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R-01-0772
U-01.-63'7 7/17/01 • • ©1 772 RESOLUTION NO. A RESOLUTION OF TIIE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING THE CITY MANAGER TO EXECUTE AN INTERLOCAL AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, WITH THE MIAMI SPORTS AND EXHIBITION AUTHORITY FOR THE DEVELOPMENT, CONSTRUCTION AND MANAGEMENT OF A REGIONAL CHILDREN'S MUSEUM TO BE KNOWN AS THE "MIAMI CHILDREN'S MUSEUM" ON APPROXIMATELY 2.32 ACRES ON WATSON ISLAND FOR A PERIOD OF FIFTY YEARS, WITH THE CITY'S EXCLUSIVE OPTION TO EXTEND THE `PERM IN ANY INCREMENT OF YEARS FOR AN ADDITIONAL TWENTY YEARS; PROVIDING FOR AN ANNUAL RENT OF TWO DOLLARS; FURTHER PROVIDING FOR IN-KIND SERVICES FROM THE SUBTENANT WITH A VALUE OF NOT LESS THAN $75,000 PER YEAR, SO LONG AS THE LEASED PROPERTY IS EXEMPT FROM AD VALOREM TAXES. BE IT RESOLVED BY THE C:'OMIMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1.. The City Manager is authorized!' to execute an Interlocal Agreement, in substantially the attached form, with the Miami Sports and Exhibition Authority for the development, construction and management of a regional children's museum to be 1� The herein authorization is further subject to compli.atzce with all. requiremel,ts that may be i.mpognd by the CiLy AL'torney, including but not limited Co Lhose prescribed by ,applicable City Charter and Code provisions. an COmmolo6T mmuld OF ATTACHMENT .►ice soot CONTAINED 01 - 'kl72 known as the "Miami Children's Museum" on approximately 2.32 acres on Watson Island for a period of fifty years, with the City's exclusive option to extend the term in any increment of years for an additional twenty years; providing for an annual rent of two dollars; further providing for in-kind services from the subtenant with a value of not less than $75,000 per year, so long as the leased property is exempt from ad valorem taxes. Section 2. This. Resolution shall become effective immediately upon its adoption and signature of the Mayor.''/ PASSED AND ADOPTED this 26th day of July , 2001. JOE CAROLLO, MAYOR In accordance with Miami Code Sec. 2.36, since the Mayor did not Indicate approval of this legislation by signing it in the signated p provided, said legs latioo ow ATTEST: becomes effective with the elapse ten (10 ay f th date of Co slon ... ')n regarding same, without the Mayor erceng 0 WALTER J. FOEMAN CITY CLERK APPROD S,/ TO FORM AND CORRECTNESS :t/ u jqEJ1ANI3@C-VILARELL0 -oft. ITY ATTORNEY W5470:db:LB =� �Tf: the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days from the date it was passed and adopted. If the •.Mayor vetoes this Resolution, it shall become effective .l. mnedi.ately upon override of the veto by the City Conunission. Page 2 of 2 01— 772 INTERLOCAL AGREEMENT ('MIAMI CHILDREN'S MUSEUM PROJECT) BY AND BETWEEN THE CITY OF MIAMI AND THE MIAMI SPORTS AND EXHIBITION AUTHORITY Dated this day of 2001 �i�''' 17 0 6 TABLE OF CONTENTS • Page STATEMENT OF BACKGROUND AND PURPOSE................................................................ ARTICLE I EXHIBITS AND DEFINITIONS...................................................................2 Section1.1 Exhibits...........................................................................................................2 Section 1.2 Defined Terms; Singular, Plural And Gender................................................2 ARTICLE 2 PURPOSE OF INTERLOCAL AGREEMENT.............................................6 Section 2.1 Purpose of Interlocal Agreement ................. ..............6 ..................................... Section 2.2 tease of Property to the Authority..............................................................6 Section2.3 Title.................................................................................................................6 Section 2.4 Pre -Possession Date Signage..........................................................................7 ARTICLE3 THE TERM.....................................................................................................7 Section3.1 Initial Term.....................................................................................................7 Section3.2 Renewal Term(s).........................................................................................8 AR'riCLE 4 REN"1............................................................................................................... 8 ARTICLE 5 EASEMENTS.................................................................................................8 Section 5,1 Easements Granted to the Authority...............................................................8 Section 5.2 Limitations on Casement Rights....................................................................9 Section 5.3 Easement for Development of Other Areas of Watson Island......................10 Section 5.4 Infrastructure Improvements ........................................I.......................... I 1 Section5.5 Parking..........................................................................................................12 ARTICLE6 USES.........................................................................................................13 Section 6.1 Use of the Property.....................................................................................13 Section 6.2 Conditions Right to Terminate......................................................................14 Section 6.3 Termination of Sublease/Development Agreement......................................16 ARTICLE 7 TAX EXEMPT STATUS; SUBSEQUENT ASSESSMENT ......................16 Section7.1 Impositions................................................................ . ..............................16 Section 7.2 In Kind Services.........................................................................................16 01- 712 ARTICLE 8 CITY'S RIGHT OF ENTRY......................................................................... 18 ARTICLE 9 ASSIGNMENTS AND OTHER TRANSFERS...........................................18 ARTICLE 10 POSSESSION AND CONSTRUCTION OF FACILITIES .........................19 Section 10.1 Delivery of Possession of the Property ......... ..... ...................................19 Section 10.2 The Improvements........................................................................................19 Section 10.3 Manner of Construction of Improvements....................................................19 Section 10.4 Title to the Improvements.............................................................................19 Section 10.5 CITY Property to Remain Free of Liens.......................................................20 ARTICLE 11 POSSESSION AND CONSTRUCTION OF FACILITIES .........................20 - Section 1 I.1 Maintenance of Green space Area....................................:.........................20 Section11.2 Repair of The Improvements ............... ........................... ....................21 Section 11.3 Alterations.....................................................................................................22 ARTICLE 12 NOTICES...................................................................................................22 ARTICLE 13 COMPLIANCE WITH APPLICABLE LAWS............................................23 ARTICLE 14 INSURANCE................................................................................................23 ARTICLE 15 DAMAGE OR DESTRUCTION..................................................................23 Section 15.1 Damage or Destruction ...........................................................................23 Section 15.2 Damage or Destruction Occurring Toward End of Term .............................24 ARTICLE 16 UTILITIES.................................................................. .............................25 ARTICLE 17 GOVERNMENTAL PURPOSE...................................................................25 ARTICLE 18 EMINENT DOMAIN .......................................... .26 Section 18.1 Complete Permanent Taking.........................................................................26 Section 18.2 Temporary Taking .................................................. ....27 ARTICLE 19 ABSENCE OF THIRD PAR'T'Y BENEFICIARIES....................................27 ARTICLE? 20 DEFAULT AND REMEDIES......................................................................27 Section 20.1 Events of Default..........................................................................................27 Section20.2 Remedies.......................................................................................................28 Section20.3 No Waiver....................................................................................................28 Section 20.4 Remedies Cumulative...................................................................................28 Section 20.5 Unavoidable Delay........................................................................................29 Section20.6 Termination...................................................................................................30 01- 772 • ARTICLE 21 ATTORNMENT BY SUBTENANT AND NON -DISTURBANCE BYCITY.......................................................................................................30 ARTICLE 22 MORTGAGE FINANCING.........................................................................30 ARTICLE 23 F.NVIRONMENTAI. MATTERS................................................................31 ARTICLE 24 SIGNAGE; WATSON ISLAND ASSOCIATION......................................32 Section24.1 Signage..................................................................................................32 Section 24.2 Watson Island Association............................................................................32 Section24.3 Pass-Througlis...............................................................................................33 ARTICLE 25 MISCELLANEOUS .................................................................................33 Section 25.1 Section Captions...........................................................................................33 Section 25.2 Other Documents..........................................................................................33 Section25.3 Counterparts..................................................................................................33 Section 25.4 Fntire Agreement..........................................................................................33 Section25.5 Severability................................................................................................34 Section 25.6 Approvals and Consents...............................................................................34 Section25.7 Governing Laws............................................................................................34 Section25.8 Amendments.................................................................................................34 Section 25.9 Waiver of Jury Trial......................................................................................35 Section 25.10 Quiet l::njoyment.......................................................................................35 Section 25.11 Surrender of Possession................................................................................35 Section 25.12 Attorney's Fees......................................................................... ..............35 Section25.13 Recording ..................................................................................................36 Section 25.14 Estoppel Certificates ....................... ........36 ...................................................... Section25.15 Radon.............................................................................................:..............37 Section 25.16 Successors and Assigns.................................................................................37 Section 25.17 Protection From Personal Liability...............................................................37 Section 25.18 Approval by the Oversight Board.................................................................37 011" 772 INTERLOCAL AGREEMENT (MIAMI'S CHILDREN'S MUSEUM PROJECT) THIS INTERLOCAL AGREEMENT is made and executed this day of 2001, by and between the CITY OF MIAMI, a municipal corporation of the State of Florida (the "CITY"), and the MIAMI SPORTS AND EXHIBITION AUTHORITY, an independent and autonomous agency and instrumentality of the CITY (the "AUTHORITY"). STATEMENT OF BACKGROUND AND PURPOSE WHEREAS, the CITY is owner in fee simple of all that certain land located in the Greater Miami downtown area, in Miami -Dade County, Florida, known as "Watson Island"; and WHEREAS.. under the authority of §211.057, F.S., [now repea]ed; See §212.0305, F.S.) the Miami City Commission, by Ordinance No. 9662, established the AUTHORITY as an independent and autonomous agency and instrumentality of the CITY, empowered to acquire in its own name real property, and to lease, sell, and license real property, all in accordance with its stated purpose; and WHEREAS, on July 27, 2000, the Miami City Commission passed and adopted Resolution No. 00-646 authorizing and directing, the City Manager to negotiate an interlocal agreement between the CITY and the AUTHORITY, and designated the AUTHORITY as the entity to coordinate the development of a regional children's museum on Watson Island; and WHEREAS, the express purpose and intent of this Interlocal Agreement is to enable the leasing of a portion of Watson Island to a non-profit organization for the development and operation of a world-class children's museum. NOW THEREFORE, in consideration of the benefits that will accrue to the parties by virtue of this Interlocal Agreement and the respective terms and conditions contained herein, the parties hereto agree as follows. 01. _' 7 ARTICLE 1 EXHIBITS AND DEFINITIONS Section 1.1 Exhibits Attached or to be attached, as specifically indicated in this Interlocal Agreement, are the following Exhibits which form a part of this Interlocal Agreement: Exhibit A Legal Description of the Property (attached) hxhibit B Form of Sublease Agreement (attached) Exhibit C Form of Development Agreement (attached) .Exhibit D-1 Sketch of Museum Access Road (to be attached) Exhibit D-2 Sketch of Entry Boulevard (to be attached) Exhibit E Sketch of Parking Area (to be attached) Exhibit F Sketch of Green Area (to be attached) -Abibit G Sketch of Museum Parking Area (to be attacliecl) Section 1.2 Defined Terms,• Singular Plural and Gender Any word contained in the text of this Interlocal Agreement shall be read as the singular or the plural and as the masculine, feminine or neuter gender, as may be applicable in the particular context. ylore specifically, however, for the purposes of this Interlocal Agreement the following words shall have the meanings attributed to them in this Section: 1,2.1 "Applicable Laws" shall mean any law (including without limitation, any Environmental Law), enactment, statute, code, ordinance, administrative order, charter, tariff, resolution, order, rule, regulation, guideline, judgment, decree, writ, injunction, franchise, permit, certificate, license, authorization, or other direction or requirement of any governmental authority, political subdivision, or any division or department thereof, now existing or hereafter enacted, adopted, promulgated, entored, or issued. 2 0:1 772 1.2.2 "Chalk's Claim" shall mean [Law Department to provide definition]. 1.2.3 "City Commission" means the City Commission of the City of Miami. 1.2.4 "CPT" shall have the meaning given to it in Section 7.2. 1.2.5 "Deed Restrictions" shall mean those certain restrictions contained in Deed No. 19447 made by the Trustees of the Internal Improvement Fund of the State of Florida to the CITY dated February 24, 1949 and recorded in Deed Book 3130, Page 2157 of the Public Records of Miami -Dade County, Florida. 1.2.6 "Development Agreement" shall mean a Development Agreement governing the construction of the Project, in substantially the form attached as Exhibit C hereto, together with any modifications, amendments, restatements and supplements thereto as may be approved by the C1TY, 1.2.7 "Development Order" shall mean the final and effective Development Order authorized and approved by the City Commission at the hearing for the Major Use Special Permit for the Project. 1.2.8 "Directional Signage Costs" shall have the meaning given to it in Section 24.1. 1.2.9 "Entry Boulevard" shall have the meaning given to it in Section 5.4. 1.2. 10 "Environmental Laws" shall mean all applicable requirements of federal, state and local environmental, public health and safety laws, regulations, orders, permits, licenses, approvals, ordinances and directives, including but not hrnited to, all applicable requirements of: the Clean Air Act; the Clean Water Act; the Resource Conservation and Recovery Act, as amended by the Hazardous and Solid Waste Amendments of 1984; the Safe Drinking Water Act; the Comprehensive Environmental Response, Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act of 1986; the Occupational Health and Safety Act; the Toxic Substances Control Act; the Pollutant Discharge Prevention and Control Act; the Water Resources Restoration and Preservation Act; the Florida Air and Water Pollution Control Act; the Florida Safe Drinking Water Act; and the Florida Environmental Reorganization Act of 1975. 1.2.11 "Event of Default" shall have the meaning given to it in Section 20. 1. 1.2.12 "Impositions" shall mean all governmental assessments, fire fees, parking surcharges, excises, license and permit fees, levies, charges and taxes, general and special, ordinary and extraordinary, of every kind and nature whatsoever (irrespective of their nature, including, without limitation, all such charges based on the fact of a transaction, irrespective of how measured) which at any time during the term of this Interlocal Agreement may be assessed, levied, confirmed, imposed upon, or become due and payable out of or in respect of, or become a lien on, all or any part of the Property and/or the Improvements, or any fixtures, equipment or personal property placed therein or thereon, including, without limitation, ad valorem and other similar taxes on the real estate, the leasehold interest and/or personal property. 1.2.13 "Itnprovcments"shall have the meaning given to it in Section 10.2. 1.2.14 "In Kind Services" shall have the meaning given to it in Section 7.2. 1.2.15 "Interlocal Agreement Date" shall mean the date that this Interlocal Agreement is fully executed by both parties. 1.2.16 "Lease Year" shall mean a period of twelve (12) consecutive calendar months, with the first Lease Year commencing on the Possession Date 1-1] 7 "Major Alteration" shall have the meaning given to it in Section 11.3. 1.2.13 "Museum" shall mean the regional children's museum to be developed and operated on the Property by a not-for-profit entity pursuant to the terms of the Sublease and the 11 4 Ot- 72 Development Agreement. The Museum will be known as the "Miami Children's Museum" throughout the term of this Interlocal Agreement. 1.2.19 "Museum Access Road" has the meaning given to it in Section 5.4. 1.2.20 "Museum Sign" shall have the meaning ascribed to it in Section 2.4. 1 2.21 "Oversight'Board"shall have the meaning ascribed to it in Section 25.18. 1.2.22 "Party" or "Parties" (whether or not by use of the capitalized term) shall mean jointly or individually (as the context requires) each of the parties to this Interlocal Agreement and their respective successors and assigns. 1.2.23 "Permitted Alterations" shall have the meaning given to it in Section 11.3. .2.24 "Possession Date" shall mean the date that the AUTHORITY delivers possession of the Property to the Subtenant under the Sublease. 1.2.25 "Project" shall mean the development, construction, management and operation of a regional children's museum to be known as the "Miami Children's Museum" and any other related facilities and improvements at the Property, which are incidental and ancillary to the operation of a regional children's museum. 1.2.26 "Property" shall mean that certain arca located on Watson Island, which is legally described in Exhibit A attached hereto and incorporated herein. 1.2.27 "Rent" shall have the meaning ascribed to it in Article 4. 1.2.28 "Sublease" shall mean the sublease of the Property to a not-for-profit entity, in substantially the form attached as Exhibit B hereto, together with any amendments, modifications, restatements and supplements thereto as may be approved by the CITY. 1.2.29 "Subtenant" shall mean the not-for-profit entity which is the developer of the Project and the sublessee under the Sublease, its successors and assigns. 5 11:1- 7712 1.2.30 "Unavoidable Delay" shall have the meaning ascribed to it in Section 20.5. ARTICLE 2 PURPOSE OF INTERLOCAL AGREEMEN'r Section 2.1 Purpose of Interlocal Agreement Pursuant to the provisions of the Florida Interlocal Cooperation Act of 1969, the CITY and the AUTHORITY hereby enter into this Interlocal Agreement for purposes of overseeing the establishment of the Project on the Property. Section 2.2 Lease of Pro Lucy to the Authority The CITY hereby leases to the AUTHORITY, and the AUTHORITY hereby takes and leases from the CITY, the Property. The CI'T'Y shall transfer possession of the Property to the AUTHORITY on the Possession Date. Section 2.3 Title The CI'T'Y covenants and agrees that, at the Interlocal Agreement Date and through the Possession Date, (a) the CITY is and will be well seized of the Property, (b) the CITY has good title to the Property, free and clear of liens and encumbrances having priority over this Interlocal Agreement, subject only to the Deed Restrictions, the Chalk's Claim (if applicable to the Property), recorded easements and other items recorded in the public records of Miatni-Dade County, Florida, and (c) the CITY has full right and authority to enter into this Interlocal Agreement, Except as expressly provided in Sections 5.3 and Article 9, the CITY shall not encumber the Property with any reservations, covenants, easements, restrictions, liens or mortgages, or otherwise permit or suffer any impairment of the state of title to the Property, without the prior written consent of the AUTF-IORII'Y, which shall not be unreasonably withheld or delayed. The CITY shall have no liability to the AUTHORITY with respect to unrecorded utility casements which may exist as of the Effective Date and affect, or are later determined to affect the Property. Section 2.4 Pre -Possession Date Signage. The CITY hereby agrees that the Sublease shall contain a provision granting the Subtenant, at all times after the Interlocal Agreement Date, the right and license to keep and maintain a sign (the "Museum Sign") on the Property which publicizes the Property as the future home of the Miami Children's Museum (or words of like import), together with the right of ingress and egress to and from the Museum Sign for the purpose of maintaining, altering, replacing and/or removing the Museum Sign. The Museum Sign shall be installed in a location mutually acceptable to the parties, and shall be installed and maintained by the Subtenant under valid permits and in compliance with all Applicable Laws. In the event that this Interloeal Agreement is terminated for any reason, the Subtenant, at its sole cost, shall be required to immediately remove the Museum Sign from the Property and to restore any damage caused by such removal at Subtenant's sole cost. The Subtenant shall indemnify and hold the CITY and the AUTHORITY harmless from any claims, causes of action, fines, penalties or levies made against either of them by reason of the Subtenant's installation of the Museum Sign on the Property. The Museum Sign shall be subject to the CITY's approval, which shall not be unreasonably withheld, conditioned or delayed. ARTICLE 3 'rHE TERM Section 3.1 Initial Term The initial term of this Interlocal Agreement shall be for fifty (50) years commencing on the Possession Date. It is anticipated that the initial term of the Interlocal Agreement will coincide with the term of the Sublease. 