iv) 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.
(v) Litigation. 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.
(vi) 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.
(vii) 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.
(viii) 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)).
OMM US:77096356.10
(ix) Should any of the representations and warranties herein prove to be
incorrect at any time, it shall be MBU's obligation to cure those warranties and representations,
which are set forth herein forthwith at MBU's expense.
(x) 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 Parent Tract and/or Stadium Property in order that MBU may construct,
operate, maintain and manage the Improvements upon the Stadium 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 LEASE 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.
(c) The City hereby makes the following representations and warranties:
(i) Ors4anization. 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.
45
OMM US:77096356.10
(ii) 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.
(iii) 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.
(iv) 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.
(v) 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.
63. Third Partv Beneficiaries. 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.
[SIGNATURES FOLLOW ON NEXT PAGE]
46
OMM US:77096356.10
IN WITNESS WHEREOF, the City has caused this Stadium Operating 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 Stadium Operating Agreement]
Signed in the presence of:
Print Name:
Print Name:
Signed in the presence of:
Print Name:
Print Name:
MFP:
MIAMI FREEDOM PARK, LLC,
a Delaware limited liability company
By:
Name:
Title:
a[
By:
Name:
Title:
[Signature Page to Stadium Operating Agreement]
1,
EXHIBIT A
STADIUM PROPERTY
[Exhibit A to Stadium Operating Agreement]
EXHIBIT B-1
CAPITAL MAINTENANCE AND REPAIRS
(a) HVAC Capital: Including but not limited to major repair or replacement of all HVAC
systems and control components including but not limited to central chillers, cooling
towers, heat exchangers, DDC automation, energy management systems, package units, air
handlers, power induction units, electric or gas heating devices and related equipment.
(b) Plumbing Capital: Including but not limited to major repair or replacement of all water,
sewer and gas lines, pumps, pump motors, gearboxes, grease traps, hot water tanks, hot
water heaters, boilers either gas or electric, internal coils, manifolds, etc.
(c) Electrical Capital: Including but not limited to major repair or replacement of main power
feeds, main switchgear, buss bars, automatic transfer switches, emergency generators, ups
systems, field/sports lighting and its components, general power distribution, energy
management devises, program and lighting hardware and software, etc.
(d) Fire Protection Capital: Including but not limited to major repair or replacement of fire
pumps and motors, wet and dry sprinkler distribution, piping, ansul systems and main
annunciator and related alarm devices, etc.
(e) Concession Capital: Including but not limited to major repair or replacement of structurally
mounted concessions fixtures and equipment provided by the City (e.g., exhaust vents,
grease traps, ansul systems, electrical hook-ups, counters, countertops, roll -down doors,
plumbing and sinks, fixtures and lighting).
(f) Concrete Capital: Repair and/or replace cracked and/or disintegrated concrete surfaces as
needed including but not limited to concourses, pre -cast, cast in place, spalling, sidewalks,
curbing, ADA ramps, traffic coatings, stair risers, stucco walls, eifs walls & ceilings etc.
(g) Seating Capital: Replace in part or entire sections of seats and seat standards, filigrees, cup
holders and all other integral components of permanently affixed fan seating.
(h) Painting Capital: Includes all exterior protective paints and coatings including but not
limited to paint, stains, waterproof and anti -slip coatings as specified. Full scale painting
of all structural steel, fencing, hand rails, gates, metal fascia, etc. Seal coating and
application of anti -slip coatings, traffic coatings and stains.
(i) Field/Sports Lighting Capital: Field/ lighting repair or replacement and all related
components including but not limited to lamps, fixtures, lenses, ballasts, relays, etc., all
considered capital and replaced or repaired per manufacturer's recommendation or as
necessary to meet MLS minimum standards.
(j) Fencing/Gates/Netting Capital: Including but not limited to major repair or replacement of
security fencing including steel, aluminum, chain link, wood, etc. within the park and
[Exhibit B-1 to Stadium Operating Agreement]
parking lots. Included in this would be field wall and padding, home plate netting and
support structures.
(k) Parking Lot Capital: Including but not limited to major repair or complete resurface of all
asphalt parking surfaces, walkways and structures, weather shelters, curbing, car stops,
light poles, lamps and bases, general lighting and power, distribution lines, wiring, panels,
transformer etc. Lot stripping, patching, crack -fill and sealcoating.
