File Number: 080474
|Printable PDF Format|
|File Number: 080474||File Type: Resolution||Status: Amended|
|Version: 0||Reference:||Control: Board of County Commissioners|
|Requester: County Manager||Cost:||Final Action:|
|Sunset Provision: No||Effective Date:||Expiration Date:|
|Registered Lobbyist:||None Listed|
|Acting Body||Date||Agenda Item||Action||Sent To||Due Date||Returned||Pass/Fail|
|Board of County Commissioners||2/21/2008||Special Item No. 1||Amended|
|REPORT:||See Agenda Item Special Item No. 1 Amended (Legislative File # 080526).|
|County Attorney||2/20/2008||Assigned||Geri Bonzon-Keenan||2/20/2008|
|County Manager||2/20/2008||Assigned||County Attorney||2/21/2008||2/21/2008|
RESOLUTION APPROVING TERMS OF AND AUTHORIZING COUNTY MAYOR OR HIS DESIGNEE TO EXECUTE BASEBALL STADIUM AGREEMENT BY AND AMONG COUNTY, CITY OF MIAMI AND FLORIDA MARLINS, L.P., RELATED TO DEVELOPMENT OF NEW BALLPARK FOR FLORIDA MARLINS AND TO EXERCISE ANY AND ALL OTHER RIGHTS CONFERRED THEREIN; AND APPROVING ASSIGNMENT OF OFFICE OF INSPECTOR GENERAL AS INDEPENDENT PRIVATE SECTOR INSPECTOR GENERAL FOR BALLPARK PROJECT
WHEREAS, this Board desires to accomplish the purposes outlined in the accompanying memorandum, a copy of which is incorporated herein by this reference,
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMI-DADE COUNTY, FLORIDA, that:
Section 1. The matters contained in the foregoing recitals are incorporated in this resolution by reference.
Section 2. The Board hereby approves the terms of and authorizes the County Mayor or his designee to execute the Baseball Stadium Agreement by and among the County, the City, and Florida Marlins, L.P. in substantially the form attached to this resolution as Exhibit A and incorporated herein by this reference (the “BSA”) and to exercise any and all other rights conferred therein.
Section 3. This Board hereby approves the assignment of the Office of the Inspector General as the Independent Private Sector Inspector General for purposes of the ballpark project.
Section 4. The Board hereby authorizes the retention of any consultants, outside expertise and outside counsel to assist with the ballpark project.
To: Honorable Chairman Bruno A. Barreiro and Members,
Board of County Commissioners
From: George M. Burgess
Subject: Resolution Authorizing Execution of Baseball Stadium Agreement among Miami-Dade County, the City of Miami, and the Florida Marlins, L.P., Related to the Design, Development, and Construction of a New Baseball Stadium for the Florida Marlins at the Orange Bowl Site; and Approving the Assignment of the Inspector General as the Independent Private Sector Inspector General for the Ballpark Project
It is recommended that the Board adopt the attached Resolution approving the terms of and authorizing the County Mayor or his designee to execute the accompanying Baseball Stadium Agreement (BSA) among the County, the City of Miami (City) and the Florida Marlins, L.P. (Team) formalizing the terms and conditions related to the design, development, and construction of a new baseball stadium (Stadium) at the Orange Bowl site. In addition, it is recommended that the Board approve the assignment of the Inspector General as the Independent Private Sector Inspector General for the Baseball Stadium project. This item also authorizes the County Mayor or his designee to retain necessary outside expertise, if necessary, to assist with the Project.
While the Stadium will be located in Commission District 5, its scope is countywide in nature.
FISCAL IMPACT / FUNDING SOURCE
The County’s contribution to the Stadium construction cost totals $347 million. This funding consists of $297 million of County tourist tax revenues and $50 million of Building Better Communities General Obligation Bond funds (approved via R-1371-07). Specifically, the tourist tax funding includes $60 million of funding from the CDT, $88 million of funding from the TDT, and $149 million of funding from the PST. These tourist taxes are eligible funding sources pursuant to State Law for the purpose of funding a stadium. Furthermore, the $149 million of PST funding can only be used to fund debt service on bonds issued to cover the capital costs of a professional sports franchise facility. The TDT funding will be secured by the 20 percent TDT revenues dedicated to be spent by County ordinance within the boundaries of the City of Miami. It is important to note that these tourist taxes cannot be used for general government funding purposes, such as social services, public safety, and public education. The City and Team’s contributions are discussed below.
Other costs associated with this project include certain County-related public infrastructure improvements, permit fee waivers, Inspector General fees, assigned internal staff, and the use of any outside consulting services to assist the County with this project. Public infrastructure costs are being determined in conjunction with the City and Team and such costs are to be shared between the County and City. Fee waivers, Inspector General fees, staff and consultant costs, and the like, would be funded from interest earned on County-issued bonds. The County will contribute $750,000 per year to the Capital Reserve Fund from CDT funds. Also, with any large complex project there are risks associated with this project, all of which have been, in our judgment, limited to the extent possible. Some managed risks include environmental liability beyond insurance coverage levels and the risk that the sales tax procurement program under this agreement is not approved by the State.