01— 772 Section 3.2 Renewal Term(s) The CITY, at its sole and exclusive option, upon request of the AUTHORITY, may extend the term of this Interlocal Agreement, in any increment of years, for an additional twenty (20) years. ARTICLE 4 RENT The parties hereby agree that the rent to be paid to the CITY for the AUTHORITY'S occupancy and use of the Property shall be $2.00 per year (the "Rent"), payable in advance at the commencement of the term if the AUTHORITY so elects. The Rent shall be fixed for the term of this Interlocal Agreement. ARTICLE 5 EASEMENTS Section 5.1 Easements Granted to theAuthority Unless otherwise being provided by the CITY and Subject to Section 5.2 below, the CITY hereby agrees to grant such temporary and permanent casements in, over, upon, through and under Watson Island, as may be needed and requested by the AUTHORITY or the Subtenant for the purpose of facilitating the following: (a) Utility Easements. Installing, maintaining, repairing and replacing utility facilities such as water, gas, electric and telephone lines, and storm and sanitary sewers within the Property; and (b) Access Fasenients. Providing access for pedestrians and vehicles (including autos, service, emergency and construction) to and from the Property. KOIJ j! Section 5.2 Limitations on Easement Rights The CITY shall grant such casements as provided for in Section 5.1 above to the AUTHORITY, the Subtenant and their respective successors and assigns; provided, however, that the location of the casement is approved by the City Manager and the grant is specifically authorized by a duly adopted resolution of the City Commission. Such casements shall be granted upon the express condition that; (a) The grantee of such easement shalt carry on any construction, maintenance or repair activity with reasonable diligence and dispatch, and shall use reasonably diligent efforts to complete the same in the shortest time possible under the circumstances (force majeure excepted), and shall not carry on any construction, maintenance or repair activity in the easement area in such manner as to unreasonably interfere with the public's use and enjoyment of Watson Island; (b) Except in the event of emergency, the grantee of such easement shall not undertake any construction, replacement, maintenance or repair activity in such casement area unless prior notification is provided to the CITY and such activity is approved by the City Manager; (c) The grantee of such easement shall promptly upon the completion of any such construction, repair or maintenance activity, at no cost to the CITY, restore the surface of the easement area as nearly as possible to its former condition and appearance; (d) The grantee of such easement shall agree to indemnify the CITY from all claims and actions in law and in equity which may arise out of, or as a consequence of the negligence of the grantee, or its authorized agents, servants or employees, in maintaining, repairing and utilizing the easement area; and 9 Off,+ '772 • • (e) The grantee of such easement shall obtain such commercial general liability insurance as may be reasonably required by the CITY'S Risk Management Department. Section 5.; Easement for Development of Other Areas of Watson Island The CITY reserves the right to erect, use, maintain and repair water, sanitary sewer and storm water utilities, mechanical and electrical conduits, pipes, and cables in, to, under and through the areas along the boundaries of the Property in locations mutually agreeable to the parties to the extent that the CITY may now or hereafter deem to be necessary or appropriate for the development of other areas of Watson Island, provided that: (a) there is no material interference with the Project or the use and enjoyment of the Property by the AUTHORITY or the Subtenant; (b) such activities are conducted with reasonable diligence and dispatch and diligent efforts are used to complete same in the shortest time possible under the circumstances (force ma' .cure excepted); (c) the CITY shall promptly upon completion of any construction, repair or maintenance activity, at no cost to the AUTHORITY or Subtenant, restore the surface of the easement area as nearly as possible to its former condition and appearance; and (d) the CITY, subject to the provisions of Section 768.28, Florida Statutes, shall indemnify the AUTHORITY and Subtenant from all claims and actions in law and in equity which may arise out of, or as a consequence of the gross negligence of the CITY, or its authorized agents, servants, contractors and employees, in maintaining, repairing and utilizing the easement area. The Sublease shall require the Subtenant to acknowledge the foregoing and the CITY's intention to undertake (or cause to be undertaken) further development on Watson Island, all of which may cause some noise and other interference with the Project. The CITY agrees to use best efforts to (and to cause best efforts to be used by other parties undertaking such work) to minimize the interference and disruption by such development on the Project, and in no event shall any work related to such development um-easonably interfere with the Project. The AUTHORITY acknowledges that the leasehold interest conveyed under this Interlocal Agreement is subordinate to the CITY'S right to convey, from time to time, such casements as may be necessary for right-of-way, vehicular and pedestrian traffic across or along the boundaries of the Property in locations mutually agreeable to the parties which do not unreasonably interfere with the Project. Section 5.4 Infrastructure Improvements The AUTHORITY, at no cost to the CITY, shall cause the Subtenant (a) to design, install and construct any and all utilities required in connection with the construction and operation of the Project, including, but not limited to, all necessary connections to the existing water, sanitary sewer and stormwater drain mains, and mechanical and electrical conduits servicing the southside of Watson Island, whether or not owned by the CTfY and/or the Miami -Dade Water and Sewer Department, (b) to design and construct the Muscum access road connecting the Property to the causeway access roadway servicing the southside of Watson Island (the "Museum Access Road"), and (c) to pay up to fifty percent (50%) of the cost of design and construction of the Entry Boulevard (the "Entry Boulevard"), provided that (i) the Subtenant shall not be responsible for performing, the actual design and construction of the Entry Boulevard, and (ii) the total cost to the Subtenant for the Entry Boulevard shall not exceed $200,000. The City agrees to investigate alternative sources of funding for the Entry Boulevard. Furthermore, in the event that construction of the currently planned Aviation and Visitor's 01."- 772 0 Center south of the Property does not proceed for any reason, the City will re-evaluate the necessity of the Entry Boulevard before requiring the Subtenant to contribute to its design and construction. The Museum Access.Road and the Entry Boulevard are depicted in Exhibits -D-1 and DD2 hereto. Section 5.5 Parkin Prior to the commencement of operation of tate Museum under the Sublease, and at all times during the Term of this Interlocal Agreement (including any renewal terms), the CITY agrees to provide or cause to be provided to the AUTHORITY, for the benefit of the Subtenant, 142 unassigned parking spaces. Such parking spaces shall be located on a surface lot or in a parking garage to be constructed on the land lying immediately adjacent to and to the cast of the Property, and depicted in Exhibit I hereto. The CITY shall cause such spaces to be available to the Museum, its patrons, employees, licensees, visitors and all other invitees during normal operations of the Museum at such rates as may be negotiated by the Subtenant and the entity operating; the parking facility. Notwithstanding the foregoing, in the event that the parking facility is operated by the CITY or any department, agency or authority related to, associated with or under the jurisdiction of the CITY, the CITY agrees that the parking rates charged 1br such parking spaces shall not exceed the lesser of (i) the then prevailing; rates for municipal parking spaces, or (ii) such lower rates as may be negotiated by the Subtenant. The Sublease shall require the Subtenant to maintain not less than four (4) handicapped parking; spaces on the Property. Notwithstanding; the foregoing;, the Sublease shall provide that upon written request of the Authority given not less than thirty (30) days prior to the expiration of any review period to which the Subtenant may be entitled, the Subtenant, its sole cost and expense, shall design and 1. 12 0` 712 • 1 0 construct its 142 parking spaces if the City determines it is in the best interest of the City to require the Subtenant to construct its own parking. In such event, the Subtenant Museum shall construct its parking on the land depicted in Exhibit G to the extent such land is needed for the construction of the 142 parking spaces, and Subtenant shall have the right and license to use same as hereinabove provided free of charge. ARTICLE 6 USES Section 6.1 Use of the Property The parties to this Interlocal Agreement agree that the Property shall be used exclusively for the purpose or purposes set forth below. No use shall be made or permitted to be made of the Property, or acts done, which are in violation of any Applicable Law. The AUTHOR1Ty shall not commit, or permit any subtenant, licensee or concessionaire to commit, any waste with respect to any other improvement, building and appurtenance at any time located on the Property. The Property is to be utilized solely for the development, construction, management and operation of a regional children's museum and related facilities and improvements. The primary purpose of the Museum will be to offer participatory educational interactive exhibits and programs that are designed to stimulate understanding through involvement for infants through school-age children. The Museum's programs may include without limitation: pre-school and "parent and me" classes, after school and weekend classes and programming, field trips for public and private school students, camps (including summer camps), scout troops and other groups; environmental and outdoor programs; puppetry, theater, music and dance performances; lectures and workshops for parents and educators; visual and performing art classes; 1. multicultural and other educational festivals; and other special events customary or ancillary to a 13 0 0 children's museum. Tile Museum may also contain other educational and Museum patron - related business and services activities ancillary to or customary in the operation of a regional children's museum (such as, by way of example and not limitation, an educational gift shop, educational facilities, photo concession and restaurarnt/snackbar). Any restaurant/snack bar shall serve patrons, employees, licensees and visitors of the Museum only. The Project shall be operated at all times for the use and benefit of the public, and all of the Project's facilities and services shall be made available to the public on fair and reasonable terms and without discrimination. Any police and fire related exhibits will display the name and seal of the City of Miami. The Subtenant shall only use City of Miami police and fire services when said services are required for their operations including special events. The Property shall not be used for any purpose other than the purposes set forth herein without the prior written consent of the CITY, which consent may be withheld or conditioned in the CITY's sole discretion. This Interlocal Agreement and all rights of the AUTHORITY hereunder shall, at the option of the CITY, cease and terminate if the AU'T'HORITY uses or allows the use of the Property for any purposes not permitted herein. Section 6.2 Conditions, Riaht to Terminate Notwithstanding the fact that the parties have entered into this Interlocal Agreement, the parties hereby acknowledge that all liabilities, obligations and covenants of the CITY and the AUTHORITY under this Interlocal Agreement are contingent upon the execution and delivery of the Sublease by the parties thereto. In the event that the Sublease is not fully executed by the AUTHORITY and the Subtenant within one hundred and twenty (120) days from the Interlocal Agreement Date, either Party may terminate this Interlocal Agreement by providing written notice to the non -terminating Party. In addition to the foregoing, the Parties agree that the CITY W 0 • shall have the right to terminate this Interlocal Agreement in the event that any of the following conditions are not satisfied within the time period indicated below: (a) Within twelve (12) months after the Effective Date of the Sublease, the AUTHORITY and CITY shall have received (i) satisfactory evidence that sufficient funds have been or will be secured by the Subtenant under the Sublease for the construction of the Project (which evidence may consist of approved grants, loan commitments, letters confirming individual and/or corporate donations or sponsorships, etc.), and (ii) a commercially reasonable business plan supporting the operation of the Museum over the initial five (5) years following opening; (b) Within twelve (12) months after the Effective Date of the Sublease, the Subtenant shall have commenced construction of the Project, subject to Unavoidable Delay; and (c) Within thirty (30) months after construction of the Project has commenced, the Project shall be substantially completed in accordance with the Development Order, subject to Unavoidable Delay. The issuance of a temporary certificate of occupancy shall constitute sufficient evidence that the Project has been substantially completed in accordance with the Development Order. In the event that any of the foregoing conditions subsequent are not satisfied within the time period specified, subject to Unavoidable Delay, the CITY shall have the right to terminate this Interlocal Agreement by written notice to the AUTHORITY delivered pursuant to the notice provision contained herein at any time after the expiration of said time period but prior to the satisfaction of the condition in question. In the event that the condition is satisfied prior to the CITY'S termination of this Interlocal Agreement, the CITY'S right to terminate with respect to 15 I that particular condition shall cease. Upon termination the parties shall be released from all further obligations hereunder. Section 6.3 Termination of Sublease/Development A reement Notwithstanding the fact that the parties have entered into this Interlocal Agreement, the parties hereby acknowledge that all liabilities, obligations and covenants of the CITY and the AUTHORITY hereunder are contingent upon the satisfaction of the conditions set forth in Article II (entitled "Conditions Subsequent") of the Development Agreement and Section 2.6 (entitled "Condition Precedent; Conditions Subsequent; Right to Terminate") of the Sublease. In the event that the Subtenant terminates the Development Agreement and the Sublease for any reason, then either the CITY or the AUTHORITY may subsequently terminate this Interlocal Agreement. Furthermore, in the event that the Sublease is terminated at any time for any other reason, then either the CITY or the AUTHORITY may subsequently terminate this Interlocal Agreement. ARTICLE, 7 IMPOSITIONS, IN KIND SERVICES Section 7,1 hnpositions The AUTHORITY shall include in the Sublease an affirmative obligation on the part of the Subtenant to pay and discharge, as they become due, any and all Impositions, before any fine, penalty, interest or cost may be added to such Imposition. The Subtenant, at its sole cost and expense, may apply for a total or partial tax exemption if eligible. Section 7.2 In Kind Services The AUTHORITY agrees that the Sublease shall require the Subtenant to provide to the CITY "in kind" services each year.of the Sublease, having a dollar value of not less than $75,000 per year ("In Kind Service' -s"), The In Kind Services to be provided by the Subtenant Irl �1- 72 0 • shall consist of (i) a year round discount of fifty percent (50%) off the standard entrance fee to the Museum for City of Miami residents, (ii) special programs to be established in cooperation with and monitored by the City of Miami Parks and Recreation Department which may include scholarships for field trips, reduced admission charges for families, summer, fall, winter and spring camps, or other programming and/or activities of a similar nature, and (iii) use of the Subtenant's auditorium for a maximum of six (6) CITY or CITY -sponsored events. The Subtenant's obligation to provide In Kind Services tinder the Sublease shall commence on the date which the Subtenant opens its doors to the public, but shall be prorated on a per diem basis for the year in which the Museum opens based on the number of days remaining in such first year. With respect to item (iii), it is agreed that: (a) the events will be held on mutually agreeable dates and times, provided that the Subtenant shall agree tinder the Sublease to use commercially reasonable efforts to accommodate the CITY's selected dates, (b) the CITY will give the Subtenant no more than six (6) months, and no less than ten (10) days prior written notice of the proposed date and time for the event(s), and (c) the CITY shall be responsible for any cost not normally included in the standard rental of the auditorium (by way of example and not limitation, if the cost of security and post -event clean-up are not included in the normal rental fee, the City will be responsible for providing and paying for them separately). The Sublease shall provide that the amount of In Kind Services to be provided shall be increased on the first day of each Lease Year by any increase during the prior year in the index known as "United States Bureau of Labor Statistics, Consumer Price Index, utilizing the "Consumer Price Index for All Items, Miami - Ft. Lauderdale, Florida", Base Year 1982.84=100 (hereinafter the "CPI"). In no event shall any CPI adjustment result in an amount of In Kind Services per year which is less than seventy-five thousand dollars ($75,000). 17 (01- 'iµ11 • A Notwithstanding the .above, the Subtenant's obligation to pay all ad valorem taxes shall not be limited to the amount of In Kind Services being provided and Subtenant shall be obligated to pay the entire ad valorem tax even if same exceeds the amount of In Kind Services required. ARTICLE 8 CITY'S RIGHTOF ENTRY The AUTHORITY shall permit the CITY and its agents, representatives, employees, and/or designees to enter into the Project and all other areas of the Property, at all reasonable times upon advance written notice for any reasonable purpose; provided, however, that the CITY'S rights under this Section shall not unreasonably interfere with the construction or operation of the Project or the performance of the AUTHORITY'S obligations under this Interlocal Agreement. ARTICLE 9 ASSIGNMENTS AND O'rHER TRANSFERS The CTI'Y reserves the right to sell or mortgage the Property, and to transfer or delegate any of its duties or obligations under this Interlocal Agreement, as may be permitted by law, subject to the AUTHORITY'S consent, which consent may not be withheld or unreasonably delayed. Any such sale, transfer or mortgage shall be expressly subject to this Interlocal Agreement and the Sublease, and the purchaser, transferee or mortgagee shall acknowledge in writing that the Property is subject to this Interlocal Agreement and Sublease, and, with respect to a purchaser or other transferee, that it assumes all the obligations and liabilities of the CITY hereunder related to the time period from and after the transfer. If requested by the AUTHORITY, the CITY will obtain a non -disturbance agreement from its mortgagee providing that in the event of a foreclosure of the CITY'S interest in the Property, the possession of the Property by the AUTHORITY and/or the Subtenant shall not be disturbed so long as such parties • • are not in default of this interlocal Agreement or the Sublease (as applicable) beyond applicable notice and cure periods. Notwithstanding anything herein to the contrary, the CITY agrees that it shall not sell, assign, mortgage or otherwise transfer its interest in the Property (i) at any time prior to the completion of the initial construction of the Project, or (ii) if such sale, assignment, mortgage or other transfer would cause a violation of the Deed Restrictions. Date. ARTICLE 10 POSSESSION AND CONSTRUC'T'ION OF FACILITIES Section '10.1 Delivery of Possession of the Property The CITY shall deliver possession ofthe Property to the AUTI{ORITY on the Possession Section 10.2 The Improvements Pursuant to the conditions of the Sublease and the Development Agreement, and in the manner provided by law, the AUTHORITY shall cause the Subtenant to commence and complete the development and construction of the Project on the Property. All improvements constructed upon or installed at the Property, including the children's museum building and administrative offices related thereto, parking areas, walkways, driveways, and public facilities appurtenant to the children's museum, shall be referred to in this Interlocal Agreement as the "Improvements Section 10.3 Manner of Construction of Improvements The construction of the Improvements on the Property shall be in accordance with all Applicable Laws and, with respect to the Project, in accordance with the plans, specifications and other construction documents therefor, all of which shall be approved in the manner set forth in the Development Agreement and the Development Order. Section 10.4 Title to the Improvements 19 Of- 772 Prior to the expiration or termination of this Interlocal Agreement, title to the Improvements shall not vest in the CITY or any other person or entity, but shall be held by the Subtenant. During the term of this. Interlocal Agreement, the Subtenant shall be entitled to claim depreciation on the Improvements for all taxation purposes. Upon the expiration or termination of this Interlocal Agreement (provided that the Sublease has also expired), title to the Improvements shall automatically vest in the CITY without the need for any further instrument of conveyance. Section 10.5 CITY Property to Remain Free of Liens The AUTHORITY shall have no power or right to, and shall not in any way, encumber the CITY'S fee simple interest in the Property. if any mechanics' liens shall at any time be filed against the CITY'S interest in the Property, as a result of the actions of the AUTHORITY or the Subtenant (or any of its subtenants, licensees, or concessionaires), the AUTHORITY shall promptly take and diligently pursue a cause of action to have the same discharged or to contest in good faith the amount or validity thereof, and if unsuccessful in such contest, to have the same discharged. ARTICLE I 1 MAINTENANCE, REPAIR AND ALTERATIONS Section l 1.1 Maintenance of Greenspace Area The Sublease shall require the Subtenant to maintain the landscaping and green areas located within the subleased premises in such condition as may be reasonably required by the AUTHORITY, and to comply with any future landscaping guidelines for Watson Island, so long as such guidelines do not substantially increase the cost of maintenance to the Subtenant. Additionally, the Sublease shall require the Subtenant to maintain the area depicted in Exhibit F, if requested by the CITY, in such condition as may be reasonably requested by the CITY, so 20 1 r 7 rs+ long as the cost of maintenance of such area does not impose an unreasonable financial burden on the Subtenant. The Subtenant shall not be required to landscape the area depicted in Exhibit F. If the Watson Island Association is established as contemplated in Section 24.2 and the responsibilities of the Watson Island Association include maintenance of common areas on Watson Island, then the responsibility for the maintenance of such greenspace area shall be imposed on said association in lieu of the Subtenant. Section 11.2 Repair of the Improvements. The AUTHORITY shall require the Subtenant, at the Subtenant's sole cost and expense, to maintain in good, clean, safe and orderly condition and repair the Property and the Improvements. Subject to Article 15 hereof, the AUTHORITY shall further require the Subtenant, at Subtenant's sole cost and expense, to promptly make to the Improvements all necessary repairs, renewals and replacements, interior and exterior, structural and nonstructural, whether made necessary or caused by fire or other casualty, or by ordinary wear and tear. All repairs, renewals and replacements shall be of good quality sufficient for the proper maintenance and operation of the Improvements and shall be constructed and installed in compliance with all Applicable Laws. The Subtenant shall not commit, or suffer to be committed, any waste in or upon the Property, which, in CI"TY's sole but reasonable opinion, detracts from the appearance of the Property. All maintenance, repairs or replacements shall be performed to the reasonable satisfaction of CITY. Nothing contained in this Interlocal Agreement shall impose on the CITY the obligation to make any repairs or expend any monies for the maintenance of the Property, or the renewal, replacement or repair of the Improvements. Section 11.3 Alterations. 