(1) LED Matrix Capital: Including but not limited to major repair or replacement of all LED
boards, including but not limited to main scoreboard, marquee, ribbon boards, speed of
pitch, out of town scoreboard and strike out boards, in stadium TV monitors, etc. Includes
LED board hardware, wiring, software and other components integral for system operation.
Any software or component upgrades from the base package provided by the manufacturer
are the sole responsibility of MBU.
(m) Public Announcement Systems Capital: Including but not limited to major repairs or
replacement of general sound systems including public announce system, main park
speakers systems, amps and related components.
(n) Other Capital: Major repairs or replacement due to electrical failures or short circuits in
risers, panels, disconnect, transformers, circuit boards, main switches and overload
protection and control hardware. Major repairs or replacement due to inclement weather
including but not limited to damage from major & minor leaks, floods, tornados,
hurricanes, lightning, earthquakes and other acts of God.
(o) Elevator/escalator Capital: Major repairs or replacement of any component integral to
elevator/escalators operation including but not limited to cabs, steps & step combs, controls
(internal and external) motors, cables, or other as required by state or county regulation.
(p) Flooring Capital: Including but not limited to replacement of any hard wood, ceramic, vinyl
or other flooring material, except carpeting.
(q) Door/Lock Capital: Major repair or replacement of any entrance security door and its
components including but not limited to glass, metal, steel frame, motorized or manual
roll -up doors, etc. Includes all hardware and software for digital locks and security access
tracking systems.
(r) Roofing/Fascia Capital: Major repair or replacement of any roof or roof type structure
including but not limited to built-up, PVC, EDPM, metal canopies and/or awnings, etc.
Seal coat exterior brick, stucco or precast property envelope no later than every seventh
year or sooner as needed.
(s) Glass/Window Capital: Major repair or replacement of glass/window and components
including but not limited to press or media fixed or retractable windows storefronts, main
entrances, ticketing and restaurants, etc.
[Exhibit B-1 to Stadium Operating Agreement]
EXHIBIT B-2
ROUTINE MAINTENANCE
1. Performing all preventive or routine maintenance which is stipulated in operating manuals for
all components of the Stadium as regular, periodic maintenance procedures.
2. Regular maintenance of the HVAC, plumbing, electrical, water, sewage and field drainage
systems, and escalators and elevators, including periodic cleaning, lubricating, servicing and
replacement of incidental parts.
3. Grounds keeping, including mowing, seeding, fertilizing and re -sodding of all grasses and
maintenance and replacement of all shrubs and flowers and maintenance of all trees.
4. Changing of isolated light bulbs, fuses and circuit breakers as they burn out or require
replacement.
5. Painting and reapplication of protective materials, including but not limited to caulk, sealant
and strip -resistant materials.
6. Maintenance of the scoreboards, instant replay boards and/or advertising panels, including but
not limited to the replacement of isolated bulbs in connection therewith.
7. Repair and maintenance of isolated seats and seat standards, the public address system,
speakers, amplifiers and control panels, if any.
8. Regular wear and tear, including repair or replacement of any item due to use by the Team.
9. Maintaining the surfaces in a level, smooth and evenly -covered condition with the type of
surfacing material originally installed or such substitute as shall in all respects be equal in
quality, use, and durability and restriping, repairing and replacing of paved and parking areas.
10. Removing all papers, mud and sand, debris, filth and refuse and thoroughly sweeping the area
to the extent reasonably necessary to keep the area in a clean and orderly condition.
11. Placing, keeping in repair and replacing any necessary appropriate directional signs, markers
and lines.
12. Operating, keeping in repair and replacing, where necessary, such artificial lighting facilities
as shall be reasonably required.
13. Maintaining all perimeter and exterior building walls including but not limited to all retaining
walls in a good condition and state of repair.
14. Maintaining, mowing, weeding, trimming and watering all landscaped areas and making such
replacements of shrubs and other landscaping as is necessary.