TRACK RECORD / MONITORING
The County Executive Office will be responsible for managing and monitoring this project.
Miami-Dade County has been actively pursuing and committed in its efforts to develop a new stadium for the Florida Marlins and residents of the County for several years. During this time we have evaluated numerous sites in multiple jurisdictions and have requested funding assistance from the state on several occasions. As you are aware, the University of Miami’s decision to leave the Orange Bowl and move its football program to Dolphin Stadium beginning next season has made the Orange Bowl site available for the design, development, and construction of a professional baseball stadium. The County, City, Team and Major League Baseball (MLB) have been negotiating the proposed BSA (Attachment 1) for the construction of a professional baseball stadium at the Orange Bowl site for some time now. The Marlins lease at Dolphin Stadium expires after the 2010 season. A binding agreement will provide a firm commitment from all parties to expeditiously move the stadium project forward, in order to complete the stadium in time for the 2011 baseball season. It will also allow the County, City, and Team to proceed with the negotiation and development of the definitive stadium agreements referenced in the BSA, including the Non-Relocation Agreement, Assurance Agreement, Management Agreement and Construction Administration Agreement. All of these agreements will come back to the Board for approval before July 1, 2008.
BASEBALL STADIUM CONSTRUCTION BUDGET
The estimated cost for the design, development, and construction of the stadium at the Orange Bowl site for a 2011 opening is approximately $515 million. This assumes an aggressive 29-month construction period (November 2008 estimated construction start date).
The funding contributions from each party towards the stadium construction cost of $515 million is shown in Table 1 and discussed further below:
Table 1 – Funding Contributions Toward Stadium Development****
Source County City Team Total
Team Funding* $155,000,000 $155,000,000
County Funding** $347,000,000 $347,000,000
City Funding*** $13,000,000 $13,000,000
Total $347,000,000 $13,000,000 $155,000,000 $515,000,000
*$35 million of the $155 million Team Funding Contribution is funded through annual rent payments of approximately $2.3 million to the County through the term of the Management Agreement.
**County funding includes $50 million of General Obligation Bond proceeds approved via R-1371-07 and $297 million of bed tax revenues as described in this memorandum, to be deposited by the County no later than October 31, 2008. The County will also issue $35 million of debt to be paid from Team Rent payments
***City funding does not include an estimated $10 million for Orange Bowl demolition and site preparation that is outside the stadium construction budget. It also does not include the value of land provided for the baseball stadium and an estimated $94 million for 6000 on-site garage and surface parking spaces
****The disbursement of funds from the Stadium Project Construction Fund to pay cost of the Baseball Stadium shall be made first from the County Account and the City Account ratably until such funds are exhausted, then from the Team Account.
As mentioned previously, the County’s contribution to the Baseball Stadium Cost totals $347 million. This funding consists of $297 million of County tourist tax revenues and $50 million of Building Better Communities General Obligation Bond funds (approved via R-1371-07). The tourist tax funding includes $60 million of funding from the CDT, $88 million of funding from the TDT, and $149 million of funding from the PST.
To ensure there is no confusion as to the level of County funding towards the Baseball Stadium Cost, it is important to point out that the amount the County will finance to support the new ballpark has changed from the draft BSA dated December 18, 2007. The draft BSA was deferred by the Board on December 18, 2007 and January 10, 2008, and withdrawn on January 22, 2008, subject to completion of Stadium negotiations. The draft BSA reflected a total of $249 million in County funding and did not yet account for the adjustments approved as part of the Global Agreement on December 18, 2007. The Global Agreement provided that the County issue $88 million of TDT debt utilizing the 20 percent share of the TDT that must be spent within the City of Miami and, that the County would issue an additional $10 million in PST financing to fully fund the stadium construction budget and allow the City to free up a portion of CDT funding received by the City to be used for the parking garage. These changes also result in corresponding decreases to the City’s stadium construction contribution.
Table 2 is provided below to reconcile the County funding amounts shown in the initial draft BSA to the proposed BSA:
Table 2 – Reconciliation of County’s Funding Contribution for Stadium Development
Funding Source Previous BSA Current BSA Difference
PST (addn’l $10 million approved as $139,000,000 $149,000,000 $10,000,000
part of Global Agreement)
TDT (originally reflected as City $0 $88,000,000 $88,000,000
contribution, but County is retaining
the TDT, thus moved to County’s contribution)
CDT $60,000,000 $60,000,000 $0
GOB $50,000,000 $50,000,000 $0
Total $249,000,000 $347,000,000 $98,000,000
The City’s contribution to the stadium construction budget is $13 million. The City will also contribute the land (estimated at approximately 13 acres of the Orange Bowl site for the new ballpark) and pay for all costs associated with the demolition and disposal of the existing Orange Bowl stadium debris (estimated at $10 million). The City is also funding and constructing 6000 on-site parking spaces at an estimated cost of $94 million.