'rhe AUTI•iORITY shall not make or permit the Subtenant to make any structural alterations or alterations to the exterior of the Museum, alterations to the electrical, mechanical or plumbing systems servicing the Museum which require a permit, or any expansion to the restaurant or cafd servicing the Museum (each a "Major Alteration") without first obtaining the written consent of the CITY, which consent shall not be unreasonably withheld or conditioned and shall be granted or denied within twenty (2 1) business days of the AUTHORITY'S provision of all documents concerning the Major Alteration reasonably required by the CITY. Failure of the CITY to respond within said 21 -day period shall be deemed approval. The AUTHORITY shall be permitted or may permit the Subtenant to perform any other alterations to the Improvements that are not Major Alterations, including interior improvements and exhibits (collectively "Permitted Alterations"), without the CITY'S consent. Any construction undertaken in or to the Improvements shall be performed in accordance with this Article and other provisions of this Interlocal Agreement including compliance with all Applicable 1`,aws. ARTICLE 12 NOTICES All notices, demands, or other writings required or allowed in this Interlocal Agreement must be in writing and shall be delivered or sent, with copies indicated, by personal delivery, certified mail or overnight delivery service to the parties as follows (or at such other address as a party shall specify by notice given pursuant to this Section): TO THF: CITY: CITY OF MIAMI ATTN: City Manager 444 S.W. 2"d Avenue, 10`x' Floor Miami, Florida 33130 22 01- 772 • WITH COPIES TO: • CITY ATTORNEY City of Miami Miami Riverside Building, 9th Floor 444 S.W. 2nd Avenue Miami, Florida 33130 OFFICE OF ASSET MANAGEMENT City of Miami 444 S.W. 2"d Avenue, 3rd Floor Miami, Florida 33130 TO THE AUTHORITY: MIAMI SPORTS AND EXHIBITION AUTHORITY City of Miami ARTICLE 13 COMPLIANCE WITH APPLICABLE LAWS During the term of this Interlocal Agreement, the parties shall comply with all Applicable Laws. The AUTHORI'T'Y shall require the Subtenant to comply with all Applicable Laws and shall require the Subtenant to obtain and maintain, at no cost to the CITY, all necessary permits and licenses that are required in connection with the operation of and use of the Property. ARTICLE 14 INSURANCE: The terms of the Sublease shall require the Subtenant to comply with the insurance requirements of the CITY'S Risk Management Department. The insurance requirements will be set forth with specificity in the Sublease. ARTICLE: 15 DAMAGE OR DESTRUCTION Section 15.1 Damage or Destruction Except as provided in 15.2 below, if the Improvements are damaged or otherwise destroyed and the Subtenant elects to restore same under the terms of the Sublease, this Interlocal 23 o1= 172 • Agreement shall continue in full force and effect. Any restoration of the Improvements shall be in accordance with and in compliance with all Applicable Laws and, if the plans are materially different from those used originally to construct the Project, the plans must be approved in accordance with the plan approval procedures under the Development Agreement for the original construction of the Project. All such restoration shall be performed by the Subtenant in accordance with the requirements set forth in the Sublease. The CITY shall not be liable for any inconvenience or annoyance to the AUTHORITY or Subtenant or injury to the Subtenant's operations resulting in any way from such casualty damage or repair thereof, unless caused by the gross negligence or willful misconduct of the CITY, its agents, representatives and employees. Section 15.2 Damage or Destruction Occurring Toward End of Term If the Project is damaged or destroyed, and either (i) such damage or destruction occurs during the last four (4) years of the term of this Interlocal Agreement and more than 50% of the gross [door arca of Improvements is damaged, or (ii) the Subtenant does not elect to restore the Improvements under the Sublease, then, either party may elect to terminate this Interlocal Agreement by written notice to the other within ninety (90) days after the occurrence of such damage or destruction, in which case the CITY shall be entitled to receive all of the insurance proceeds, subject to any rights of any Leasehold Mortgagee (as defined in the Sublease). The rights of Leasehold Mortgagees with respect to insurance proceeds shall be paramount to any other party. Upon any termination of this Interlocal Agreement under any of the provisions of this Section 15.2, the AUTHORITY and the CITY shall each be released thereby from any further obligations hereunder accruing after the effective date of such termination, except that such release shall not apply to any stuns then accrued or due to the CITY or to the AUTHORITY under the Section of this Agreement entitled "Surrender of Possession" or to any obligation or provisions otherwise surviving or intended to survive the tennination of this Agreement. ARTICLE if UTILITIES The AUTHORITY shall cause to be paid all charges for consumption of water, gas, heat, light, power, telephone service and other public utilities of every kind furnished to the Property throughout the Interlocal Agreement term, and all other costs and expenses of every kind whatsoever of or in connection with the installation, use, operation, and maintenance of utilities at the Property. ARTICLE 17 GOVERNMEWAL PURPOSE The conveyance of the leasehold interest in the Property under this Interlocal Agreement, and the parties' activities pertaining to planning, establishment, development, construction, improvement, maintenance and operation of the Project, are public and governmental functions exercised for a public purpose. The AUTHORITY acknowledges that (i) the Deed Restrictions prohibit the use of the Property and other portions of Watson Island by private persons and entities ibr private use or purpose, and require that such lands be used solely for public purposes, and (ii) a violation of the Deed Restrictions will result in the forfeiture of title to the Property to the State of Florida. Accordingly, the AUTHORITY covenants and agrees to comply with the Deed Restrictions and to include a similar covenant to comply with the Deed Restrictions in the Sublease and the Development Agreement. The AUTHORITY further agrees that a violation of the Deed Restrictions by the AUTHORITY hereunder or by the Subtenant under the Sublease shall result in the automatic termination of this Interlocal Agreement and the Sublease without 25 0 1. J WPI the need for notice of any kind to any party. In the event of termination of this Interlocal Agreement under any of the provisions of this Article 17, the AUTHORITY and the CITY shall each be released thereby from any further obligations hereunder accruing after the commencement of such termination, except that such release shall not apply to any sums then accrued or due to the CITY, or to the AUTHORITY obligations under the Section of this Agreement entitled "Surrender of Possession," or to any obligation or provision otherwise surviving or intended to survive, the termination of this Agreement. ARTICLE 18 EMINENT DOMAIN Section 18.1 Permanent Taking. If the whole of Property, or a material portion thereof is taken under power of eminent domain or sold, transferred or conveyed in lieu thereof, this Interlocal Agreement shall terminate and become null and void on the date the Property is taken by the condemning authority. Upon said termination, the parties shall be relieved of al l duties, obligations and liabilities arising under this Interlocal Agreement from and after the date of termination. In the event that less than a material portion shall be taken by condemnation or deed in lieu thereof and the Subtenant has not terminated the Sublease under the terms thereof, then this Interlocal Agreement and all the covenants, conditions and provisions hereunder shall be and remain in full force and effect as to all of the Property not so taken. The award or awards of damages allowed the parties shall be paid as follows: First: There shall be paid all expenses, if any, including; reasonable attorneys' fees, incurred by the CITY and the AUTHORITY in such condemnation suit or conveyance; Second: The CI'T'Y and the AUTHORITY shall be paid such portions of the award or awards which are allocable to and represented by the 26 01— 772 value of their respective interests in the Property as found by the court or jury in its condemnation award. Section 18.2 Temporary Taking In the event of temporary taking of all or any portion of the Property for a period of thirty (30) days or less, then this Agreement shall not terminate, unless the Sublease is terminated. ARTICLE. 19 ABSENCE OF THIRD PARTY BENEFICIARIES Nothing in this Interlocal Agreement, express or implied, is intended to (a) confer upon any entity or person other than the parties any rights or remedies under or by reason of this Interlocal Agreement as a third -party beneficiary, or otherwise; or (b) authorize anyone not a party to this Interlocal Agreement to maintain an action pursuant to or based upon this Interlocal Agreement. ARTICLE 20 DEFAULT, REMEDIES AND TERMINATION Section 20.1 Events of Default The occurrence of any one or more of the following events is deemed an "Event of Default": (a) II' the AUTHORITY defaults in the due and punctual payment of any installment of any Rent when due and payable in accordance with this Interlocal Agreement, and such default continues for more than thirty (30) days after written notice that the stun is due; or (b) If either party defaults in the due performance or observance of any covenant or condition or provision under this Interlocal Agreement, other than the payment of Rent, and such default continues for more than thirty (30) days after written notice of the default from the non -defaulting party, provided that if such default is curable but cannot be cured within thirty (30) days, the defaulting party shall have a reasonable period of time (not to exceed one hundred eighty (180) days) to cure such default so long as the defaulting party commences the cure within thirty (30) days and diligently prosecutes same to completion; or (c) If the Subtenant defaults under the Sublease and said default is not cured within the applicable cure'period Section 20.2 Remedies If any Event of Default occurs, the party not at fault shall have the right to terminate this Interlocal Agreement upon fifteen (15) days written notice; provided, however, that in the case of a default under Section 20.1 (c) above, this Interlocal Agreement will be terminated only if the Sublease is terminated simultaneously. Section 20.3 No Waiver The waiver (either expressed or implied by law) by either party of any default of any term, condition or covenant herein contained shall not be a waiver of any subsequent default of the same or any other term, condition or covenant herein contained. No waiver made by either patty with respect to performance, or manner or time thereof, of any obligation of the other party or any condition to its own obligation under this Interlocal Agreement shall be considered a waiver of any rights of the party making the waiver with respect to the particular obligations of the other party, or conditions to its own obligation, beyond those expressly waived, and to the extent thereof, or a waiver in regard to any other rights of the party making the waiver or in regard to any obligation of the other party. Section 20.4 Remedies Cumulative No remedy conferred upon or reserved to the CITY or the AUTHORITY shall be considered exclusive of any other remedy, but shall be cumulative and shall be in addition to every other remedy given under this Interlocal Agreement or existing at law or in equity or by statute; and every power and remedy given by this Interlocal Agreement to the CITY or the AUTHORITY may be exercised from time to time and as often as occasion may arise or as may be deemed expedient by the CITY or the AUTHORITY. No delay or omission of CITY or AUTHORITY to exercise any right or power arising from any default shall impair any right or power, nor shall it be construed to be a waiver of any default or any acquiescence in it. Section 20.5 Unavoidable Delay For the purpose of any of the provisions of this Interlocal Agreement, neither the CITY (including the City Manager) nor the AUTHORITY, as the case may be, shall be considered in breach of or in default in any of its obligations wider this Interlocal Agreement in the event of unavoidable delay in the performance of any such obligations due to strikes, lockouts, acts of God, inability to obtain labor or materials, or to settle insurance claims due to governmental restrictions, enemy action, civil, commotion, fire, hurricane, flood, casualty, or other similar causes beyond the reasonable control of a party (collectively, "Unavoidable Delay"), but not including such party's insolvency of financial condition, it being the purpose and intent of this Section that in the event of the occurrence of any such Unavoidable Delay the time or times for the performance of the covenants and provisions of this Interlocal Agreement shall be extended for the period of Unavoidable Delay; provided, however, that the party seeking the benefit of the provisions of this Section shall, within thirty (30) days after such party shall have become aware of such Unavoidable Delay, give written notice to the other party thereof of the cause or causes thereof and the time anticipated to be delayed. 01 - 7T2, 29 1 0 • Section 20.6 Termination In the event that this Interlocal Agreement is tenninated by the City for any reason expressly permitted hereunder, it is understood and agreed that the City shall have no liability whatsoever, financial or otherwise, to the AUTHORITY for any matter whatsoever relating to the termination or the use'of the Property. ARTICLE 21 ATTORNMENT BY SUBTENANT AND NON -DISTURBANCE BY CITY The cancellation or tennination of this Interlocal Agreement by the parties hereto shall not interfere with any rights of the Subtenant provided that: (i) the Sublease has been approved by the CITY; (ii) the Subtenant is not in default beyond applicable notice and cure periods under the Sublease; and (iii) the Subtenant enters into an agreement with the CITY whereby it attorns to the CITY. In such event, the CITY shall recognize and not disturb the Subtenant under the terms of the Sublease. This non -disturbance agreement shall be self -operative and no further agreement between the CITY and the Subtenant shall be necessary to effect the same; however, the CITY agrees from time to time, promptly upon request of the Subtenant, that it will enter into agreements with the Subtenant confirming such non -disturbance agreement. The foregoing non- disturbance provisions shall not apply in the event this Interlocal Agreement is terminated under Article 16 as a result of a violation of the Deed Restrictions, whereupon the Sublease shall terminate on the same date the Interlocal Agreement. terminates, ARTICLE 22 MORTGAGE FINANCING Provided that an Event of Default has not occurred and is not continuing, the AUTHORITY shall have the right, subject to the City Commission's approval, at any time and from time to time to encumber the leasehold estate created by this Interlocal Agreement and any 30 V i 014' 712 0 • Improvements by mortgage or other security instrument. In addition, the AUTHORITY may permit the Subtenant to mortgage its leasehold interest to a Leasehold Mortgagee approved by the CITY. AR'T'ICLE 23 ENVIRONMENTAL MATTERS The AUTHORITY shall include in the Sublease (and require that it include in any subleases, licenses, concession agreements and management agreements) provisions whereby the Subtenant and such third parties shall warrant and represent, and shall indemnify and hold harmless the CITY and the AUTHORITY for the breach of the covenants, that: (a) They will not unlawfully use or employ the Property or any of the facilities thereon to handle, transport, store, treat, or dispose of any hazardous wastes or substances, on the Property; (b) They will not knowingly conduct any activity on the Property in violation of any applicable Envirotunental Laws; and (c) They will conduct any activity on, or relating to the Property, and the operations of the Project in full compliance with all Fnvironmental Laws and all terms, conditions and requirements of any and all permits, licenses, consents, approvals, and authorizations of any federal, state, or local regulatory agencies or authorities, 'The foregoing provisions, as contained herein and in the corresponding documents, shall survive the termination of this Agreement and of the documents in which they are contained. 31 ARTICLE 24 SIGNAGE: WATSON ISLAND ASSOCIATION Section 24.1 Signage The AUTHORITY understands that the CITY desires to provide a neat And consistent look to all directional signs placed on Watson Island through an island -wide signage system. Accordingly, the CITY will, at the CITY's expense, develop a pathfinder/directional-type signage system, directing visitors to the various sites on Watson Island, by a graphic design firm selected by the CITY. The AUTHORITY agrees to pay, or to cause Subtenant to pay, its pro rata share of the cost of fabrication and installation of the CITY's signage system for Watson Island (the "Directional Signage Costs") attributable to the Museum. Section 24.2 Watson Island Association The AUTHORITY acknowledges, and shall disclose to the Subtenant under the Sublease, the City's intent to form an association that will have, as its primary purpose, the promotion and marketing of Watson Island, the maintenance and administration of common areas, and the enforcement of all existing and future rules and regulation affecting the island, including, by way of example, landscaping and directional signage guidelines. The AUTHORITY shall require the Subtenant to participate in, and contribute financially to the establishment and operation of, the Watson Island Association, so long as the association does not impose an unreasonable financial burden on the Museum. The costs passed through the Watson Island Association shall not include the cost of installation of infrastructure (i,e. roadways, utilities and the like) on Watson Island. The amount of Subtenant's contribution, and that of all other occupants or tenants in Watson Island, shall be established by the City, in an equitable, non -discriminating and reasonable manner, and tite Subtenant's contribution shall not include costs and expenses associated with, or relating to, or that would have been assessed against, the tenants of portions 32 of Watson Island (or their respective parcels), not participating in the Watson Island Association. The CITY agrees to disclose in writing to the Subtenant the manner in which it has established the Subtenant's contribution and the basis therefor. Section 24.3 Pass-Throughs The CITY agrees that it shall not double charge for any item of expense passed through to the AUTHORITY under the provisions of this Interlocal Agreement. ARTICLE ZS MISCELLANEOUS Section 25.1 Section Captions The captions appearing in this Interlocal Agreement are for convenience only and shall in no way define, amplify, limit or describe the scope or intent of this Interlocal Agreement or any part thereof. Section 25.2 Other Documents 'rhe CITY and the AUTHORITY shall take all such actions and execute all such documents which may be reasonably necessary to carry out the purposes of this [nterlocal Agreement, whether or not specifically provided for in this Interlocal Agreement. Section 25.3 Counterparts This Interlocal Agreement may be executed and delivered in two counterparts, each of which shall be deemed to be an original and both of which, taken together, shall be deemed to be one Interlocal Agreement. Section 25.4 Entire Agreement This Interlocal Agreement, and the documents which are Exhibits to this Interlocal Agreement, contain the sole and entire agreements entered into by the parties with respect to 1. 33 €J1- 772 their subject matter, and supersede any and all other prior written or oral agreements between them with respect to such subject matter. Section 2.5.5 Severability If any term or provision of this Interfocal Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid oi• unenforceable, the remainder of this Interlocal Agreement or the application of such term or provision to the persons or circumstance other than those as to which it is hold invalid or unenforceable, shall not be affected thereby, and each term and provision of this Interlocal Agreement shall be valid and be enforced to the fullest extent permitted by law. Section 25.6 Approvals and Consents Wherever in this Interlocal Agreement the approval or consent of any party is required, it is understood and agreed that such approval or consent will not be unreasonably withheld or delayed, unless the context specifically indicates otherwise. Wherever in this Interlocal Agreement the approval or consent of the CITY is required, the written approval or consent of the matter in question by the City Manager shall satisfy the requirements for approval or consent of the CITY for all purposes. Section 25.7 Governing Laws 'chis Interlocal Agreement shall be governed by the laws of the State of Florida. This Interlocal Agreement is subject to and shall be interpreted to e11ectuate its compliance with the Charter of the CITY. Section 25.8 Amendments No amendment may be made to this Interlocal Agreement unless authorized by the City Commission and the AUTHORITY. 34 01- 772 • • Section 25.9 Waiver of Jury 'Trial The parties hereby knowingly, irrevocable, voluntarily and intentionally waive any right either may have to a trial by jury in respect of any action, proceeding or counterclaim based on this lease, or arising out of, under or in connection with this Interlocal Agreement or any amendment or modification of this Interlocal Agreement, or any other agreement executed by and between the parties in connection with this Interlocal Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement for the CITY and AUTHORITY entering into the subject transaction. Section 25.1 U Quiet 1"niovment If the AUTHORITY pays the Rents and other amounts due under this Interlocal Agreement and observes and performs all the terms, covenants and conditions hereof, the AUTHORITY shalt peaceably and quietly hold and enjoy the Property for the Interlocal Agreement term, without interruption by the CITY, subject to the terms and conditions of this Interlocal Agreement, Section 25.1 1 Surrender of Possession Upon the expiration or earlier termination of the Interlocal Agreement pursuant to the provisions hereof, the AUTHORITY shall deliver to the CITY possession of the Property in good repair and condition, reasonable wear and tear excepted. Section 25.12 Attorney's Fees In the event that legal action is taken by either party to enforce any of the provisions of this Interlocal Agreement, each party shall be responsible for its own expenses, including attorney's fees, in connection with any such action. 