[Exhibit 13-2 to Stadium Operating Agreement]
[Exhibit B-2 to Stadium Operating Agreement]
EXHIBIT C
GUARANTY
[Conform to Exhibit of Master Lease once final]
[Exhibit C to Stadium Operating Agreement]
EXHIBIT D
INSURANCE"
s
1. MBU Insurance. Throughout the Term of the Agreement, including any Options, MBU
shall provide and maintain, at its expense, the following insurance with respect to any Claims
caused by, resulting from, arising out of or in connection with MBU and Team's operations, duties
and obligations pursuant to this Agreement:
(a) Commercial General Liabilitv insurance with limits not less than $1,000,000 each
occurrence and $2,000,000 in the aggregate. Such insurance shall include coverage
for contractual liability, products -completed operations liability, personal and
advertising injury liability, participant legal liability, premises liability, liquor
liability (for sale of alcohol), third party property damage and bodily injury liability
(including death).
(b) Automobile Liabilitv insurance covering liability arising out of MBU's use,
operation and/or maintenance of any auto (including owned, non -owned, leased,
hired or borrowed), with limits not less than $1,000,000 combined single limit each
accident for bodily injury and property damage.
(c) Workers' Compensation insurance with statutory limits as required by the State of
Florida covering all MBU and Team employees. Such insurance policy shall also
include Employer's Liability coverage with limits not less than $1,000,000 each
accident, $1,000,000 disease -each employee and $1,000,000 disease -policy limit.
(d) Garage keepers Leiaal Liabilitv for liability arising out of damage to automobiles
left in MBU's care, custody or control in the Stadium parking areas, with limits of
not less than $1,000,000 combined single limit each loss. Coverage is contingent
upon establishing liability on the part of MBU. Said requirement may be satisfied
through insurance maintained by a parking management contractor.
(e) Umbrella and/or Excess Liabilitv insurance with limits not less than $10,000,000
each occurrence and in the aggregate shall apply in excess of and on a following
form basis to the underlying Commercial General Liability, Garage keepers Legal
Liability, Automobile Liability and Employer's Liability policy limits.
(f) Property insurance covering MBU's business personal property, including but not
limited to FF&E and Trade Fixtures, located at the Stadium. Covered property shall
include any improvements to the Stadium owned by MBU, including movable
property which is not permanently affixed to the Stadium and is capable of removal
at the end of the Term. Said policy shall provide coverage on a replacement cost
basis, and shall be written on a special causes of loss coverage form insuring against
all risks of physical loss and/or damage, including, but not limited to, the perils of
"NTD: To conform to Article 10 of the Master Lease once finalized.
[Exhibit D to Stadium Operating Agreement]
flood, earthquake, collapse, windstorm, fire, vandalism and malicious mischief,
sprinkler leakage, theft and water damage coverage.
2. Citv Insurance. Throughout the Term of this Agreement, including any Options, the City
shall provide and maintain, at its expense, the following insurance or equivalent self-
insurance for which the liability of the City shall be subject to Section 768.28, Florida
Statutes with respect to any Claims caused by, resulting from, arising out of or in
connection with the operations, duties and obligations of City pursuant to this Agreement:
(a) Commercial General Liabilitv coverage with limits not less than $1,000,000 each
occurrence and in $2,000,000 in the aggregate. Such insurance shall include
coverage for contractual liability, products -completed operations liability, personal
and advertising injury liability, participant legal liability, premises liability, liquor
liability (if applicable), third party property damage and bodily injury liability
(including death).
(b) Automobile Liability coverage for liability arising out of City's use, operation
and/or maintenance of any auto (including owned, non -owned, leased, hired or
borrowed), with limits not less than $1,000,000 combined single limit each accident
for bodily injury and property damage.
(c) Workers' Compensation. The City is self-insured pursuant to Chapter 440, Florida
Statutes covering all City employees. Such insurance policy shall also include
Employer's Liability coverage with limits not less than $1,000,000 each accident,
$1,000,000 disease -each employee and $1,000,000 disease -policy limit.
(d) Property insurance covering the Stadium (including all structural components,
systems components or integral parts of the Stadium, the Stadium Property, parking
areas and appurtenant improvements) on a replacement cost basis and sub -limits in
amounts that are customary, as established using an appropriate industry standard
probable maximum loss analysis (as long as such sub -limits are commercially and
reasonably available). Said policy shall be written on a special causes of loss
coverage form insuring against all risks of physical loss and/or damage, including,
but not limited to, the perils of flood, earthquake, collapse, windstorm, fire,
vandalism and malicious mischief, sprinkler leakage, theft and water damage
coverage.
[Exhibit D to Stadium Operating Agreement]
EXHIBIT E
Memorandum of Lease
[Conform to Exhibit in Master Lease]
[Exhibit E to Stadium Operating Agreement]