Table 3 is provided below to reconcile the City funding amounts in the initial draft BSA to the proposed BSA:
Table 3 – Reconciliation of City’s Funding Contribution for Stadium Development*
Funding Source Previous BSA Current BSA Difference
TDT $48,000,000 $ 0 ($48,000,000)
CDT ($10 million remains for demolition) $60,000,000 $10,000,000 ($50,000,000)
CDT (City contribution to stadium construction) $13,000,000 $13,000,000 $0
Total $121,000,000 $23,000,000 ($98,000,000)
*Excludes $94 million for 6,000 on-site parking spaces
The Team’s contribution to the stadium remains at $155 million.
The draft BSA stated that the Team would privately finance the full $155 million. During recent negotiations it was agreed that the Team would shift to a hybrid financing structure whereby the Team would privately finance $120 million of the stadium construction costs and make annual rent payments to the County, upon stadium completion, of $2.3 million per year. Based on current interest rates, estimated issuance costs, and estimated capitalized interest, this equates to a net present value of approximately $35 million, bringing the Team’s stadium construction funding contribution to $155 million. In exchange for allowing the Team to switch to the hybrid financing structure, the Team agreed to make annual payments of $750,000 into the stadium Capital Reserve Fund that will total $26.25 million through the 35-year term of the Management Agreement. Adequately funding the Capital Reserve Fund is a critical element in protecting the County’s ownership interest in the stadium in future years. It should be noted that in other recent baseball stadium agreements between MLB teams and government entities in Pittsburgh, Washington D.C., and Cincinnati, the government entity was fully responsible for funding similar Capital Reserve Funds, with no contribution from the team.
It should also be noted that as a result of the hybrid financing structure, the County will be required to issue an additional $35 million of PST bonds to fully fund stadium construction costs. As mentioned above, the annual rent payments by the Team will be used to offset debt service payments associated with the additional $35 million of debt.
BASEBALL STADIUM AGREEMENT
The BSA is the initial agreement of several agreements and bond-related documents relating to the baseball stadium that will come before this Board and the City Commission over the next several months. In addition to the Construction Administration Agreement, Management Agreement, Assurance Agreement, and Non-Relocation Agreement, the BSA also sets into motion several important site-related actions such as re-platting and road abandonment for the existing site, initial permitting and zoning, site survey, phase II environmental work, demolition and disposal of the existing Orange Bowl stadium debris, utility relocation, and planning for public infrastructure needs. As you will see in the BSA (Attachment 1), the timelines for all of these actions require close coordination between the City, County, and Team to allow for an April 1, 2011 completion date (targeted completion date). Some of the key issues of the BSA, other than the financial commitments of the County, City, and Team, are shown below:
1. Team Name Change – The Team will change its name to the Miami Marlins prior to the stadium completion date.
2. Baseball Stadium - The ballpark will be a first class Major League Baseball stadium at the Orange Bowl site owned by the County, having a retractable roof, a natural grass playing field, a capacity of approximately 37,000 seats, including approximately 3,000 club seats, approximately 60 private suites, 81,000 affordable seats throughout the regular season, and concession, entertainment and retail areas, fixtures, furnishings, equipment, features and amenities comparable with other recently constructed Major League Baseball ballparks, including but not limited to those in San Diego, St. Louis, Philadelphia, Pittsburgh, and Milwaukee.
3. Baseball Stadium Site - The Baseball Stadium Site, as defined in the BSA, consists of approximately 13 acres (Team estimate), inclusive of the stadium footprint, a perimeter of approximately 100 feet beyond the dripline of the stadium footprint, and such areas reasonably necessary to accommodate and provide support for the retractable roof. The Baseball Stadium Site is currently owned by the City but ownership will be conveyed to the County upon completion of the site development requirements detailed in Section 4.01 of the BSA.
4. Non-Relocation Agreement - The Team shall enter into a Non-Relocation Agreement that will unconditionally require the Team to maintain its Major League Baseball franchise in the City of Miami for the term of the Management Agreement. The Non-Relocation Agreement shall require the Team to operate and maintain a Major League Baseball franchise with the Baseball Stadium as its home stadium and to play all of its regular season and post-season home games at the Baseball Stadium.
5. Site Development – Some of the key provisions/deadlines related to development of the Baseball Stadium Site are as follows:
• The City has previously delivered a Phase 1 Environmental Site Assessment Report to the County and the Team, and, prior to March 1, 2008, shall certify said Report to the County and Team, and, provide any appropriate updates to this report. By March 10, 2008, a Limited Phase II Environmental Site Assessment Report addressing the Filling Station Site identified within the Phase I Report shall be certified by the City to the County and Team. By March 15, 2008, an Expanded Phase II Environmental Site Assessment investigating soil and groundwater quality within that portion of the Entire Site not identified in the Limited Phase II Report mentioned above shall be certified by the City to the County and Team; the scope of the Expanded Phase II has previously been delivered to the County and Team.