35'�- f�� • 0 Section 25.13 Recording A memorandum or short form of this Interlocal Agreement in form mutually satisfactory to the parties shall be recorded among the Official Records of Miami -Dade County, Florida, and either party may cause any modification or addition to this Interlocal Agreement or any ancillary document relevant to this transaction to be so recorded. Section 25.14 Estoppel Certificates The CITY and the AUTHORITY shall, at any time and from time to time, within fifteen (15) days after written request by the other, execute, acknowledge and deliver to the party which has requested the same, a certificate stating that: (i) this Interlocal Agreement is in full force and effect and has not been modified, supplemented or amended in any way, or, if there have been modifications, the Interlocal Agreement is in full force and effect as modified, identifying such modification agreement, and if this Interlocal Agreement is not in full force and effect, the certificate shall so state the reasons why; (ii) this Interlocal Agreement as modified represents the entire agreement between the parties as to this leasing or, if it does not, the certificate shall so state why; (iii) the dates on which the term of this Interlocal Agreement commenced and is scheduled to terminate; (iv) all conditions under this Interlocal Agreement to be performed by the CITY or the AUTHORITY, as the case may be, have been satisfied and, as of the date of such certificate, there are no existing defenses or offsets which the CI`T'Y or the AUTHORITY, as the case may be, has against the enforcement of this Interlocal Agreement by the other party, or, if such conditions have not been satisfied or if there are any defenses or offsets, the certificate shall so state; and (v) the rental due and payable for the year in which such certificate is delivered has been paid in full, or, if it has not been paid, the certificate shall so state. The party 36 Oi " 772 to whom any such certificate shall issued may rely on the matters therein set forth and thereafter the party issuing the same shall be estopped from denying the veracity and accuracy of the same. Section 25.15 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 time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon testing may be obtained from your county Public Health Unit. Section 404.056(8), Florida Statutes (1999). Section 25.16 Successors and Assi ns Except to the extent limited elsewhere in this Interlocal Agreement, all of the covenants, conditions and obligations contained in this Interlocal Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the CITY and the AUTHORITY. Section 25.17 Protection from Personal Liability No obligation or liability of any kind or nature whatsoever incurred by or asserted against the ALJTHORITY or the CITY in connection with this Interlocal Agreement, or arising out of the parties' actions in connection therewith, shall in any manner whatsoever be a personal obligation or liability of any member of the AUTHORITY or any elected or appointed official of the CITY. Section 25.18 Approval by the Oversight Board, The State of Florida has appointed an Emergency Financial Oversight Board (the "Oversight Board") which is empowered to review and approve all pending City of Miami contracts. As a result, contracts shall not be binding on the CITY until such time as they have been approved by the Oversight Board. Attestation of this Interlocal Agreement by the CITY Clerk shall constitute evidence of approval by the Oversight Board. le 37 [remainder of this page intentionally left blank] 38 0 • IN WITNESS WHEREOF, the parties have executed this Interlocal Agreement at Miami, Florida on the day and year first above written. Signed, sealed and delivered in the presence of: CITY OF MIAMI, a municipal corporation of the State of Florida By: Print Name: Carlos A. Gimenez City Manager Print Name: ATTEST: By: Print Name: Walter J. Foeman City Clerk Print Name: Print Name: Print Name: Print Name: Print Name: APPROVED AS TO INSURANCE Rf:QUIREMENTS By: _ Risk Management Department 39 MIAMI SPORTS AND EXHIBITION AUTHORITY By: ATTEST: By: Name: Title: APPROVED AS TO FORM AND CORRECTNESS: By: _ Alejandro Vilarello City Attorney o t - wr 'IV 9 • • EXHIBIT A LEGAL D]SCRIPTION (CHILDREN MUSEUM) COMMENCE AT A POINT SHOWN MARKED BY AN 5/8" DIAMETER IRON ROD AND CAP STAMPED F.D.O.T.'SHOWN AS P. T. STA. 25+50 ON THE "OFFICIAL MAP OF LOCATION AND SURVEY OF A PORTION OF SECTION 8706, DESIGNATED AS PART OF STATE ROAD A -1-A IN DADE COUNTY, FLORIDA", PREPARED BY THE STATE ROAD DEPARTMENT OF THE STATE OF FLORIDA, AS RECORDED IN MAP BOOK 56 AT PAGE 71 OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA SAID POINT BEING THE POINT OF TANGENCY OF THE CENTER LINE OF THE GENERAL DOUGLAS MACARTHUR CAUSEWAY RUNNING EASTERLY AND SOUTH EASTERLY FROM THE WESTERLY LIMITS (WEST BRIDGE) OF WATSON ISLAND AS SHOWN ON SHEET 3 OF 'THE STATE ROAD DEPARTMENT RIGHT-OF-WAY MAP SECTION NO. (8706-112) 87060-2117, REVISED MARCH 25, 1959, THENCE SOUTH 59' 51' 26" ALONG A RADIAL LINE A DISTANCE OF 252.79 FEET TO THE POINT OF BEGINNING; THENCE SOUTH 26' 22' 36" EAST ALONG PARCEL 102 AS SHOWN ON A FLORIDA DEPARTMENT OF TRANSPORTATION PARCEL SKETCH OF SECTION 87060-2576 A DISTANCE OF 33.52' FEET; THENCE SOUTH 17' 58' 22" EAST ALONG SAID SOUTHWESTERLY RIGHT OF WAY LINE AND PARCEL 102 A DISTANCE OF 133.68 FEET; THENCE SOUTH 54' 07' 37" WEST DEPARTING SAID SOUTHWESTERLY RIGHT OF WAY LINE A DISTANCE OF 296.86 FEET; THENCE NORTH 34' 49' 14" WEST A DISTANCE OF 184.88 FEET; THENCE SOUTH 54' 07' 37" WEST A DISTANCE OF 116.' FEET; THENCE NORTH 35' 52' 23" WEST A DISTANCE OF 88.34 FEET; THENCE NORTH 54' 07' 37" EAST A DISTANCE OF 475.16 FEET TO THE SAID SOUTHWESTERLY RIGHT OF WAY LINE OF THE DOUGLAS MACARTHUR CAUSEWAY; THENCE SOUTH 26' 22' 36" EAST ALONG SAID SOUTHWESTERLY RIGHT OF WAY LINE A DISTANCE OF 114.49 FEET TO THE POINT OF BEGINNING.. CONTAINING 2.32 ACRES OF LAND MORE OR LESS. 01 7 v 112 m SUBLEASE AGREEMENT ('MIAMI CHILDREN'S MUSEUM PROJECT) BETWEEN THE MIAMI SPORTS AND EXHIBITION AUTHORITY AND MIAMI CHILDREN'S MUSEUM, INC. DATED , 2001 EXHIBIT B • TABLE OF CONTENTS Page ARTICLE I EXHIBITS AND DEFINITIONS.......................................:............................1 Section 1.1 Defined Terms; Singular, Plural and Gender...............................................1 Section 1.2 Incorporation of Exhibits.............................................................................5 ARTICLE II DESCRIPTION; TERM; PARKING...............................................................6 Section 2.1 Description of Subleased Premises..............................................................6 Section2.2 Term of Sublease.........................................................................................6 Section2.3 Easements...............................................................................................6 Section 2.4 Easement for Development of Other Areas of Watson Island.....................6 Section2.5 Parking.......................................................................................................7 Section 2.6 Conditions; Right to Terminate...................................................................7 Section 2.7 Pre -Possession Date Signage.......................................................................9 ARTIC[J III PURPOSE OF USE AND OCCUPANCY......................................................9 Section 3.1 Use of Subleased Premises..........................................................................9 Section 3.2 Continuous Duty to Operate......................................................................10 Section 3.3 Deed Restrictions.......................................................................................10 ARTICLE IV INFRASTRUCTURE; SERVICES; REPAIRS.............................................10 Section 4.1 Infrastructure Improvements ............ .......... .................... ................10 Section4.2 Utilities.......................................................................................................11 Section4.3 Services...................................................................................................11 Section4.4 Repairs.......................................................................................................11 Section 4.5 Preventative Maintenance and Services .................................................... l 1 Section 4.6 City and Authority Not Liable for Failure of Utilities...............................12 Section4.7 Landscaping...............................................................................................12 AR'1'ICL.E V CONSIDERATION........................................................................................13 Section5.1 Base Rent......................................................................... ................. .13 Section 5.2 Additional Rent..........................................................................................13 Section 5.3 Interest on Late Payments..........................................................................13 Section 5.4 Place of Payment........................................................................................13 ARTICL.F VI IM110SITIONS...........................................................................................14 Section6.1 Impositions.............................................................................................14 Section6.2 In Kind Services........................................................................................14 ARTICLE VII HAZARDOUS MATERIALS.......................................................................14 Section 7.1 Handling of Hazardous Materials..............................................................14 Section7.2 Indemnification......................................................................................15 Section 7.3 Disclosure, Warning and Notice Obligations............................................16 Section 7.4 Environmental Tests and Audits...............................................................16 Section 7.5 Survival of Museum's Obligations.............................................................16 i 01- i112 • 0 Eau ARTICLE VIII RECORDS AND AUDITING.......................................................................16 Section 8.1 Records Of Sales ......................... .............. .........................................16 Section8.2 Audit......................................................................................................17 ARTICLE IX LICENSES; COMPLIANCE: WITH LAWS..................................................17 Section 9.1 Licenses and Permits..............................................................................17 Section 9.2 Compliance with Laws..............................................................................17 ARTICLE X ALTERATION OF PREMISES....................................................................17 Section 10.1 Change/AIterations....................................................................................18 Section10.2 Manner of Construction.............................................................................18 Section 10.3 Mechanics' Liens........................................................................................18 ARTICLE XI AUTHORITY'S INSPECTION AND RIGHT OF ENTRY .......................... 19 Section 11. 1 Inspection by Authority ................................................ ......................19 Section 11.2 Authority's Right of Entry.........................................................................19 ARTICLE. XII INDEMNIFICATION AND INSURANCE..................................................19 Section 12.1 Indemnification by Museum.......................................................................20 Section 12.2 Insurance............................................................................. ..................20 Section 12.3 Waiver of Subrogation...............................................................................22 Section 12.4 No Liability of Authority or City...............................................................22 ARTICLE., XIII DAMAGE AND DESTRUCTION................................................................22 Section 13.1 Destruction of Subleased Premises............................................................22 Section 13.2 Museum's Option to Terminate Lease......................................................23 Section 13.3 Authority's Option to Terminate Lease......................................................23 Section 13.1 Termination of Interlocal Agreement........................................................24 Section 13.5 Demolition of Building..............................................................................24 Section 13.6 Insurance Proceeds.....................................................................................24 ARTICLE XIV EMINENT DOMAIN.....................................................................................24 Section 14.1 Complete PermanentTaking ......................................................................24 Section 14.2 Partial Permanent Taking..........................................................................25 Section 14.3 Temporary Taking.....................................................................................25 AR'T'ICLE XV ASSIGNMENTS AND SUBLETTING.........................................................25 Section 15.1 Assignment and Subletting of Subleased Premises...................................25 Section 15.2 Procedure for Transfer...........................................................................26 Section 15.3 Acceptance of Rent from Transferee.........................................................27 Section 15A No Release of Museum .................................................... ........................27 Section 15.5 Event of Bankruptcy..................................................................................27 ARTICLE XVI MORTGAGE FINANCING; RIGHTS OF MORTGAGEE ..........................27 Section 16.1 Leasehold Mortgages.................................................................................28 Section 16.2 Rights of Leasehold Mortgagees...............................................................28 Section 16.3 Notices to/frQm Leasehold Mortgagees.....................................................31 Section 16.4 Lease Modifications...................................................................................31 • • Pay e ARTICLE XVII OWNERSHIP OF IMPROVEMENTS..........................................................31 ARTICLE XVIII SIGNAGE; WATSON-ISLAND ASSOCIATION........................................32 Section 18.1 Building; Signage................................................................................32 Section 18.2 Watson Island Signage System ....................... ......................... .........32 Section 18.3 Watson Island Association.........................................................................32 Section 18.4 Expense Pass-Throughs.............................................................................33 ARTICLE XIX DEFAULT PROVISIONS.............................................................................33 Section 19.1 Events of Default - Museum......................................................................33 Section 19.2 Events of Default -Authority.....................................................................34 Section19.3 Mitigation................................................................................... ............35 Section 19.4 Unavoidable Delay.............................................................. .... .....35 . .... .... .... . Section 19.5 Termination................................................................................................35 ARTICLEXX NOTICES.......................................................................................................36 ARTICLE XXI QUIET ENJOYMENT...................................................................................36 ARTICLE XXII ESTOPPEL CERTIFICATES ................................. ....36 ARTICLE; XXIII REMEDIES CUMULATIVE.........................................................................37 Section 23.1 Remedies Cumulative....................................................... .....................37 Section 23.2 Waiver of Remedies Not To Be Inferred...................................................37 ARTICLE; XXIV SURRENDER AND HOLDING OVER.......................................................37 Section 24.1 Surrender at End of Term..........................................................................37 Section 24.2 Rights Upon Holding; Over........................................................................38 ARTICLE XXV MISCELLANEOUS PROVISIONS..............................................................38 Section 25.1 Ingress and Egress......................................................................................38 Section 25.2 Assignability and Binding Effects.............................................................38 Section25.3 Amendments..............................................................................................38 Section 25.4 Award of Agreement..................................................................................38 Section 25.5 Construction of Agreement........................................................................39 Section 25.6 Waiver of Jury Trial, .................................................................................. 39 Section25.7 Severability...................................................... .............................. ....39 Section 25.8 Time of Essence as to Covenants of Sublease ...........................................39 Section25.9 Captions....................................................................................................39 Section 25.10 Conditions and Covenants.........................................................................39 Section 25.11 Museum's Obligations Survive Termination.............................................39 Section25.12 Radon.........................................................................................................39 Section 25.13 Recording; Documentary Stamps..............................................................39 Section 25.14 Duplicate Originals ....................................................................................40 Section 25.15 Third Party Beneficiaries...........................................................................40 Section 25.16 Non -disturbance and Attornment/City.......................................................40 Section 25.17 Provisions Not Merged with Deed.............................................................40 Section 25.18 Waiver of Landlord's Lien.........................................................................40 iii • •.S Section 25.19 Approvals and Consents ............................................................................40 Section25.20 Exculpation .................................................................................... ....41 Section 25.21 Entire Agreement .............................................. ......................... .........41 Section 25.22 Attorneys' Fees..........................................................................................41 ARTICLE XXVI AFFIRMATIVE ACTION.............................................................................41 Section26.1 Affirmative Action....................................................................................41 Section 26.2 Nondiscrimination....................... ...........................................................41 LIST OF EXHIBITS: Exhibit A Exhibit BB Exhibit C Exhibit D,1 Exhibit D-2 Exhibit E Exhibit F Legal Description of Property Memorandum of Sublease Agreement Sketch of Parking Area (to be agreed upon) Sketch of Museum Access Road (to be agreed upon) Sketch of Entry Boulevard (to be agreed upon) Sketch of Greenspace Area (to be agreed upon) Sketch of Museum Parking Spaces (to be agreed upon) SUBLEASE AGREEMENT (MIAMI CHILDREN'S MUSEUM PROJECT) TflIS SUBLEASE AGREEMENT (the "Sublease"), is made and entered into this day of , 2001, by and between the Miami Sports and Exhibition Authority, an independent and autonomous agency and instrumentality of the City of Miami (the "Authority"), and the Miami Children's Museum, Inc., a Florida not-for-profit corporation (the "Museum"). RECITALS WHEREAS, the City of Miami (the "City") and the. Authority have entered into that certain Interlocal Agreement dated as of the day of ; 2001 (the "Interlocal Agreement") whereby, inter alia, the City has leased to the Authority a portion of Watson Island referred to in the Interlocal Agreement as the "Property", more particularly described on Exhibit A attached hereto (the "Property"); and WHEREAS, the effectiveness of the Interlocal Agreement is contingent upon the Authority and the Museum entering into a mutually acceptable sublease agreement; and WHEREAS, the Interlocal Agreement provides that the Property will be used for a regional children's museum and other related facilities and improvements; and WHEREAS, the Museum desires to develop, construct, manage and operate the children's museum; and WHEREAS, the Authority desires to sublease to the Museum the Property for the purpose of developing, constructing, managing and operating a world-class children's museum thereon; and WHEREAS, the Museum intends to contribute sufficient funds from public or private sources as is necessary for the construction of the children's museum. NOW, THEREFORE, in consideration of the foregoing and of the rent, covenants, and agreements hereinafter set forth, the parties do hereby covenant and agree as follows: ARTICLE I DEFINITIONS Section 1.1 Defined Terms-, Singtit ar, Plural and Gender. Terms which have initial capital letters and are not otherwise defined in this Sublease shall have the meaning set forth in the Interlocal Agreennent. Any word contained in the text of this Sublease shalt be read as the singular or the plural, and as the masculine, feminine or neuter gender as may be applicable in the particular context. More specifically, however, for the purposes of this Sublease the following words shall have the meanings attributed to them in this Section: 01— ��V2 1.1.1 1.1.2 19.1(a). 1.1.3 Alterations. "Additional Rent" has the meaning ascribed to it in Section 5.2. "Adequate Assurances" has the meaning ascribed to it in Section "Alterations" means collectively, Major Alterations and Permitted 1.1.4 "Applicable Caws" shall mean any law (including without limitation, any Hazardous Materials Laws), enactment, statute, code, ordinance, administrative order, charter, tariff, resolution, order, rule, regulation, guideline, judgment, decree, writ, injunction, franchise, permit, certificate, license, authorization, or other direction or requirement of any governmental authority, political subdivision, or any division or department thereof, now existing or hereafter enacted, adopted, promulgated, entered, or issued. 1.1.5 "Authority" has the meaning ascribed to it in the opening paragraph of this Sublease as well as the Authority's successors and/or assigns. 1.1.6 "Bankruptcy Code" shall have the meaning ascribed to it in Section 15.5. 1.1.7 "Base Rent" means that base rent to be paid as set forth in Section 5.1. 1.1.8 "Buildin " shall mean the structure to be constructed upon the Subleased Premises for the Project. 1.1.9 "Business Hours" shall mean customary hours of operation for a regional children's museum, which shall include evening hours to accommodate special events and/or other museum programming, provided that all outdoor events held after 9:00 p.m. are subject to the Authority's prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. 1.1.10 "Chalk's Claim" shall mean [Law Department to provide]. 1.1.11 "City" means the City of Miami, a municipal corporation of the State of Florida. 1.1.12 "City Business Days" means Monday through Friday, excluding legal holidays. 1.1.13 "City _Commission" means the City Commission of the City of Miami. 1.1.14 ' Completion Date" has the meaning ascribed to it in the Development Agreement. 1.1.15 "CPA" means an independent certified public accountant. 1.1.16 "CPP, has tine meaning ascribed to it in Section 6.2. 2 01--- 772 1.1.17 "Deed Restrictions" shall mean those certain restrictions contained in Deed No. 19447 made by the Trustees of the Internal Improvement Fund of the State of Florida to the City dated February 24, 1949, and recorded in Deed Book 3130, Page 2157 of the Public Records of Miami -Dade County, Florida. 1.1.18 "Development Agreement" means that certain Development Agreement of even date herewith by and between the Authority and the Museum governing the construction of the Project, together with any modifications, amendments, restatements and supplements thereto. 1.1.19 "Development Order" shall mean the final and effective Development Order authorized and approved by the City Commission at the hearing for the Major Use Special Permit for the Project. 