• The City will be responsible for remediation of any environmental contamination existing on or originating from the Filling Station Site and the Public Infrastructure sites within the Entire Site, but excluding environmental conditions within the Baseball Stadium Site.
• Once the County accepts conveyance of the Baseball Stadium Site, the County, as owner, will be subject to liability for environmental conditions on the site. The cost for required remediation of identified environmental conditions on the Baseball Stadium Site is covered to the extent of coverage provided in the environmental insurance policy purchased by the City. The environmental insurance policy will have coverage limits of $5 million per incident and limits of $5 million in the aggregate, with an understanding that the City will increase the coverage limits as necessary provided the increase in coverage does not increase the premium for $5 million of coverage by more than 50%. The policy will exclude remediation of known conditions disclosed in the Phase I, Limited Phase II, and Expanded Phase II Environmental Assessment Reports, but will cover remediation costs and liability for conditions not disclosed by those reports. The policy will go into effect as of the site Acceptance Date. The allocation of cost between the County and the Team for remediation of environmental conditions within the Baseball Stadium Site that is not covered by the insurance policy or which exceeds the coverage limits and the terms of such environmental remediation, will be addressed in the Construction Administration Agreement. At least 15 days prior to the Acceptance of the Site, the City will deliver a binder for the environmental insurance policy to insure the City, County, and Team for the Baseball Stadium Site.
• The County and the Team, prior to Acceptance of the Baseball Stadium Site, shall have the right to undertake at their own expense, physical inspections or other investigations to determine the condition of the site in order to help select the best location for the Baseball Stadium Site and Public Infrastructure.
• Promptly following the Effective Date, the County and the Team shall perform their necessary roles in a prompt and diligent manner with respect to the City’s applications for replat of the Entire Site and approval of a Major Use Special Permit.
• Within 10 days following the Effective Date of this Agreement, a title insurance commitment and opinions of title relating to the Entire Site shall be provided by the City committing to insure the County’s acquisition of the Baseball Stadium Site; within 30 days of receipt of these documents, the County and Team shall examine all title documents and notify the City of any Title Defects. The County and Team, at their discretion, may also elect to purchase a title insurance policy if deemed necessary by the County and Team. If cost of said policy is less than or equal to $10,000, the policy shall be paid for by the Team, if over $10,000, shall be split equally between the County and the Team.
• Prior to March 14, 2008, a survey of the Entire Site shall be provided to the City, County, and the Team. A revised survey shall be delivered to the County and the Team updating the perimeter of the Baseball Stadium Site within 60 days after the selection of the Baseball Stadium Site.
• Prior to March 31, 2008, the County, City, and Team shall agree on the location and layout of the Baseball Stadium Site, and, to the extent feasible, the location of Public Infrastructure within the Entire Site. The County Mayor or his Designee shall have the authority to agree on the location of the Site and the location of Public Infrastructure.
• The City shall commence demolition of the Orange Bowl within 30 days of receipt of a binding letter of vested rights from the Florida Department of Community Affairs, or similar DRI-related preliminary agreement, and will complete demolition and debris disposal within 4 months thereafter.
• From the Effective Date of this Agreement through 45 days following completion of the demolition of the Orange Bowl (Acceptance Date), the County Mayor or his Designee and Team shall have the right to “Terminate for Site Condition” if not satisfied with the condition of the Entire Site. The County termination right shall only apply if the Team does not agree to pay cost of required remediation work in the case of identified environmental hazards or other site conditions. If the termination right is not exercised by the Acceptance Date, the County and the Team shall be deemed to have accepted the Baseball Stadium site in its condition as of that date and to have acknowledged that, except for the environmental conditions the City has agreed to remediate and certain title exceptions cured by the replat, the City specifically negates and disclaims any representations and warranties as of the Acceptance Date regarding the Entire Site, including specifically, but without limitation, environmental, soil and subsoil conditions and compliance with laws, rules and regulations.
• Following Acceptance of the Baseball Stadium Site by the County and approval of the replat, MUSP, and other necessary City permits, the City shall convey to the County by Warranty Deed, fee simple title to the Baseball Stadium Site. The Warranty Deed shall provide for reversion of title to or at the direction of the City if the Management Agreement is terminated or the County fails to secure a replacement professional sports franchise for the Baseball Stadium within three (3) years after such termination.