1.1.20 "Directional Signage Costs" has the meaning ascribed to it in Section .17.2. 1.1.21 "Effective Date" means the date this Sublease is signed by the Authority and the Museum. 1.1.22 "Entry Boulevard" has the meaning ascribed to it in Section 4.1. 1.1.23 "Event of Museum's Default" has the meaning ascribed to it in Section 19.1. 1.1.24 "Event of Authority's Default" has the meaning ascribed to it in Section 19.2. 1.1.2 "Fiscal Year" means each consecutive twelve-month interval commencing on July I` and expiring June 301h. 1.1.26 "Hazardous Materials" has the meaning ascribed to it in Section 7.1. 1.1.27 "Hazardous Materials Laws" has the meaning ascribed to it in Section 7.1. 1.1.28 "Impositions" means all governmental assessments, fire fees, parking surcharges, excises, license and permit fees, levies, charges and taxes, general and special, ordinary and extraordinary, of every kind and nature whatsoever (irrespective of their nature, including, without limitation, all such charges based on the fact of a transaction, irrespective of how measured) which at any time during the "Perm of this Sublease may be assessed, levied, confirmed, imposed upon, or become due and payable out of or in respect of, or become a lien on, all or any part of the Project, the land and/or improvements thereon, or any fixtures, equipment or personal property placed therein or thereon, including, without limitation, ad valorem and other similar taxes on the real estate, the leasehold interest and/or personal property. 1. l .29 "Initial Term" has the meaning ascribed to it in Section 2.2. 1.1.30 "In Kind Services" has the meaning ascribed to it in Section 6.2. 1.1.31 "Interlocal Agreement" means the Interlocal Agreement referred to in the recitals to this Sublease together with any modifications, amendments, restatements and supplements thereto. 1.1.32 "Leasehold Estate means all of the estate, rights and interest of the Museum in and to the Subleased Premises. 1.1.33 "Leasehold Mortgage" has the meaning ascribed to it in Section 16.1. 1.1.34 "Leasehold Mortgagee" means any institutional lender, including without limitation any state or federally chartered bank, savings and loan association, commercial bank, insurance company, pension fund or other similar institutional entity, financing or refinancing any capital improvements for the Project, and any other person or entity approved by the Authority that finances or refinances any capital improvements for the Project. 1.1.35 "Maior Alteration" has the meaning ascribed to it in Section 10.1. 1. 136 "Museum" has the meaning ascribed to it in the opening paragraph of this Sublease, together with its successors and/or assigns. 1.1.37 "Museum Access Road" has the meaning ascribed to it in Section 4.1 1.1.38 "Museum Sign" shall have the meaning ascribed to it in Section 2.7. 1.1.39 "Parties" (whether or not by use of the capitalized term) means the Authority and the Museum. 1. IAO "Permitted Alteration" has the meaning ascribed to in Section 10.1. 1.1.41 "Person" means any natural person, trust, firm, partnership, corporation, joint venture, association, or any other legal or business entity or investment enterprise. 1.1.42 "Personal Property" means all property owned and used by the Museum or any sub -subtenant or Transferee of the Museum, in connection with and located upon the Subleased Premises, subject to rights of any secured party or title retention agreement of a third party. 1.1.4 i "Possession Date" means the date on which the Authority delivers possession of the Subleased Premises to the Museum which shall occur upon satisfaction of the condition precedent set forth in Section 2.6.1 and expiration of the Review Period under the Development Agreement. 1.1.44 "Project" shall mean the development, construction, management and operation of the regional children's museum to be known as the "Miami Children's 0 • Museum", and any other related facilities and improvements at the Property, which are incidental and ancillary to the operation of a regional children's museum. 1.1.45 "Property" shall mean that certain arca located on Watson Island, which is legally described in Exhibit A attached hereto and incorporated herein. 1.1.46 "Rent" shall mean the Base Rent, Additional Rent and any other amounts the Museum is required to pay under this Sublease. 1.1.47 "Section", "subsection", "paragraph", "subparagraph", "clause", or "subclause" followed by a number or letter means the section, subsection, paragraph, subparagraph, clause or subclause of this Sublease so designated. l .1.48 "Sublease Date" means the date this. Sublease is last signed by the Executive Director on behalf of the Authority and by the Museum, after approval by the City. 1.1.49 "Subleased Premises" shall mean the Property. Because the Museum is subleasing the entire Property under this Sublease, the terms "Subleased Premises" and "Property" are used inter -changeably herein. 1.1.50 "Sublease Year" shall mean any period of time consisting of twelve (12) consecutive calendar months commencing on the Possession Date. 1.1.51 "Sub -sublease" means any sublease (excluding this Sublease), sub - sublease, license, concession or other agreement by which the Museum or any person or other entity claiming under the Museum (including, without limitation, a sub -subtenant or sublicensee) demises, leases, subleases, licenses or sublicenses to or permits the use or occupancy by another person or entity of any part of the Subleased Premises. 1.1.52 "Sub -subtenant means any person, firm, corporation or other legal entity using or occupying or entitled to use or occupy any part of the Subleased Premises under a Sub -sublease. 1.1.53 "Term" has the meaning ascribed to it in Section 2.2. 1.1.54 "Transfer" has the meaning; ascribed to it in Section 15.1. 1.1.55 "Transferee" has the meaning ascribed to it in Section 15.1. 1.1.56 "Unavoidable Delay" shall have the meaning given to it in Section 19.4. Section 1.2 Incorporation of Exhibits. All exhibits attached to this Sublease and referenced herein are incorporated herein as if frilly set forth in this Sublease. 5 01- 772 ARTICLE II DESCRIPTION; EASEMENTS; TERM; PARKING Section 2.1 Description of Subleased Premises; Title. The Authority hereby subleases to the Museum, and the Museum hereby subleases from the Authority, the Subleased Premises located on Watson Island in the City of Miami, Florida. The Authority shall transfer possession of the Subleased Premises to the Museum on the Possession Date. The Authority represents, and the Museum acknowledges, that the Subleased Premises are subject to (and only to) the Deed Restrictions, the Chalk's Claim (if applicable to the Property), recorded easements and other items recorded in the public records of Miami -Dade County, Florida. Except as expressly provided in Section 2.4, the Authority covenants and agrees not to consent to any future reservations, covenants, easements, restrictions or liens requested by the City, or otherwise permit or suffer any impainnent of the state of title to the Subleased Premises, without the prior written consent of the Museum, which shall not be unreasonably withheld or delayed. The MUseull] agrees that neither the Authority nor the City shall have liability to the Museum with respect to unrecorded utility casements which may exist as of the Effective Date and are now or later determined to affect the Property. Each of the Authority and the Museum represents and warrants to the other it has full right and authority to enter into this Sublease. Section 2.2 Term of Sublease. This Sublease shall be for a terns of fifty (50) years (the "Initial Term") commencing on the Possession Date and ending on the date that is fifty (50) years thereafter, unless terminated at an earlier date pursuant to the terms of this Sublease. The Initial Term, together with any extensions thereof, is hereinafter referred to as the "Term." Following the Possession Date, the Authority and the Museum, upon request of either party, shall execute a memorandum of this Sublease in the form attached hereto as Exhibit B, which Memorandum will be recorded among the Public Records of Miami -Dade County, Florida. Upon the written request of the Museum given no later than twelve (12) months prior to the expiration of the Ternr (as same may have been previously renewed), the Authority shall request the City to extend the term of the Interlocal Agreement for one or more renewal periods not to exceed twenty (20) years in the aggregate. The City shall have no obligation to extend the term of the Interlocal Agreement. The Museum's failure to request the extension of the Interlocal Agreement by said date shall be deemed a waiver of any right to extend the term of this Sublease. In the event the City agrees to extend the term of the Interlocal Agreement, the Authority shall likewise extend the Term of' this Sublease for an equivalent period of time on the same terms and conditions of this Sublease in force during the original Term, as the same may have been modified from time to time by written agreement of the parties. Section 2.3 Easements. Effective on: the Possession Date, the Authority shall be deemed to have granted to the Museum the easements granted by the City to the Authority under Article 5 of the Interlocal Agreement and all of the Authority's right, title and interest therein. Section 2.4 Easement for Development of Other Areas of Watson Island. The Museum acknowledges that the City has reserved the right under the Interlocal Agreement to erect, use, maintain and repair water, sanitary sewer and storm water utilities, mechanical and electrical conduits, pipes, and cables in, to, under and through the areas along the boundaries of 6 01" 772 the Property in locations mutually agreeable to the parties to the extent that the City may now or hereafter deem to be necessary or appropriate for the development of other areas of Watson Island, provided that there is no material interference with the Project or the use and enjoyment of the Property by the Authority or the Museum, and the other conditions of Section 5.3 of the Interlocal Agreement are met. The Authority agrees that it shall consult with and obtain the consent of the Museum prior to agreeing with the City as to the location of such utilities and equipment, which consent shall not be unreasonably withheld or delayed. The Museum also acknowledges that the City intends to undertake (or cause to be undertaken) further development on Watson Island, all of which may cause some noise and other interference with the Project. By its execution hereof, the City agrees with the Museum that it shall use best efforts to (and to cause best efforts to be used by other parties undertaking such work to) minimize the interference and disruption by such development on the Project. The .Museum acknowledges that the leasehold interests conveyed under the Interlocal Agreement and this Sublease are subordinate to the City's right to convey, from time to time, such easements as may be necessary for right-of-way, vehicular and pedestrian traffic across or along the boundaries of the Property in locations mutually agreeable to the City, the Authority and the Museum which do not unreasonably interfere with the Project. Section 2.5 Parkinu. The Authority represents that, by the date on which the Museum opens its doors to the public and throughout the remainder of the Term, the Museum shall have available to it 142 unassigned parking spaces to be located on a surface lot or in a parking garage to be constructed on land lying immediately adjacent to the Subleased Premises in the location depicted on Exhibit C attached hereto. The parking spaces shall be made available to the Museum for the use of the Museum, its patrons, employees, licensees, visitors and all other invitees during normal Business (-lours, Monday through Sunday, at such rates as may be negotiated by the Museum and the entity operating the parking facility. Notwithstanding the foregoing, in the event that the parking facility is operated by the City or any department, agency or authority related to, associated with or under the jurisdiction of the City, the parking rates shall not exceed the lesser of (i) the then prevailing rates for municipal parking spaces, or (ii) such lower rates as may be negotiated by the Museum. The Museum agrees that it will maintain not less than four (4) handicapped parking spaces on the Property throughout the Term. Notwithstanding the foregoing, upon the written request of the Authority delivered to the Museum in accordance with the notice provisions of this Sublease not less than thirty (30) days prior to the expiration of the Review Period (as defined in the Development Agreement), the Muscum, at its sole cost and expense, shall design and construct its 142 parking spaces if the City determines it is in the best interest of the City to require the Museum to constrict such parking. In such event, the Museum shall construct its parking on the land depicted in Exhibit F to the extent such land is needed for the construction of the 142 parking spaces, and shall have the right and license to use same as hereinabove provided free of charge. Section 2.6 Condition Precedent; Conditions Subsequent; Right to Tenninate. 'Phis Sublease is subject to the following conditions: 2.6.1 Condition Precedent. The Museum agrees that this Sublease shall be automatically terminated in the event that within twelve (12) months after the Effective of 712 Date, the Museum shall not have provided to the Authority (i) satisfactory evidence that sufficient funds have been or will be secured by the Muscum for the construction of the Project (which evidence may consist of approved grants, loan commitments, letters confirniing individual and/or corporate donations or sponsorships, etc.), and (ii) a commercially reasonable business plan supporting the operation of the Museum over the initial five (5) years following opening. The Museum covenants not to sue nor contest the termination of this Sublease tinder this Section, whereupon the parties hereto shall be released from all further obligations hereunder. 2.6.2 Conditions Subsequent. The Museum agrees that the Authority shall have the right to terminate this Sublease in the event that any of the following conditions are not satisfied within the time period indicated below; (a) Within twelve (12) months after the Effective. Date, the Museum shall have commenced construction of the Project, subject to Unavoidable Delay; and (b) Within thirty (30) months after eonstntction of the Project has commenced, the Project shall be substantially completed in accordance with the Development Order, subject to Unavoidable Delay. The issuance of a temporary certificate of occupancy shalt constitute sufficient evidence that the Project has been substantially completed in accordance with the Development Order. In the event that any of the foregoing conditions subsequent are not satisfied within the time period specified, subject to Unavoidable Delay, the Authority shall have the right to ternlinate this Sublease and the Development Agreement by written notice to the Museum delivered pursuant to the notice provision contained herein at any time after the expiration of said time period but prior to the satisfaction of the condition in question. In the event that the condition is satisfied prior to the Authority's termination of this Sublease and the Development Agreement, the Authority's right to terminate with respect to that particular condition shall cease Upon termination the parties shall be released from all further obligations hereunder, 2.6.3 Termination of Development Agreement. The parties hereby acknowledge that all liabilities, obligations and covenants of the Museum and the Authority under this Sublease are contingent upon the satisfaction of the conditions set forth in Article 11 (entitled "Conditions Subsequent") of the Development Agreement. In the event that the Museum terminates the Development Agreement under said Article 11 for any reason, then this Sublease shall automatically terminate and be of no further force or effect, and the parties shall be released from all further obligations hereunder. The Authority and the Museum agree to execute a written certification confirming the termination of this Sublease under the foregoing provision upon the request of either party to do so. 2.6.4 "Termination of Interlocal Agreement. In the event that the Interlocal Agreement is terminated under Section 6.2, Section 6.3 or Article 17 thereof, then this Sublease shall automatically terminate and be of no further force or effect, and the parties shall be released from all further obligations hereunder. The Authority and the Museum 1 W4 ►17112 agree to execute a written certification confirming the termination of this Sublease under the foregoing provision upon the request of either party to do so. Section 2.7 Pre -Possession Date Signage. From and after the Effective .Date, the Museum, at its sole cost, shall have the right and license to keep and maintain a sign (the "Museum Sign") on the Property which publicizes the Property as "The Future Home of the Miami Children's Museum" (or words of like import), together with the right of ingress and egress to and from the Museum Sign for the purpose of maintaining, altering, replacing and/or removing . the Museum Sign. The Museum Sign shall be installed in a location mutually acceptable to the parties, and shall be installed and maintained by the Museum under valid permits and in compliance with all Applicable Laws. In the event that this Sublease is terminated for any reason, the Museum, at its sole cost, shall be required to immediately remove the Museu n Sign from the Property and to restore any damage caused by such removal. The Museum shall indemnify and hold the City and the Authority harmless from any claims, causes of action, fines penalties or levies made against either of them by reason of the Museum's installation of the Museum Sign on the Property. The Museum Sign shall be subject to the City's approval, which shall not be unreasonably withheld, conditioned or delayed. ARTICLE III PURPOSE OF USE AND OCCUPANCY Section 3.1 Use of Subleased Premises. The Museum agrees that the Subleased Premises shall be known throughout the Term as the "Miami Children's Museum" and shall be used exclusively for the purposes set forth herein. No use shall be made or permitted to be made Of the Subleased Premises, or acts done, which are in violation of any Applicable. Law. The Subleased Premises are to be utilized solely for the development, construction, management and operation of a regional children's museum and related facilities and improvements. The primary purpose of the Museum will be to offer participatory educational interactive exhibits and programs that are designed to stimulate understanding through involvement for infants through school-age children. The Museum's programs may include without limitation; pre-school and "parent and me" classes, after school and weekend classes and programming, field trips for public and private school students, camps (including summer camps), scout troops and other groups; environmental and outdoor programs; puppetry, theater, music and dance performances, lectures and workshops for parents and educators; visual and performing art classes; multicultural and other educational festivals; and other special events customary or ancillary to a children's museum. The Museum may also contain other educational and Museum patron - related business and services ancillary to or customary in the operation of a regional children's museum (such as, by way of example and not limitation, an educational gift shop, educational facilities, photo concession and restaurant/snackbar). Any restaurant/snack bar shall serve patrons, employees, licensees and visitors of the Museum only. Any police and fire related exhibits will display the name and seal of the City of Miami. The Museum shall only use City of Miami police and fire services when said services are required for their operations Including special events. The Project shall be operated at all times for the use and benefit of the public, and all of the Project's facilities and services shall be made available to the public on fair and reasonable terms without discrimination. The Museum shall conduct its operations in an orderly 9 01" 772 • rnaruier reasonably intended not to disturb or be offensive to customers, patrons or others in the immediate vicinity of such operations. The Museum may charge fees comparable to those of similar facilities for similar services. The Subleased Premises shall not be used for any purpose other than the purposes set forth herein without the prior written consent of the Authority, which consent may be withheld or conditioned in the Authority's sole discretion. This Sublease and all rights of the Museum hereunder shall, at the option of the Authority, cease and terminate if the Museum uses the Subleased Premises for any purposes not permitted herein. Section 3.2 Continuous Duty to Operate. Except where the Subleased Premises are rendered untenantable by reason of fire or other casualty, the Museum shall at all times during the term of this Sublease following the Completion Date: (i) occupy the Subleased Premises; (ii) continuously conduct operations in the Subleased Premises in accordance with the terms of this Sublease; and (iii) keep the Subleased Premises open for operation during hours usual for this type of facility. . Section 3.3 Deed Restrictions. The conveyance of the leasehold interest in the Property under this Sublease and the Museum's activities pertaining to planning, establishment, development, construction, improvement, maintenance and operation of the Project, have been found to be in compliance with the Deed Restrictions as public and governmental functions exercised for a public purpose. The Museum acknowledges that (i) the Deed Restrictions prohibit the use of the Property and other portions of Watson Island by private persons and entities for private use or purpose, and require that such lands be used solely for public purposes, and (ii) a violation of the Deed Restrictions will result in the forfeiture of fee title to the Property to the State of Florida. Accordingly, the Museum covenants and agrees to, and shall cause all subtenants to, comply with the Deed Restrictions throughout the entire Term. The Museum Further agrees that a violation of the Deed Restrictions by the Museum hereunder or by the Authority under the Interlocal Agreement will result in the automatic termination of this Sublease, the Development Agreement and the Interlocal Agreement without the need for notice of any kind to any party. The Authority covenants and agrees that it shall take no action with regard to the Property that would constitute a violation of the Deed Restrictions, ARTICLE IV INFRASTRUCTURE; SERVICES; REPAIRS Section 4.1 Infrastructure Improvements. The Museum, at no cost to the Authority, shall (a) design, construct and install all necessary utilities required in connection with the construction and operation of the Project including, but not limited to, all necessary connections to existing water, sanitary sewer and storm water drain mains, and mechanical and electrical conduits servicing the southside of Watson Island, whether or not owned by the City and/or the Miami -Dade Water and Sewer Department; (b) design and construct the Museum access road connecting the Property to the causeway access roadway servicing the southside of Watson Island (the "Museum Access Road"); and (e) pay up to fifty percent (50%) of the cost for the design and construction of the Entry Boulevard (the "Entry Boulevard"), provided that (i) the Museum shall not be responsible for performing the actual design and construction of the Entry Boulevard, arrd (ii) the total cost to the Museum for the Entry Boulevard shall not exceed $200,000. The City and the Authority agree to investigate alternative sources of funding for the Entry Boulevard. Furthermore, in the event that construction of the currently planned Aviation and Visitor's Center south of the Property does not proceed for any reason, the City and the Authority will re-evaluate the necessity of the Entry Boulevard before requiring the Museum to contribute to its design and construction. The Museum Access Road and Entry -Boulevard are depicted in Exhibits D-1 and DD2: Section 4.2 Utilities. The Museum, at its sole cost and expense, shall be responsible for all utilities