6. Cost Overruns - The Team or the appropriate Team Affiliate will be responsible for the hiring of the Design team, and the Construction Manager. The Stadium Developer will be responsible for cost overruns other than “governmentally caused overruns” which are defined in the BSA, Section 4.09. The Construction Administration Agreement would require the County and the City each to fund Governmentally Caused Overruns to the extent caused by it. The definition of Governmentally Caused Overruns includes costs for delays or increased costs to the Stadium project budget due to public infrastructure work, such as relocation of utilities, unless associated with environmental contamination within the Baseball Stadium Site, or any work by the County or City under the BSA; a delay caused by the failure of the County or the City to meet a deadline imposed under Article IV or Sections 8.03 or 8.04; and a change in law enacted by the County or the City, other than a change of general application mandated by State law.; at the time of execution of the Construction Administration Agreement the Stadium Developer shall provide the County and the City with evidence that is has in place a dedicated bank line of credit or other similar financial arrangement in the amount of at least $20,000,000 that may be used to pay for cost overruns. The Assurance Agreement will provide that the Team will guarantee the payment and performance of all obligations of the Stadium Developer under the Construction Administration Agreement.
7. Architect - The Team will retain HOK Sport, Inc., d/b/a HOK Sport+Venue+Event (HOK) as the lead architect for the Baseball Stadium. HOK must make reasonable good faith efforts to ensure compliance with the County’s CBE-A/E program by the major design and construction professionals engaged by HOK.
8. Construction Manager - The Stadium Developer is required to either competitively select a Florida licensed contractor to serve as Construction Manager or obtain an appropriate bid waiver for the selection of a Construction Manager in accordance with State and local law, as described in Section 4.05 of the BSA. The Construction Manager’s contract requires compliance with State and local laws, including, but not limited to, the County’s CSBE small business programs, responsible wages and benefits, Community Workforce, and Sustainable Buildings Program (subject to limitations described below). The Construction Manager and the Stadium Developer must deliver to the County a payment and performance bond for the total cost of construction of the Baseball Stadium in compliance with Florida Statutes. However, in lieu of the payment and performance bond, the Stadium Developer may file an alternative form of security equal to the cost of construction management services to be performed by the Construction Manager, as shown in the formula described in Section 4.05 of the BSA.
9. Plans and Specifications – The Project Program Statement incorporates the general features of the Baseball Stadium. The Construction Administration Agreement shall provide the City and the County have 10 business days from receipt to confirm that submitted Plans and Specifications are generally consistent in all material respects with the Project Program Statement
10. Design Team – Within 30 days of the Effective Date, the parties shall form a design review committee to meet with the Design and Construction Professionals and the Construction Manager to develop no more than three conceptual recommendations of design related to the exterior aesthetics of the Baseball Stadium. The Design Team shall consist of five members: two members appointed by the Team, one member appointed by Major League Baseball; one member appointed by the City and one member shall be appointed by the County Mayor or his Designee. The Design Team shall select a design with assistance from the Design and Construction Professionals and the Construction Manager within 10 business days following receipt of the conceptual recommendations.
11. Sustainable Buildings Program –From the outset of design, the Design and Construction Professionals must take into consideration efficient and cost effective approaches to achieve LEED certification. The BSA states that an analysis of any incremental costs associated with measures taken to achieve LEED certification will be provided to the County by June 30, 2008. If the County has not otherwise received an exemption from the County provisions of the Sustainable Buildings Program by May 30, 2008, the County will be responsible for such incremental costs. Accompanying this item is an Ordinance for First Reading requesting exemption from the Sustainable Buildings Program. This exemption is being requested to comply with the provisions of the BSA and as a preventative measure to ensure the County is not held liable for incremental costs associated with LEED certification. At the time the incremental cost analysis is provided, the County may still choose to incorporate the necessary LEED certification components, despite the waiver from the Sustainable Buildings Program.
12. Permits and Zoning – The County and City shall expeditiously process all applications for consents, approvals, and permits necessary to allow for the timely construction of the Baseball Stadium, City Parking, and Public Infrastructure. The BSA includes a 10 business day deadline for the County Manager and City Manager to act on written requests to execute applications, forms, or petitions necessary to meet development requirements for the Baseball Stadium.
13. Building Permit Liaison – Both the City and the County shall dedicate at least one member of its building permit staff, or other appropriate staff, to serve as a liaison for the Baseball Stadium Project and Public Infrastructure and expedite the permitting process and other City and County review and approval processes, at no cost to the Stadium Developer. The County’s liaison shall by designated by the Mayor or his Designee.
14. Permit Fees – City or County permit and other related fees applicable to the Baseball Stadium Project shall be customary and consistent with amounts charged for County or City-owned projects and shall be waived by the City or County, to the extent authorized as of the Effective Date by County or City code provision or administrative regulation. If waivable fees are advanced to the City or County by the Team Affiliate, such fees shall be promptly reimbursed to the Team Affiliate.