rendered or supplied upon or in connection with the Subleased Premises, including but not limited to, electricity, telephone, water, gas, sewage disposal, stormwater fees, trash and garbage removal. Section 4.3 Services. The Museum shall, at its sole cost and expense, cause to be provided to the Project all services required to operate the Project on the Subleased Premises, including, but not limited to, heating, ventilation and air conditioning required in the Museum's judgment for the comfortable use and occupation of the Building; water and sewage service; pest control; exterior landscaping; exterior grounds maintenance and cleanup; security as is required for similar facilities; and electric current for normal use and light. The level of services provided to the Project shall be stlfficient to support the actual demands of the Building and the Subleased Premises. Section 4.4 Repairs. The NIUseutrl shall, at its sole cost and expense, provide all maintenance, including preventive maintenance, repairs and replacements, as necessary, to the Subleased Premises and the Building, including, but not limited to, the pavement, driveways, lighting, mechanical equipment, fixtures, floor coverings, building interior and exterior walls, structural, roof, ceilings, plumbing, heating, air conditioning, electrical and life safety systems installed or furnished by the Museum. The Museum shall not commit, or suffer to be committed, any waste in or upon the Subleased Premises, which, in the Authority's sole but reasonable opinion, detracts from the appearance of the Subleased Premises. All maintenance, repairs and replacements shall be performed in a manner and level of service reasonably satisfactory to the Authority. Section 4.5 Preventative Maintenance and Services. The Museum shall, at its sole cost and expense, provide the following preventive maintenance and services: (a) Cleaning and janitorial services for the Property; (b) Grounds services including lawn, shrub and tree maintenance and removal of any rubbish or obstructions from the Property; (c) interior and exterior window cleaning to he performed as needed but no less than once every one hundred and twenty (120) days; (d) Vermin control as necessary, but no less than once every sixty (60) days; ]l (e) Periodic maintenance and cleaning of kitchen and exhaust equipment, and grease traps or grease inceptors, if applicable; and (f) Painting of interior and exterior of buildings including caulking of all window and door frames, painting of signs, if applicable, and restriping of parking spaces on Property as necessary, but no less than once every four (4) years. In addition to the above, commencing during the fourth Sublease Year following the Museum's initial occupancy of the Building, and once every two (2) years thereafter, the Museum, at its sole cost and expense, shall have a qualified engineer perform a physical inspection of the Subleased Premises including;, but not limited to, all structural components, plumbing, life safety, electrical, heating and air conditioning; systems, and mechanical equipment as part of a preventive maintenance program. The Museum shall submit the engineer's report along with a proposed plan for the funding; and implementation of the recommendations contained in the engineer's report to the Authority by the end of the Sublease Year in which such report is due for the Authority's review. If the Museum refuses, neglects or fails to provide the services required herein or does not provide adequate services within thirty (30) days after written demand from the Authority, the Authority may take corrective measures or cause the Property to be cleaned or repaired without waiving its right based upon any default of the Museum and without releasing; the Museum from any obligations hereunder. The Museum shall pay the Authority the full cost of such work within thirty (30) days of receipt of an invoice' indicating the cost of such corrective measures or cleanup. Failure to pay such invoice shall constitute a default of this Sublease. Notwithstanding the above, the Museum's failure to perform the corrective measures or cleanup to the Property as directed shall constitute a default of this Sublease. Nothing herein shall imply that maintenance, repair and inspections should be performed by the Musctun only at the suggested intervals. "rhe Museum shall, at all times, be responsible for the condition of the Property and shall perform repairs required in a timely manner so as to prevent injury to persons and waste to property. Section 4.6 Cit • and Authority not Liable for Failure of Utilities. The City and the Authority shall not be liable (other than for their own or any of their agents, servants and employees gross negligence or willful misconduct) for any failure of water supply, sewer, gas or electric current or for any injury or damage to any Person or property caused by or resulting from any water, sewer, gas or electricity which may leak or flow from the water, sewer or gas mains on to any part of the Subleased Promises or the Building. Section 4.7 Landscaping. The Museum shall plant and maintain the landscaping within the Subleased Premises in accordance with the landscape plan submitted and approved with the MUST. Such landscaping shall be maintained in a manner consistent with a first class regional children's museum facility. The Museum agrees to comply with any future landscaping guidelines that may be adopted for Watson Island so long as such guidelines do not substantially increase the cost of maintenance to the Museum. Additionally, the Museum agrees to maintain the greenspace area depicted in Exhibit F, if requested to do so by the City, in such condition as may be reasonably requested by the City, so long as the cost of maintenance of such area does 12 01 772 0 • not impose an unreasonable financial burden on the Museum. The Museum shall not be required to landscape the area depicted in Exhibit E. If the Watson Island Association is established as contemplated in Section 18.3 and the responsibilities of the Watson Island Association include maintenance of common areas on Watson Island, then the Authority shall impose the responsibility for the maintenance of such greenspace area on said association• in lieu of the Museum. ARTICLE V CONSIDERATION Section 5.1 Base Rent. From and after the Possession Date, the Museum shall pay to the Authority, in advance, Base Rent of TWO DOLLARS ($2.00) per Sublease Year, payable in advance at the commencement of the 'rerni if the Museum so elects. The Base Rent shall be fixed for the Term of this Sublease. The Museum shall pay to the Authority the amount of any sales or similar tax imposed by the State of Florida, if applicable, or any subdivision thereon on the Rent and other charges payable by the Museum under this Sublease. Such payments on account of sales or similar taxes shall be paid together with the corresponding amounts due under this Sublease and the obligation to pay same shall survive the expiration or earlier termination of this Sublease. Section 5.2 Additional Rent. In addition to the Base Rent, all other payments or charges payable by the Museum (if any), however denoted, are called "Additional Rent". All Additional Rent shall be paid when required under this Sublease. Section 5.3 Interest on Late Payments. Any payment made by the Museum for any rent, fee or charge as required to be paid under the provisions of this Sublease, which is not received by the Authority within ten (10) days after same shall become due, shall be subject to interest at the rate of twelve percent (12%) from the date such payment is due until such time as the payment is actually received by the Authority. Section 5.4 Place of Payment. Payment of the Base Rent, Additional Rent and all other charges deemed to be Rent under this Sublease shall be without prior notice, deduction, offset or demand, shall be in lawful money of the United States of America and shall be made at the address set forth for the Authority or such other party or such other address as may be designated by the Authority from time to time. If the Authority shall at any time or times accept Rent after it shall become due and payable, such acceptance shalt not excuse delay upon subsequent occasions, or constitute or be construed as a waiver of any or all of the Authority's rights hereunder. 13 o l" 772 ARTICLE VI IMPOSITIONS Section 6.1 Impositions. The Museum shall pay and discharge, as they become due, any and all Impositions, before any fine, penalty, interest or cost may be added to such Imposition. Section 6.2 In Kind Services. In addition to Base Rent, the Museum will provide to the City "in kind" services each Sublease Year having a dollar value of not less than $75,000 per Sublease Year ("In Kind Services"). The In Kind Services to be provided by the Museum shall consist of (i) a year round discount of fifty percent (50%) off the standard entrance fee to the Museum for City of Miami residents, (ii) special programs to be established in cooperation with and monitored by the City of Miami Parks and Recreation Department which may include scholarships for field trips, reduced admission charges for families, summer, fall, winter and spring.camps, or other programming and/or activities of a similar nature, and (iii) use of the Museum's auditorium for a maximum of six (6) City or City -sponsored events. The Museum's obligation to provide In Kind Services under this Sublease shall commence on the date which the Museum opens its doors to the public, but shall be prorated on a per diem basis for the Sublease Year in which the Museum opens based on the number of days remaining in such Sublease Year. With respect to item (iii), it is agreed that: (a) the events will be held on mutually agreeable dates and times, provided that the Museum will use commercially reasonable efforts to accommodate the City's selected dates, (b) the City will give the Museum no more than six (6) months, and no less than ten (10) days, prior written notice of the proposed date and time for the event(s), and (c) the City shall be responsible for all costs not included in the normal rental of the auditorium (by way of example and not limitation, if the cost of security and post -event clean-up are not included in the normal rental fee, the City will be responsible for providing and paying for thein separately). The amount of In Kind Services shall be increased on the first day of each Sublease Year by any increase during the prior year in the index known as "United States Bureau of Labor Statistics, Consumer Price Index, utilizing the "Consumer Price Index for All Items, Miami - Ft. Lauderdale, Florida", Base Year 1982-84=100 (hereinafter the "CPI"). In no event shall any CPI adjustment result in an amount of In Kind Services per annum which is less than seventy-five thousand dollars ($75,000). Notwithstanding the above, the Museum's obligation to pay all ad valorem taxes shall not be limited to the amount of In Kind Services being provided and the Museum shall be obligated to pay the entire ad valorem tax even if same exceeds the amount of In Kind Services required. ARTICLE VII HAZARDOUS MATERIALS Section 7.1 Handling of Hazardous Materials. The Museum shall, at its sole cost and expense, at all times and in all respects in connection with its use of the Subleased Premises, 14 ol— 772 comply with all federal, state and local laws, statutes, ordinances and regulations, rulings, policies, orders and administrative actions and orders ("Hazardous Materials Laws"), including, without limitation, any Hazardous Materials Laws relating to industrial hygiene, envirotunental protection or the use, analysis, generation, storage, disposal, or transportation of any fuel, oils, flammable explosives, asbestos, urea formaldehyde, radioactive materials or waste, infectious waste, or other hazardous, toxic, contaminated or polluting materials, substances or wastes, including, without limitation, any "Hazardous Substances", "Hazardous Wastes", "Hazardous Materials" or "Toxic Substances", tinder any such laws, ordinances or regulations (collectively "Hazardous Materials"). The Museum shall, at its sole cost and expense, procure, maintain in effect and comply with all conditions of any and all permits, licenses and other governmental and regulatory approvals relating to the presence of Hazardous Materials within, on, under or about the Subleased Premises required for the Museum's use of any Hazardous Materials in or about the Subleased Premises in conformity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. The Authority and the Museum agree that the Museum may use materials in normal quantities that are necessary for the construction of the Prgject and use of the Subleased Premises for the purposes stated herein, provided that any such materials which are Hazardous Materials shall be handled strictly in accordance with, and maintained at levels that are not in violation of any Hazardous Materials Laws. Except for ordinary cleaning supplies, the Museum represents and warrants that it shall not use, handle, transport, dispose of or store in, on or under the Property any Hazardous Materials in connection with its operation of the Subleased Premises. The Museum shall at all times during the Term and at the expiration of this Sublease, at its sole cost and expense, be responsible for performing any removal, remediation, cleanup or restoration required as a result of a release of Hazardous Materials in or about the Subleased Premises, caused by the placement of Hazardous Materials in or about the Subleased Premises by the Museum or at the Museum's direction, or by the Museum's failure to comply with any Hazardous Materials Laws. Upon termination or expiration of the Sublease, the Museum shall, at its sole cost and expense, cause all Hazardous Materials, including storage devices, placed in or about the Subleased Premises by the Museum or its members or guests, or at the Museum's direction, to be removed from the Subleased Premises and transported for use, storage or disposal in accordance and compliance with all applicable Hazardous Materials Laws. Section T2 Indemnification. The Museum shall indemnify, protect, defend and hold the City and the Authority free and harmless from and against any and all claims, liabilities, penalties, forfeitures, losses and expenses (including reasonable attorneys' fees) or death of or injury to any person or damage to any property whatsoever, arising from or caused in whole or in. part, directly or indirectly, by the presence in or about the Subleased Premises of any Hazardous Material placed in or about the Subleased Premises or used by the Museum or at the Museum's direction or by the Museum's failure to comply with any Hazardous Materials Law or in connection with any removal, remediation, cleanup, restoration and materials required hereunder to return the Subleased Premises and any other property of whatever nature to their condition existing prior to the appearance of the Hazardous Materials. The foregoing indemnity shall not cover any claims, liabilities, penalties, forfeitures, losses or expenses resulting from the gross 15 of 772 negligence or willful misconduct of the City, the Authority or anyone acting by, through or tinder either of them. Section 7.3 Disclosure, Warning and Notice Obligations. The Museum shall comply with all laws, ordinances and regulations in the State of Florida regarding the disclosure of the presence or danger of Hazardous Materials. The Museum acknowledges and agrees that all reporting and warning obligations required under the Hazardous Materials Laws are the sole responsibility of the Museum, whether or not such Hazardous Materials Laws permit or require the Authority to provide such reporting or warning, and the Museum shall be solely responsible .for complying with Hazardous Materials Caws regarding the disclosure of, the presence or danger of Hazardous Materials. The Museum shall promptly notify the Authority, in writing, of any complaints, notices, warning, reports or asserted violations of which the Museum becomes aware relating to Hazardous Materials on or about the Subleased Premises, The Museum shall also promptly notify the Authority if the Museum knows or has reason to believe a complaint, notice, warding, report or asserted violation will be released on or about the Subleased Premises. Section 7.4 Environmental Tests and Audits. At any time during the Term upon reasonable notice to the Museum, the Authority shall have the right, at its expense, to enter upon the Subleased Premises in order to conduct appropriate tests to establish whether the Subleased Premises is in compliance with all applicable Hazardous Materials Laws. The Museum shall have the right to have a representative present during any such testing. in the event that any test reveals non-compliance with applicable Hazardous Materials Laws, then the Museum shall immediately, upon demand, reimburse to the Authority the cost of the test, unless the Museum establishes to the Authority's reasonable satisfaction, that such non-compliance has been caused by the Authority's or the City's gross negligence. Section 7.5 Survival of Museum's Obligations. The respective rights and obligations of the Authority and the Museum under this Article V11 shall survive the expiration or termination of this Sublease. ARTICLE VIII RECORDS AND AUDITING Section 8.1 Records Of Sales. During the Term of this Sublease, the Museum shall maintain and keep, or cause to be maintained and kept at the Subleased Premises, a full, complete and accurate daily record and account of all revenues and expenses arising or accruing by virtue of its operations conducted at or related to the Property, including, but not limited to, any grants, donations, foundation support, tournaments, special events and/or other contributions to the Museum. All records and accounts including invoices, sales slips, bank statements or duplicate deposit slips and all other supporting records, shall be available for inspection and/or audit by the Authority and its duly authorized agents or representatives upon reasonable notice during the hours of 8:00 AM to 5:00 PM, Monday through Friday, and shall be maintained in accordance with generally accepted accounting principles. The Museum shall have the right to have a 16 w���t representative present during such audit. The Museum shall keep and preserve, or cause to be kept and preserved, its records for each Fiscal Year for a period of not less than sixty (60) months after the expiration of said Fiscal Year. The Museum shall also retain copies of all sales and tax returns covering its operations at the Museum for each Fiscal Year for a period of sixty (60) months following such Fiscal Year, and any other governmental tax or other returns which show the Museum's sales therein, and shall, upon demand, deliver photographic copies thereof to the Authority at no costa The Museum will cooperate with the Authority and its auditors in order to facilitate the Authority's examination of records and accounts. Section 8.2 Audit. The Museum shall deliver or cause to be delivered to the Authority within one hundred twenty (120) days after the end of each Fiscal Year, a financial statement for the prior Fiscal Year for the Museum's operations at the Property, prepared and certified by a certified public accountant (a "CPA") employed at Museum's sole cost and expense. The CPA shall certify that he made a complete examination of the books, state sales tax returns, and federal income tax returns of the Museum, and that the financial statement is prepared in accordance with generally accepted accounting principles and practices and represents the revenue and expenses of the Museum for the period indicated therein. At its option, the Authority may cause, at its sole cost and expense, a complete audit to be made of the Museum's business affairs, records, files, sales slips and sales tax records in connection with the Museum's operations on, from or related to the Property for the period covered by any financial statement, report or record furnished by the Museum to the City, provided that with respect to any given Fiscal Year, the Authority's audit rights hereunder shall expire sixty (60) months following the expiration of such Fiscal Ycar. ARTICLE fY LICENSES; COMPLIANCE WITH LAWS Section 9.1 Licenses and Permits. The Museum shall, at the Museum's sole cost and expense, obtain any and all licenses and permits necessary in connection with the Museum's use and occupancy of the Subleased Premises and its maintenance of the Building and the Subleased Premises. Section 9.2 Compliance with Laws. The Museum accepts this Sublease and hereby acknowledges that the Museum's compliance with all Applicable Laws, ordinances and codes of federal, state and local governments, as they may apply to this Sublease, including but not limited to building codes and zoning restrictions, is a condition of this Sublease and the Museum shall comply therewith as the same presently exist and as they may be amended hereafter. ARTICLE ALTERATION OF PItEMISES 17 01 ` 712 0 0 Section 10.1 Change/Alterations, Except during the initial construction of the Project which shall be handled in accordance with the terms and conditions of the Development Agreement and for purposes of providing services and repairs as outlined in Sections 4.3, 4.4 and 4.5, the Museum shall not make or allow to be made any structural alterations, alterations to the exterior of the Building, expansion of the restaurant, or alterations to the electrical, mechanical or plumbing systems servicing the Building which require a permit (each a "Major Alteration" and collectively the "Major Alterations"), without first obtaining the written consent of the Authority, which consent shall not be unreasonably withheld or conditioned and shall be granted or denied within fifteen (15) City Business Days of the Museum's provision of all documents concerning the Alteration reasonably required by the Authority including proof of funding and/or its financing plans. The Museum shall be permitted to perform any other alterations to the Subleased Premises which are not Major Alterations, including without limitation alterations to interior improvements and exhibits (collectively, "Permitted Alterations"), without the Authority's consent. Any construction undertaken in or to the Subleased Premises shall be performed in accordance with this Article and the other provisions of this Sublease. All Major Alterations shall require the City's prior written approval, which shall not be unreasonably withheld or conditioned, and shall be granted or denied within fifteen (15) City Business Days of request. Failure of the Authority or the City to respond within said 15 -day period shall be deemed approval. Section 10.2 Manner of Construction. The Authority may impose, as a condition of its consent to all Major Alterations or repairs that constitute Major Alterations on or about the Subleased Premises, such requirements as the Authority, in its reasonable discretion, may deem desirable, including, but not limited to, the requirement that the Museum obtain bonds and Builder's Risk Insurance. The Museum shall construct such Major Alterations or repairs in conformance with any and all applicable rules and regulations of any Federal, State, County or municipal code or ordinance and pursuant to a valid building permit (if required for the Major Alteration), issued by the local jurisdiction in which the Subleased Premises is located. In any event, a licensed contractor shall perforin all mechanical, electrical, plumbing, air conditioning, permanent partition and ceiling; tile work, and such work shall be performed at the Museum's sole cost. All work, with respect to any Alterations or repairs, must be done in a good and workmanlike manner and diligently prosecuted to completion. Upon completion of any Major Alterations, the Museum agrees to deliver to the Authority a copy of the "as built" drawings of the Major Alterations, if the Major Alterations would customarily generate "as builts" and record any necessary notices to evidence completion as would be customary in the State where the Subleased Premises is located. All Alterations, repairs and improvements to the Subleased Premises shall be performed and done strictly in accordance with the laws and ordinances relating thereto. Section 10.3 Mechanics' Liens. The Museum shall not knowingly suffer or permit any mechanics' liens to be filed against the title to the Subleased Premises, the Building, or the Project, nor against the Museum's interest in the property, nor against any Alteration by reason of work, labor, services or materials supplied to the Museum or anyone having a right to possession of the Subleased Premises, the Building, or the Project as a result of an agreement with or without the consent of the LMUScurn. Nothing in this Sublease shall be construed as constituting the consent or request of the Authority, expressed or implied, by inference or otherwise, to any 1s �.— 112 contractor, subcontractor, laborer or materialman for the performance of any labor or the furnishing of any materials, for any specific Alteration, or repair of or to the Subleased Premises, the Building or the Subleased Premises nor as giving the Museum the right, power or authority to contract for or permit the rendering of any services or the furnishing of any materials that would give rise to the filing of any mechanics liens against the Authority's interest in. the Subleased Premises, the Building, or the Project. If any mechanics' lien shall at any time be filed against the Subleased Premises, the Building, or the Project, the Museum shall cause it to be discharged of record within thirty (30) days after the date the Museum has knowledge of its filing. If the Museum shall fail to discharge a mechanics' lien within that period, then in addition to any other right or remedy, the Authority may, but shall not be obligated to, discharge the lien either by paying the amount claimed to be due or by procuring the discharge of the lien by deposit in court or bonding. The Authority shall be entitled, if it so elects, to compel the prosecution of any action for the foreclosure of the mechanics' lien by the lienor and to pay the amount of the judgment, if any, in favor of the lienor with interest, costs and allowances with the understanding that all amounts paid by the Authority shall constitute Additional Rent due and payable under this Sublease and shall be repaid to the Authority by the Museum immediately upon rendition of any invoice or bill by the Authority. The Museum shall not be required to pay or discharge any mechanics' lien so long as the Museum shall in good faith proceed to contest the lien by appropriate proceedings and if the Niuseum shall have given notice in writing to the Auihority of its intention to contest the validity of the lien and shall furnish reasonably satisfactory evidence that funds are or will be available to pay the amount of the contested lien claim with all interest on it and costs and expenses, including reasonable attorneys' fees to be incurred in connection with it. The Authority shall not be entitled to pay the lien or compel the prosecution of any action with respect thereto during any time that the Museum is contesting such lien. ARTICLE XI AUTHORITY'S INSPECTION AND RIGHT OF ENTRY Section 11.1 Inspection by Authority. The Authority shall have the right to make periodic reasonable inspections of all the Subleased Premises and improvements thereof, during normal Business Hours to determine if such are being maintained in a neat and orderly condition, and whether the Museum is operating in compliance with the terms and provisions of this Sublease. Section 11.2 Authority's lti hit of Enter. The Museum agrees to permit the Authority to enter upon the Subleased Premises at all reasonable times upon advance written notice, for any purpose the Authority deems necessary to, incident to, or connected with the performance of the Authority's duties and obligations hereunder or in the exercise of its rights and functions. The Authority's rights under this Article XI shall not unreasonably interfere with the operation of the Project. ARTICLE XII INDEMNIFICATION AND INSURANCE 19 01 772 Section 12.1 Indemnification by Museum. The Museum shall indemnify, protect, defend and hold harmless the Authority and the City, their officials and employees, from and against any and all claims, suits, actions, damages or causes of action of whatever nature arising out of the use or operation of the Subleased Premises, whether such claim shall be made by an employee or member of the Museum, an employee of the Authority, an employee- of the City, or by any third party, and whether it relates to injury to persons (including death) or damage to property and whether it is alleged that the Authority or the City, or their employees or officials were negligent; provided, however, that this indemnity shall not extend to or cover any claims, suits, actions, damages or causes of action arising out of the gross negligence or willful misconduct of the City or the Authority, or anyone acting by, through or under either of them. The Museum shall, at its own cost and expense, pay and satisfy all costs related to any orders, judgments or decrees which may be entered thereon, and from and against all reasonable costs, attorneys' fees, expenses and liabilities incurred in and about the defense of any such claims and the investigation thereof: The Museum shall further indemnify, defend, protect and hold the Authority and the City harmless from and against any and all claims arising from any breach or default in performance of any obligation on the Museum's part to be performed under the terms of this Sublease, or arising from any act, neglect, fault or omission of the Museum, its members, agents, contractors and employees, from and against all reasonable costs, attorneys' fees, expenses and liabilities incurred in connection with such claim or any action or proceeding brought thereon. In case any action or proceeding shall be brought against the Authority and/or the City by reason of any claim covered by the Museum's indemnity hereunder, the Museum upon notice from the Authority or the City shall defend the same at the Museum's expense by counsel approved in writing by the Authority and the City (such approval not to be unreasonably withheld). The Authority and the City reserve the right to defend themselves, provided that in actions against both they use the same counsel and the counsel selected is reasonably acceptable to the Museum. The Museum shall promptly notify the Authority and the City, in writing, of any claim or action tiled, of whatever nature, arising out of the use or operation of the Subleased Premises by the Museum, its members, agents, contractors or employees, which claim or action could result in liability fbr the City or the Authority. The Museum shall also promptly notify the Authority and the City if the Museum knows or has reason to believe a claim or action will be tiled, of whatever nature, arising out of the use or operation of the Subleased Premises by the Museum, its members, agents, contractors or employees, which claim or action could result in liability for the City or the Authority. Section 12.2 Insurance. During the period from the commencement of construction of the Project through the Completion Date, the Museum shall maintain the insurance coverage required of the Museum tinder the Development Agreement. The Museum, at its sole cost and expense, shall obtain and maintain in full force and effect at all times from and after the Completion Date and throughout the remaining Term of this Sublease and through any periods of extensions, the following insurance: 12.2.1 Commercial General Liability insurance on a comprehensive general liability coverage form, or its equivalent, including contractual liability, products and completed operations, personal injury, and premises and operations coverages against all 20 01..66 772 • 0 claims, demands or actions, bodily injury, personal injury, death or property damage occurring in, on or about the Subleased Premises with such limits as may be reasonably requested by the Authority froth time to time but not less than $2,000,000 per occurrence combined single limit for bodily injury and property damage. The Authority and the City shall be named as Additional Insureds on the policy or policies of insurance. 12.2.2 "All Risk" property insurance coverage against loss or damage by fire, windstorm, vandalism, malicious mischief, water damage to contents, sprinkler leakage and special coverage, insuring one hundred percent (100%) of the replacement cost of the ,Museum's alterations, improvements, fixtures, equipment, furniture, personal property, trade fixtures and floor coverings in and about the Subleased Premises. The City, the Authority and the Museum shall be named as i.oss Payees. 12.2.3 Flood insurance in the maximum amount available under the national' flood insurance program. 12.2.4 Automobile liability insurance covering all owned, non -owned and hired vehicles used in conjunction with operations covered by this Sublease. The policy or policies of insurance shall contain such limits as may be reasonably requested by the Authority from time to time but not less than $500,000 for bodily injury and property damage. The requirements of this provision may be waived upon submission of a written statement that no automobiles are used to conduct business. 12.2.5 Worker's Compensation insurance in the form and amounts required by State law. 12.2.6 The Authority and the City reserve the right to amend the insurance requirements by the issuance of a notice in writing to the Museum, provided that any new or amended requirements are consistent with industry standards for similar uses and facilities. The Museum shall provide any other insurance or security reasonably required by the Authority or the City. 12.2.7 "Elie policy or policies of insurance required shall be so written that the policy or policies may not be canceled or materially changed without thirty (30) days advance written notice to the Authority and City. Said notice should be delivered to the address indicated herein for the Authority and City or to such other address as may be designated by the Authority and City from time to time by written notice to the Museum and its insurer(s). 12.2.8 A current Evidence of Insurance and Policy of Insurance evidencing the aforesaid required insurance coverage shall be supplied to the Authority and the City on or before the Completion Date and a new Evidence and Policy shall be supplied at least twenty (20) days prior to the expiration of each such policy. Notwithstanding the foregoing, insurance policies may be provided as soon as same are available, in the event the insurance is bound, but actual policies have not been issued by the dates specified. Insurance policies required above shall be issued by companies authorized to do business under the laws of the State of Florida, with the following qualifications as to management and financial strength: the company should be rated "A" as to management, and no less than class "X" as to financial strength, in accordance with the latest edition of Best's Key Rating Guide. Receipt of any documentation of insurance by the Authority or the City or by any of their representatives which indicates less coverage than required does not constitute a waiver of the Museum's obligation to fulfill the insurance requirement herein. In the event the Museum shall fail to procure and place such insurance, the Authority may, but shall not be obligated to, procure and place same, in which event the amount of the premium paid shall be paid by the Museum to the Authority as Additional Rent upon demand and in each instance be collectible on the first day of the month or any subsequent month following the date of payment by the Authority. Failure to pay such amount within the time frame provided shall constitute a default of this Sublease as provided in Section 19.1 below. The Museum's failure to procure insurance shall in no way release the Museum from its obligations and responsibilities as provided herein. _ Section 12.3 Waiver of Subroization. The Museum waives all rights to recover against the Authority and the City or their officers, employees, agents and representatives, for any damage arising from any cause covered by any insurance required to be carried by the Museum, or any insurance actually carried by the Museum, except in the case of a loss resulting from the gross negligence or willful misconduct of the City, the Authority or anyone acting by, through or under either of them. The Museum shall cause its insurer(s) to issue appropriate waiver of subrogation rights endorsements to all policies of insurance carried in connection with the Subleased Premises. Section 12.E No Liability of Authority or City. Except to the extent caused by the gross negligence or willful misconduct of the City or the Authority, or anyone acting by, through or under either of them, the Authority and the City shall not be liable for injury or damage which may be sustained by a person, goods, wares, merchandise or other property of the Museum, or the Museum's employees, invitees, officers, agents and customers, or by any other person in or about the Subleased Premises caused by or resulting from any peril which may affect the Subleased Premises, including, without limitation, fire, steam, electricity, gas, water or rain, which may leak or flow from or into any part of the Subleased Premises, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the Subleased Premises whether such damage or injury results from conditions arising upon the Subleased Premises, or from other sources. ARTICLE XIII DAMAGE AND DESTRUCTION Section 13.1 Destruction of Subleased Premises. During the period from the commencement of construction of the Project through the Completion Date, the provisions of Article V of the Development Agreement shall govern with regard to the use of insurance proceeds and reconstruction of the Project after a casualty. 22 01 - 7'`IV 1 1 ] • From and after the Completion Date through the end of the Term, if the Building shall be damaged by fire or other casualty, the Museum shall promptly notify the Authority and the City of such damage and, subject to the provisions of Section 13.2 through 13.4 below, shall at its sole cost and expense, after settling any insurance claim, proceed with reasonable diligence, but in no event later than one hundred fifty (150) days following the casualty, to. commence to rebuild, replace and repair the Building to a condition comparable to the condition that existed prior to the casualty. The Museum shall diligently and continuously pursue such rebuilding, replacement and repair within a reasonable time based upon the extent of the repairs required. In the event more than 50% of the gross floor area of the Building is damaged, the Museum shall diligently and continuously pursue all rebuilding, replacement or repair work which shall be substantially completed not later than thirty (30) months following commencement of such work. Failure to commence or complete the repair, replacement or rebuilding within the time herein stipulated, subject to Unavoidable Delay, shall give the Authority the right to terminate this Sublease. All Rent due hereunder and all obligations to provide In Kind Services shall abate after the occurrence of a casualty until the date that the reconstruction work on the Subleased Premises is completed. Except to the extent caused by the gross negligence or willful misconduct of the Authority or anyone acting by, through or under it, the Authority shall not be liable for interruption to the Museum's business or for damage to or replacement or repair of the Museum's personal property (including, without limitation, inventory, trade fixtures, floor coverings, furniture and other property removable by the Museum under the provisions of this Sublease) or to any improvements installed in the Subleased Premises, resulting from a casualty. Section 13.2 Museum's Option to Terminate Lease. If (a) the Building is damaged as a result of any cause which is not covered by the Museum's insurance, or (b) the Building is damaged or destroyed in whole or in part during the last four (4) years of the Term, or (c) fifty percent (50%) or more of the Building's gross floor area is damaged, or (d) the insurance proceeds received are insufficient to complete the repairs, or (e) any Leasehold Mortgagee applies all ar a portion of the insurance proceeds to the repayment of the Leasehold Mortgage, or (f) the Museum is unable to obtain all of the governmental approvals required under Applicable Caws for the reconstruction of the Subleased Premises, then, in any of such events, the Museum may elect to terminate this Sublease by giving to the Authority notice of such election within ninety (90) days after the occurrence of the casualty. If such notice is given, the rights and obligations of the parties shall cease as of the date of such notice, and Rent (other than any Additional Rent due the Authority by reason of the Muscum's failure to perform any of its obligations hereunder prior to the date of such notice) shall be adjusted as of the date of such casualty. Section 13.3 Authority's Option to Terminate Lease. If (a) the Building is damaged or destroyed in whole or in part during the last four (4) years of the Term, and fifty percent (50%) or more of the Building's gross floor area is damaged, or (b) the rebuilding, replacement or repair work has not commenced or has not been completed within the time set forth in Section 13.1 above, then in any of such events, the Authority may elect to terminate this Sublease by giving to the Museum written notice of such election within ninety (90) days after the date of the failed condition. if such notice is given, the rights and obligations of the parties shall cease as of the date of such notice, and the Museum shall immediately vacate the Subleased Premises as if the "term had expired. 23 tt�� • �. Section 13.4 Termination of Interlocal Agreement. In the event that the Interlocal Agreement is terminated by either party thereto under Section 15.2 thereof, then this Sublease shall automatically terminate and be of no further force or effect. The Authority agrees to provide the Museum with a copy of any written notice of termination delivered by the Authority to the City, or the City to the Authority, under Section] 5.2 of the Interlocal Agreement. Section 13.5 Demolition and Reconstruction. If the Building shall be so substantially damaged that it is reasonably necessary in the Museum's judgment to demolish the Building for the purpose of reconstruction., the Museum may demolish the same. All restoration, repairs and reconstruction of the Building and other improvements on the Subleased Premises tinder this .Article shall be performed by the Museum in compliance with the terms and conditions of this Sublease governing repairs and Alterations; provided, however, that in the case of a casualty that damages or destroys more than .fifty percent (50%) of the Building, the Museum's restoration and reconstruction of the Building shall be performed under the same terms and conditions applicable to the initial construction of the Project under the Development Agreement, except to the extent the provisions thereof may no longer apply (such as, by way of example, the requirement for a major use special permit). Notwithstanding anything to the contrary, it is agreed that all reconstruction shall commence not later than one hundred fifty (150) days following the casualty and shall be completed not later than thirty (30) months thereafter, subject in each case to Unavoidable Delay. Section 13.6 Insurance Proceeds. If this Sublease is not terminated pursuant to Sections 13.2, 13.3 or 13.4, the Museum shall disburse and apply any insurance proceeds received by the Museum (or any separate funds of the .Museum, if the insurance proceeds are applied to any Leasehold Mortgages) to the restoration and rebuilding of the Building in accordance with this Article. If this Sublease is terminated pursuant to Section 13.2, 13.3 or 13.4, then the Authority and the City shall be entitled to receive all of the insurance proceeds subject to any rights of any Leasehold Mortgagee approved by the Authority. The rights of Leasehold Mortgagees approved by the Authority with respect to insurance proceeds shall be paramount to any other party. ARTICLE XIV EMINENT DOMAIN Section 14.1 Complete Permanent Taking. If the whole of the Subleased Premises, or a material portion thereof is taken under power of eminent domain or sold, transferred or conveyed in lieu thereof, this Sublease shall terminate and become null and void on the date the Museum is required to yield possession thereof to the condemning authority. Upon said termination, the parties shall be relieved of all duties, obligations and liabilities arising under this Sublease from and atter the date of termination. The award or awards of damages allowed to the Authority or the Muscum shall be paid as follows: 24 � � J0 First: There shall be paid all expenses, if any, including reasonable attorneys' fees, incurred by the Authority and the Museum in such condemnation suit or conveyance and, if the condemnation occurs prior to the Completion Date, the Museum shall be fully reimbursed for all construction financing proceeds theretofore disbursed (both by any Leasehold Mortgagee and/or by or on behalf of the Museum.); and Second: The Authority and the Museum shall be paid portions of the balance of said award or awards which are allocable to and represented by the value of their respective interests in the Subleased Premises and the Project as found by the court or jury in its condemnation award. Section 14.2 Partial Permanent Ta ina. In the event that less than all of the Subleased Premises shall betaken by condemnation or deed in lieu thereof and the Museum shall be of the good faith opinion that it is economically feasible to effect restoration thereof, then this Sublease and all the covenants, conditions and provisions hereunder shall be and remain in full force and effect as to all of the Subleased Premises not so taken. The Museum shall restore the Project so that it will be comparable to the Project prior to the condemnation, taking into consideration the fact of the condemnation, unless a Leasehold Mortgagee applies the condemnation award to its Leasehold Mortgage, in which event the Museum shall not be required to restore the Project. The award or awards of damages allowed the Authority and the Museum shall be paid to and received by the parties as follows: First: There shall be paid all expenses, if any, including reasonable attorneys' fees, incurred by the Authority and the Ntuscum in such condemnation suit or conveyance; Second: There shall be paid to the Museum the amount required to complete the restoration of the Project; and Third: The Authority and the Museum shall be paid portions of the balance of said award or awards which are allocable to and represented by the value of their respective interests in the Subleased Premises and the Project as found by the court or jury in its condemnation award. Section 14.3 `Cemporary Taking. In the event of temporary taking of all or any portion of the Subleased Premises for a period of thirty (30) days or less, then this Sublease shall not terminale. The Museum shall be entitled to receive the entire award made in connection with any such temporary taking. ARTICLE XV ASSIGNMENTS AND SUBLETTING Section 15.1 Assignment and Subletting of Subleased Premises. Except as specifically provided in Article XVI and Section 15.2 below, the Museum shall not, at any time 25 t-- 7 • 0 during the Perm of this Sublease, transfer, assign or sublet this Sublease, the term or estate hereby granted, or any interest' hereunder, nor enter into any license or concession agreements with respect thereto, nor permit any third party or parties other than the Museum, its authorized agents, employees, invitees and visitors to occupy the Subleased Premises or any portion thereof (hereinafter individually and collectively referred to as a ""Transfer") without first procuring the written consent of the Authority, which consent may be granted, conditioned or withheld in the sole discretion of the Authority. Any such attempted or purported Transfer, without the Authority's prior written consent, shall be void and of no force or effect, shall not confer any interest or estate in the purported transferee ("'Transferee"), shall constitute a deflault under this Sublease and shall permit the Authority, at its election, to terminate this Sublease. For purposes of this Section, any change in the status of the Museum so that it shall cease to be a not-for-profit entity shall constitute an unauthorized transfer. Notwithstanding the foregoing, the Authority recognizes that the Museum may assign the Sublease to, or may otherwise