15. Project Coordination Team – The Construction Administration Agreement shall require the Stadium Developer to form an administrative committee that includes representation from the County and the City for the following purposes: 1) receive reports from the Design and Construction Professionals pertaining to the construction schedule, 2) maintain clear lines of communication to facilitate a successful Baseball Stadium Project, 3) receive reports, 4) review change orders to ensure they are materially consistent with the Project Program Statement. The Project Coordination Team shall be required to meet at least on a monthly basis. The County’s representative on the Project Coordination Team shall be designated by the Mayor or his Designee.
16. Sales Tax Procurement – The County and the Team agree to use reasonable best efforts to develop a successful program to procure construction materials and equipment for the Baseball Stadium on a sales tax exempt basis under State law. This will be subject to the Team’s receipt of a favorable opinion from the State of Florida Department of Revenue (DOR) indicating that purchases in accordance with such procurement program will be exempt from sales tax. DOR will issue a favorable opinion only if the County bears the risk of loss of all materials and equipment purchased under the program. Although insurance may be purchased to mitigate such risk, the County would be required to bear the risk of loss while those goods are in transit and some risk prior to the time the goods and equipment are incorporated into the Baseball Stadium. This risk of loss may also be cause for a Governmentally Caused Overrun. If a favorable opinion is not issued, the County shall fund the increase to the Stadium Project Budget solely attributed to sales tax paid for construction materials and equipment for the Baseball Stadium that were expected to be exempt from tax under the materials procurement program in an amount not to exceed $4.4 million.
17. Office Space – At no cost to the City or County, the City and the County shall assist the Team in identifying and locating at least 3,000 square feet of downtown office space within two miles of the Baseball Stadium Site that is suitable for marketing purposes.
18. Other Development – The City shall keep the County and Team informed of any plans it develops for Other Development, which may include a soccer stadium, commercial, and retail components. The BSA (Section 4.11) provides for agreement between the City and the Team on the restrictions related to Other Development. The County shall have the right to review the plans and specifications as well as leases in respect of any Other Development, and, shall be a party to an appropriate legal instrument between the City, County, and Team with respect to these restrictions running with the Entire Site.
19. Public Infrastructure - The County and City will be responsible for public infrastructure needs such as road improvements, utility relocations, and traffic signalization improvements, as determined by the project design, with estimated costs, as well as the allocation of these costs between the City and County to be detailed in the Construction Administration Agreement.
20. Parking - The City will be responsible for construction, operation, and maintenance of parking facilities on the site, sufficient to house at least 6,000 parking spaces. The Team and the County shall have the right to review, comment upon, and approve the program and design features of the City Parking. The City, County (Mayor or his Designee), and Team shall each have approval rights for the location of the City Parking on the Entire Site.
21. State Funding – The County and the City shall make reasonable efforts and work cooperatively, including reasonable assistance from the Team, to secure funding from the State in the form of a sales tax rebate or other available State funding to defray costs related to the Baseball Stadium Project or the Baseball Stadium. Unless otherwise required by the State, the amount of any such State funding shall be deposited into the Capital Reserve Fund as described in Item 26 below.
22. Management Agreement – The County, Stadium Manager, and, if necessary, the City, shall enter into a Management Agreement which shall set forth the terms for the exclusive right, authority, and responsibility for operation, management and use of the Baseball Stadium by the Stadium Manager. The term of the Management Agreement shall be 35 years with two five-year renewal periods.
23. Labor Peace Agreement – In consideration of a memorandum from Commissioner Seijas relating to inclusion of a Labor Peace Agreement relating to food and concessions workers at the stadium, the County is in discussions with the Team and will work with them as we develop the appropriate language for the Management Agreement which will best address such labor concerns.
24. Community Events – The County and the City shall each have the right to use the Baseball Stadium eight days per year for amateur athletic, public service, or other non-profit events, provided all costs associated with its use, are covered by the County or City, as appropriate.
25. Maintenance and Repairs – The Stadium Manager shall be required to undertake and pay the costs of all maintenance and repairs, including, but not limited to, game day operations, security on the Baseball Stadium Site, utilities, custodial services, premiums for insurance, and supplies and other consumable goods. The County shall use reasonable best efforts to assist the Stadium Manager to secure utilities for the Baseball Stadium at rates comparable to the County’s reduced bulk rates.
26. Capital Improvements – The Stadium Manager is permitted to make Necessary Improvements (defined in the BSA) on behalf of the County as it deems necessary or appropriate and provide that the cost of these improvements shall be paid or reimbursed to the Stadium Manager from funds in the Capital Reserve Fund. For Capital Improvements (other than Necessary Improvements), the Capital Reserve Fund cannot be used to reimburse the Team Affiliate. However, for capital improvements having a cost of $400,000 or more, the Stadium Manager’s authority to make such capital improvements is subject to written approval of the County.
27. Capital Reserve Fund – The Management Agreement shall provide for the creation of the Capital Reserve Fund, to be funded annually, as shown below. The BSA contemplates the creation of a Community Development District by the City, County, and Team for the purpose of developing, financing, operating, managing and maintaining certain basic infrastructure, public improvements and community facilities within the Entire Site. To the extent funding is available, the CDD would also, directly or indirectly, provide funding to the Capital Reserve Fund beginning in Year 11.
Capital Reserve Fund Payment Schedule – Without State Funding
Years 1 – 10 Years 11-20 Years 21-35
County $750,000 $750,000 $750,000
Team $750,000 $750,000 $750,000
City $250,000 $250,000 $250,000
City CDD $0 $250,000 $500,000
Total $1,750,000 $2,000,000 $2,250,000
Alternatively, and as discussed in Item 20, any State funding received shall be deposited into the Capital Reserve Fund. In such an event, the annual contributions to the Capital Reserve Fund by each party would be adjusted as shown below. This payment schedule assumes receipt of the $2,000,000 annual sales tax rebate:
Capital Reserve Fund Payment Schedule with State Funding
Years 1 – 10 Years 11-20 Year 21-35
County $250,000 $500,000 $500,000
Team $250,000 $500,000 $500,000
City $0 $0 $0
City CDD $0 $250,000 $500,000
State $2,000,000 $2,000,000 $2,000,000*
Total $2,500,000 $3,250,000 $3,500,000
*State sales tax rebate is 30 years in duration
28. Team Revenues and Promotional Rights – The Management Agreement shall provide that all Team Revenues and Promotional Rights are owned by the Team and Team Affiliates. The Stadium Manager must obtain written approval for the name of the Baseball Stadium from the County. The name (including the commonly known name and the parent company name, but excluding any name associated with tobacco or adult entertainment) of any Fortune 1000 company or any of its subsidiaries or products, any bank, any cruise line, any airline, or any nationally recognized beverage company (including alcohol) shall each be deemed to be an approved named.
29. Intangible and Ad Valorem Taxes – The Team’s use of the Baseball Stadium is subject to the annual intangible tax imposed by the State. As a County-owned facility, the Baseball Stadium is immune from ad valorem real property taxes. If any ad valorem, real property taxes shall be levied on the Team or Team Affiliates in the Baseball Stadium during the term of the Management Agreement, to the extent permitted by then applicable law, the Team Affiliates will be permitted to reduce the amount of their payment obligations otherwise due to the County and the City, respectively, under the Stadium agreements, up to the amount of the ad valorem tax due to either the City or County.
30. Targeted Taxes – The Management Agreement shall provide that neither the County nor the City shall impose any Targeted Taxes during the term of the Management Agreement. If the Team affiliate believes that a tax imposed or enabled by the County or other City constitutes a Targeted Tax, then the Team Affiliate shall have the right to institute court proceedings to challenge the permissibility of the tax under this Agreement.
31. Community Benefit Obligations - The Team is required to develop a strong and substantial community benefits package that shall include promotional and charitable activities for South Florida’s youth through its Team Foundation, its advertisers and sponsors, and players and other Team personnel; such a package shall include affordable seats, complimentary tickets to underprivileged youth through appropriate Miami-Dade County charities, educational, athletic, health, and social and community programs; the Team shall also participate in Major League Baseball’s Diverse Business Partners Program designed to create opportunities for minority and women owned businesses to participate in the procurement activities of Major League Baseball organizations. Also, the Stadium Manager shall make available at no charge, one suite to each regular season home game for public and/or charity use. The County and the City shall each have the right to designate the public or charity use for the suite for 27 games each, and the Stadium Manager shall designate the charity or other use for the remaining games.
32. Sale of Control Interest – Upon either a sale to a third party of a “control interest” in the Team or a sale of the Team’s franchise within the first 5 years after the execution of this Agreement, the Team shall cause seller to pay to the County and the City, to be split on a pro rata basis, an amount equal to a percentage of the net proceeds, as more precisely defined in Section 7.14 of the BSA.
33. Stadium Agreements – On or before March 30, 2008, the Team shall deliver to the County and City initial drafts of the Construction Administration Agreement, the Non-Relocation Agreement, the Assurance Agreement and the Management Agreement. Such agreements must be approved by all parties prior to July 1, 2008.
34. Deposit of County Funding – The County is required to make necessary deposits into the County Account of the Stadium Construction Fund by October 31, 2008.
35. Termination Rights of County and City – The County (Mayor or his Designee) or City may terminate this Agreement and be relieved of all liabilities under this Agreement (with the exception of breaches by the County or City prior to termination) if the parties cannot agree to the terms of any one or all of the Stadium Agreements by August 31, 2008. In such an event, each of the County, City, and Team shall be responsible for one-third of the total reasonable actual out-of-pocket costs expended by all three parties relating to the Baseball Stadium Project, from the Effective Date through the later of 1) the date of the notice of termination or 2) July 1, 2008, in the categories and approximate amounts detailed in the initial Draw Down Schedule in Exhibit E of the BSA).
36. Termination Rights of Team – The Team may by written notice to the County and the City terminate this Agreement and be relieved of all obligations and liabilities under this Agreement if 1) the County or City breaches this Agreement in any material respect and has not cured that breach within 30 days after written notice from the Team specifying the breach and demanding that it be cured, 2) the County or City missed a deadline specified in Section 4.01 or Article VIII shall be missed or 3) all of the Stadium Agreements have not been executed and approved on or before July 1, 2008. The Team may also terminate the agreement due to site condition issues through 45 days following the completion of the Orange Bowl demolition, as provided in Section 4.01(e).
37. Remedies – The County, City and the Team agree that their respective remedies for any breach of or default under this Agreement shall include: 1) termination rights as previously discussed; 2) The right to seek an injunction or other equitable relief for violations of this Agreement; and 3) the right to recover damages from a party who breaches this Agreement, provided, however, that the damages shall be limited to each non-breaching parties’ Reimbursable Interim Costs through the date this Agreement is terminated. All damages to be paid by the County or the City shall be payable from non-ad valorem revenue sources.
38. Mediation and Arbitration – The BSA provides specific procedures for mediation and arbitration proceedings, and provides that all parties shall bear their own expenses, with the exception of administrative expenses related directly to the arbitration or mediation proceedings, which shall be borne 1/3 each by the Team, County, and City.
39. Amendments and Waivers – The County Mayor or his Designee is authorized under this agreement to approve amendments and waivers to this Agreement that extend deadlines by up to 60 days, without requiring Board approval. All other amendments and waivers must be approved by the Board of County Commissioners.
40. Local Labor – We will work to ensure that the labor pool for construction of the stadium is fairly represented by the community.
41. MLB Requirements – The Team’s obligations under the BSA shall in all respects be subordinate to the approval requirements and other Major League Baseball Rules and Regulations as they are applied generally to all Major League Baseball clubs. However, to the extent that the Team cannot fulfill its obligations to the County or City under this Agreement as a result of its compliance with MLB Rules and Regulations, the County and the City may enforce remedies as provided in the BSA and the subsequent Stadium Agreements.
42. Independent Private Sector Inspector General (IPSIG) - The County Inspector General will act as the Independent Private Sector Inspector General (IPSIG) to provide project-related oversight of the stadium development project, with all IPSIG fees to be paid by the County. We are working with the Inspector General to negotiate staffing levels, costs for their services, and will identify a funding source when the Construction Administration Agreement comes before the Board.
43. Homestead Sports Complex – Subject to approval of a Resolution proffered by Commissioner Moss and scheduled for the February 19, 2008, Board of County Commissioners meeting, the County Mayor or his designee shall consult with the City of Homestead, the Marlins and MLB to study the feasibility of renovating the Homestead Baseball Complex, as necessary, for use by Miami-Dade Big League Baseball, Inc., along with either a major league baseball spring training team or a minor-league baseball team.
44. MLB Youth Baseball Academy – MLB has committed to work with officials to develop a Youth Baseball Academy, contemplated to be located in the City of Hialeah.
45. Public Safety Services – The Management Agreement will address issues relating to staffing of Police and Fire services at the Baseball Stadium.
46. Condition Subsequent - The BSA contains all of the provisions required by Section 10 of the Global Agreement and Article VI of the First Amendment to the OMNI Interlocal Agreement. The City and Team have acknowledged and agreed that the Condition Subsequent has been satisfied and waive any rights each may have to assert otherwise. As of this date the OMNI CRA and Southeast Overtown Park West CRA (CRAs) have not been asked to give the same written acknowledgment and waiver. While all conditions have been met, if the CRAs were to challenge whether the condition subsequent has been satisfied, and be successful in that challenge, the OMNI CRA would not be obligated to remit to the County the increased funding in support of the PAC. Such waiver and acknowledgment by the CRAs will be sought at a later date.
As directed by the Board in Resolution R-1173-07, approved on October 16, 2007, I have negotiated this BSA with MLB, the Florida Marlins, and the City of Miami. The construction of this stadium is, without a doubt, a significant commitment by the County, Team, and City. I am comfortable with the agreement that has been reached but understand there are many conflicting views as it relates to public funding/involvement in construction of professional sports facilities. With that in mind, I am comfortable with the County’s ability to meet our requirements under the BSA to secure public funding for the project, to meet site development requirements of the BSA, and to comply with all of the deadlines and other requirements necessary to complete the construction of the stadium by April 2011. This BSA, in my view, represents the best possible agreement between the parties. Each party would like to see certain terms more favorable to them, but, if we are to see a new ballpark developed, the BSA before you represents a fair agreement that will finally achieve that objective. This agreement was not remotely easy to develop and required a great deal of time and dedication. It is the result of a collective effort among all parties involved.
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