merge or consolidate its operation with, another not-for-profit museum organization. Stich assignment, merger or consolidation shall be subject to the consent of the Authority, which consent shall not be unreasonably withheld, conditioned or delayed, and is subject to the Property continuing to be used for the purpose authorized under this Sublease The Museum shall provide all documents concerning such 'Transfer to the Authority for its review including, but not limited to, the relevant experience of the new entity, makeup of the new entity and evidence of non-profit status. It is agreed that all terms and conditions of this Sublease shall extend to and be binding on all Transferees as may be approved by the Authority. Unless released by the Authority or released under Section 15.4, the Museum shall be liable for acts and omissions by any "Transferee affecting this Sublease. The Authority reserves the right to directly terminate any Transferee for any cause for which the Museum may be terminated. The Museum shall reimburse to the Authority, as Additional Rent, all costs and expenses, including reasonable attorneys' fees, which the Authority incurs by reason of or in connection with a 'Transfer, and all negotiations and actions with respect thereto, such Additional Rent to be due and payable within thirty (30) days of receipt of a statement of such costs and expenses from the Authority. Section 15.2 Permitted "Transfers. The Authority recognizes that the Museum may not operate on its own certain elements of the Project, such as the restaurant and gift shop. Accordingly, notwithstanding the terms of Section 15.1, the Museum shall be entitled to enter into licenses, concession agreements, management agreements, employment and other similar agreements and arrangements with a "Transferee for the purpose of implementing any use, operation or activity permitted under this Lease, without the consent of the Authority. By way of example (and not limitation), the Museum may enter into a separate license, concession or operating agreement with a third party for the purpose of operating the restaurant/snackbar, the gift shop and/or the photo concession, without the consent of the Authority, so long as the agreement governing the relationship of the Museum and such party (i) automatically terminates if this Sublease is terminated for any reason, (ii) requires such party to carry insurance customary for similar operators and operations and shall list the Authority and City as Additional Insureds, 26 oil. y 772 (iii) is subordinate to this Sublease, and (iv) provides a service expressly permitted under this Sublease. if requested by the Authority, the Museum shall provide to the Authority copies of all sub -subleases, licenses, concession agreements, management agreements, employment and other similar agreements, and amendments thereto. Section 15.3 Acceptance of Rent from Transferee. The acceptance by the Authority of the payment of Rent following any "Transfer prohibited by this Article XV shall not be deemed to be a consent by the Authority to any such Transfer, nor shall the same be deemed to be a waiver of any right or remedy of the Authority hereunder. Section 15A No Release of Museum. Any assignment, sub -sublease, pledge, encumbrance of this Sublease or Transfer in violation of this Sublease or without the Authority's prior written consent (when consent is required under the terms hereof), shall at the option of the Authority, constitute a default of this Sublease. A Transfer of all of the Museum's interest under this Sublease permitted by this Article XV and approved by the Authority shall release the Museum from the obligation to pay the Base Rent, Additional Rent and to perform all other obligations of the Museum under this Sublease. The Authority's acceptance of Rent from any other person is not a waiver of any provision of this Article XV. Consent to one transfer is not a consent to any subsequent transfer. If the Museum's Transferee defaults under this Sublease and the Museum has not otherwise been released from liability hereunder, the Authority may proceed directly against the Museum without pursuing remedies against the Transferee, or against the Transferee and then also proceed directly against the Museum under this Sublease. Any action by the Authority against the Museum shall not release the Transferee. The Authority may consent to subsequent Transfers or modifications of this Sublease by the Museum's Transferee, without notifying the Museum or obtaining its consent. Such action shall not relieve the Museum's liability under this Sublease or the liability of the Transferee. Section 15.5 Event of Bankruptcy. If this Sublease is assigned to any person or entity pursuant to the provision of the United States Bankruptcy Code, 1 I U.S.C. §§ 101 ct seq. or any successor thereto (the "Bankruptcy Code"), any and all monies or other consideration payable or otherwise to be delivered in connection with such assignment shall be paid or delivered to the Authority, shall be and remain the exclusive property of the Authority, and shall not constitute the property of the Museum or of the estate of the Museum within the meaning of the Bankruptcy Code. Any and all monies or other considerations constituting the Authority's property under this Section not paid or delivered to the Authority shall be held in trust for the benefit of the Authority and shall be promptly paid or delivered to the Authority. Any person or entity to which this Sublease is assigned pursuant to the provisions of the Bankruptcy Code shall be deemed without further act or deed to have assumed all of the obligations arising under this Sublease on and after the date of such assignment. Any use of the Property in violation of the provisions of this Sublease shall result in the immediate, automatic termination of this Sublease, it being the intent of this agreement that the Property be used exclusively for the purposes herein authorized and as permitted under the Decd Restrictions. ARTICLE XVI MORTGAGE FINANCING; RIGHTS OF MORTGAGEE 27 W 172 • 1 • Section 16.1 Leasehold Mortgages. The Museum, and any successor or assign of the Museum, may, from time to time pledge, mortgage or encumber the Leasehold Estate and any other interests of the Museum under this Sublease to a Leasehold Mortgagee. Any such pledge, mortgage or encumbrance upon the Leasehold Estate demised hereunder, as the same may be extended, modified, amended or replaced, is herein referred to as a "Leasehold Mortgage." The Museum's right to place a Leasehold Mortgage against the Museum's leasehold estate is subject to the Museum not being in default under this Sublease at the time a Leasehold Mortgage is made. Any Leasehold Mortgage shall by its terms be made expressly subject to all of the Authority's rights under the provisions, covenants, conditions, exceptions and reservations herein contained. The Leasehold Mortgage documents shall expressly provide that the Leasehold Mortgagee notify the Authority of default by the Museum under the Leasehold Mortgage prior to commencing foreclosure proceedings. The Authority shall not be bound to recognize any Leasehold Mortgagee or to give any Leasehold Mortgagee the notices, rights and protections contemplated under this Sublease unless such Leasehold Mortgagee or the Museum shall have notified the Authority of the existence of such Leasehold Mortgage and of the name and United States address of such Leasehold Mortgagee. The Museum shall deliver to the Authority promptly after execution by the Museum a true and verified copy of any Leasehold Mortgage, and/or any amendment, modification or extension thereof, together with the name and address of the owner and holder thereof. The Museum may not encumber the Lcasehold Estate as security for any indebtedness of the Museum the proceeds of which are used to finance any other property (i.e. other than the Subleased Premises) now or hereinafter owned or operated by the Museum. Section 16.2 Rights of Leasehold Mortga ccs. The Authority hereby agrees with and for the benefit of each Leasehold Mortgagee and the successors and assigns of each Leaselold Mortgagee: (a) When giving notice to the Museum with respect to any default under this Sublease or any exercise of any right to terminate this Sublease, the Authority, if so requested by a Leasehold Mortgagee under Section 16.1 above, will also give a copy Of such notice to each Leasehold Mortgagee at the address of cacti Leasehold Mortgagee furnished to the Authority, and no such notice to the Museum shall be deemed to have been duly given nor shall such notice be effective unless such notice is also given in said manner to each such Leasehold Mortgagee. (b) In case the Museum shall default in respect of any of the provisions of this Sublease, any Leasehold Mortgagee shall have the right, but not the obligation, to cure such default whether the same consists of the failure to pay Base Rent or the failure to perform any other covenant which the Museum is required to perform under this Sublease, and the Authority shall accept performance by or on behalf of such Lcasehold Mortgagee as though, and with the same effect as if, the same had been done or performed by the Museum. A Leasehold Mortgagee will have a period of time after the service of such notice upon it within which to cure the default specified in such notice, or cause it to be cured, which is the same period for cure, if any, as is given to the Museum under this Sublease in respect of the specified default after the giving of such notice to the Museum, plus an additional period of thirty (30) days. In the event of a default (or in the event that the Authority is seeking to terminate this Sublease by reason of a default) which is curable without Leaschold Mortgagee being in possession and control of the Building, but cannot reasonably be cured within said period, the period of time for cure shall be extended for so long as any Leasehold Mortgagee is diligently and continuously proceeding to attempt to cure such default, provided that the Leasehold Mortgagee has begun proceedings to cure the default within the said period. In no event shall a default due to a failure to pay Base Rent or Additional Rent be deemed a default which cannot be reasonably cured within such additional period of thirty (30) days. (c) With respect to any nonmonetary default by the Museum under this Sublease that is not susceptible of being cured by the Leasehold Mortgagee without being in possession and control of the Building, the Authority shall take no action to terminate this Sublease on account of such default if, within ninety (90) days after notice of the default from the Authority (subject to any bankruptcy stays), the Leasehold Mortgagee shall have commenced appropriate proceedings to obtain possession of the Subleased Premises (including possession by a receiver) or to foreclose the Leaschold Mortgage or otherwise to acquire the Museum's interest under this Sublease and the Subleased Premises, and shall thereafter be prosecuting the same to completion in good faith, with diligence and continuity (subject to any bankruptcy stays); provided, however, that: (i) the Leasehold Mortgagee shall not be obligated to continue any such possession or to continue such foreclosure proceedings or other action after the default shall have been cured; (ii) the Authority shall not be precluded from exercising any rights or remedies with respect to any other default by the Museum under this Sublease during the pendency of such foreclosure proceedings; (iii) during the period of the Authority's forbearance, the Leasehold Mortgagee shall comply with such of the terms, covenants and conditions of this Sublease as are then susceptible of compliance by the Leaschold Mortgagee; (iv) if and after the Leasehold Mortgagee obtains possession of the Subleased Premises or acquires the Museum's interest under this Sublease, the Leasehold Mortgagee shall promptly commence and diligently pursue the curing of all defaults tinder this Sublease then susceptible of being cured by the Leaschold Mortgagee, and all other defaults of the Museum not then susceptible of being cured by the Leasehold Mortgagee shall be deemed to have been waived by the Authority upon completion of such foreclosure proceedings or acquisition by the Leasehold Mortgagee; and (v) if a third party acquires the Museum's interest under this Sublease at the foreclosure sale, such party shall promptly continence and diligently pursue the curing of all defaults under this Sublease then susceptible of being cured by such party, and all other defaults of the Museum not then susceptible of being cured by such party shall be deemed to have been waived by the Authority upon such acquisition. (d) Notwithstanding any provision in this Section 16.2 to the contrary, no Leasehold Mortgagee shall have the right or an opportunity to cure a breach or violation of the Deed Restrictions by the Museum, the occurrence of which shall cause an automatic termination of this Sublease as provided in Section 3.3 herein. 29 0J.— (e) A Leasehold Mortgagee (or its designee or nominee) may become the legal owner and holder of the interest of the Museum under this Sublease, including, without limitation, ownership of the Project, by foreclosure or other enforcement proceedings, or by obtaining an assignment of this Sublease in lieu of foreclosure or through settlement of or arising out of any pending or threatened foreclosure proceeding, without the Authority's consent, subject always to the applicable terms and provisions of this Sublease. (f) The Authority agrees that in the event of termination of this Sublease for any reason (other than a default by the Museum beyond the applicable cure period, for which Leasehold Mortgagee was provided notice and an opportunity to cure in accordance with this Article), that the Authority will enter into a new lease of the Subleased Premises with Leasehold Mortgagee or its designee for the remainder of the Term, effective as of the date of such termination, at the rent and upon the terms, provisions, covenants and agreements as herein contained, provided: (i) Leasehold Mortgagee, or its designee, shall make written request upon the Authority for such new lease within thirty (30) days after the Authority has given Leasehold Mortgagee notice of such termination. (ii) Said written request shall be accompanied by payment of all past due rents and other charges owing to the Authority hereunder of which Leasehold Mortgagee shall have been given notice, and, thereafter Stich monetary obligations shall be maintained current through the time of the execution and delivery of said new lease. (iii) The lessee under such new lease shall automatically have the same right, title. and interest in and to the Subleased Premises as the Museum had under the terminated Sublease. (iv) The new lease does not violate the Deed Restrictions. (g) The Authority agrees, promptly after submission, to execute, acknowledge and deliver any agreements modifying this Sublease and the Development Agreement requested by any Leaselold Mortgagee, provided that such modifications do not decrease the Museum's obligations, or increase the Museum's rights, or decrease the Authority's rights. (h) The provisions of this Article XVI in favor of the Leasehold Mortgagee shall inure to the benefit of the Leasehold Mortgagee and its successors, assigns and designees, and also any other purchaser or transferee of this Sublease pursuant to any foreclosure or bankruptcy proceedings, or assignment in lieu thereof. (i) Notwithstanding any contrary provision of this Sublease, the Leasehold Mortgagee shall not be liable or responsible in any respect for any of the Museum's obligations under this Sublease unless and until the Leasehold Mortgagee becomes the owner and holder of this Sublease through foreclosure or bankruptcy proceedings, or assignment in lieu thereof. 30 h Section 16.3 Notices to/froth Leasehold Mortgagees.. Any notice or other communication which the .Authority shall desire or is required to give to or serve upon Leasehold Mortgagee shall be in writing and shall be served personally or by overnight courier service (such as Federal Express or UPS) addressed to such Leasehold Mortgagee at its address as set forth in the notice to the Authority, or at such other address as shall be designated from time to time by such holder by. notice in writing given to the Authority. Any notice or other communication which any Leasehold Mortgagee shall desire or is required to give to or serve upon the Authority shall be deemed to have been given or served if sent as set forth in the provisions of this Sublease providing for notices to the Authority. Section 16.4 Lease Modifications, The Authority will not modify, amend or accept a surrender of this Sublease without the prior written consent of the Leasehold Mortgagee. Any such modification, amendment or surrender without the written consent of the Leasehold Mortgagee, which consent shall not be unreasonably delayed or withheld, of which the Authority has been given notice shall be void and of no force or effect. Notwithstanding any provision in this Sublease to the contrary, the Authority's right to terminate this Sublease shall be limited by the provisions of Section 16.2. ARTICLE XVII OWNERSHIP Or IMPROVEMENTS As of and from the Possession Date through the expiration of the Term, title to all buildings and improvements on the Subleased Premises shall not vest in the Authority or the City, but shall be held by and vest in the Museum. The Museum shall be entitled to claim depreciation on the Building for all taxation purposes. Furthermore, title to all Alterations made in or to the Subleased Premises during the Term shall, unless otherwise provided by written agreement, be and upon their completion become the property of the Museum, but at the end of the Term shall remain and be with the Building and the Subleased Premises. Upon expiration or termination of the Term title to the buildings and improvements shall vest in the City. Any furniture, furnishing equipment or other articles of movable personal property owned by the Museum and located in the Subleased Premises, shall be and shall remain the property of the Museum and may be removed by it at any time. during the 'term of this Sublease. However, if any of the Museum's property is removed during or at the end of the 'Perm, and such removal causes damage to the Subleased Premises, the Museum shall repair such datnage at its sole cost and expense. Any property belonging to the Museum and not removed by the Museum at the expiration or earlier termination of the Sublease, shall at the election of the Authority, be deemed to be abandoned by the Museum, and the Authority may keep or dispose of such property and restore the premises to good order within ten (10) days after disposal (if that be the case). At the expiration of the term of this Sublease, the Museum shall deliver to the Authority the keys and combination to all safes, cabinets, vaults, doors and other locks left by the Museum on the Subleased Premises, 31 O f — 712 ARTICLE XVIII SIGNAGE; WATSON-ISLAND ASSOCIATION Section 18.1 Building Signage. The Museum, at its sole cost and expense, may install identification signage on the Building in accordance with the plans attached to the approved MUSP, provided that the Museum complies with all Applicable Laws and legal requirements, including the requirements set forth in the City of Miami Code and Zoning Ordinance. The Museum agrees to comply with any future signage criteria adopted for Watson Island with respect to any signage installed by the Museum after the date of the adoption of such signage criteria. During the Term, the Project shall always be luiow as, and named, the "Miami Children's Museum", which name shall be prominently displayed on any signage on the Building. Upon the expiration or earlier termination of this Sublease, for any reason, the Museum shall, at its sole cost and expense, remove and dispose of all signs located on the Building or the Subleased Premises, and shall repair any damage caused by such removal. The Museum's intention with respect to signage for the Project shall be included in the scope of work during construction of the Building. All signage on the exterior of the Building shall be subject to the approval of the City, which shall not be unreasonably withheld or delayed. Section 18.2 Watson Island Signage System. The Museum understands that the City desires to provide a neat and consistent look to all directional signs placed on the rights-of-way adjacent to Watson Island and on Watson Island through an island -wide signage system. Accordingly, the City will, at the City's expense, develop a pathfinder/directional-type signage system, directing visitors to the various sites on Watson Island, by a graphic design firm selected by the City. The cost of fabrication and installation of the City's signage system for Watson Island (the "Directional Signage Costs") shall be shared by all of the parties benefiting from the signage on a pro rata basis, and the Museum agrees to pay its pro rata share thereof. The Museum's obligations hereunder are purely monetary, and it shall have no responsibility whatsoever for the design, fabrication or installation of the City's directional signage system. Section 18.3 Watson Island Association. The Museum acknowledges the City's intent to form an association that will have, as its primary purpose, the promotion and marketing of Watson Island, the maintenance and administration of common areas, and the enforcement of all existing and future rules and regulations affecting the island, including, by way of example, landscaping and directional signage guidelines. The Museum agrees it shall participate in, and contribute financially to, the establishment and operation of the Watson Island Association, so long as the association does not impose an unreasonable financial burden on the Museum. It is hereby agreed that the costs passed through to the Museum through the Waston Island Association shall not include the cost of installation of infrastructure (i.e., roadways, utilities and the like) on Watson Island. 'rhe amount of the Museum's contribution, and that of all other occupants or tenants in Watson Island, shall be established by the City in an equitable, non- discriminatory and reasonable manner. The parties acknowledge that the existing tenants of Watson Island (other than the Museum) are not currently obligated to participate in the Watson Island Association. In no event shall the Museum's contribution include (i) costs and expenses associated with or relating solely to the tenants of portions of Watson Island not participating in the Watson Island Association, or (ii) assessments that would have been made against such non - 32 0j"` 772 participating tenants if they had agreed to participate in the association. The City small disclose to the Museum in writing the manner in which it has established the Museum's contribution and the basis therefor. The Museum shall have the right to review the invoices, paid receipts and other supporting documentation for the costs and expenses for which it is being assessed by the association. Section 18.4 Expense Pass-Throuu:hs. The Authority agrees that the Museum shall not be double -charged for any expenses passed through to the Museum under this Sublease. Accordingly, the Museum shall pay for each such expense in accordance with the terms hereof one time only, notwithstanding that one or more sections of this Sublease may address the same item of expense. ARTICLE XIX DEFAULT PROVISIONS Section 19.1 Events of Default - Museum (a) Events of Museum's Default. Each of following events is defined as an "Event of Museum's Default": (i) The failure of the Iviuseum to pay any installment of Rent when due and the continuance of the failure for a period of' thirty (30) days after notice in writing from the Authority to the Museum; (ii) The failure of the Museum to perform any of the other covenants, conditions and agreements of this Sublease on the part of the iviuseum to be performed; and the continuance of the failure for a period of thirty (30) days after notice in writing (which notice shall specify the respects in which the Authority contends that the Museum has failed to perform any of the covenants, conditions and agreements) from the Authority to the Museum, unless with respect to any default which cannot be cured within thirty (30) days, the Museum, or any person holding by, through or under the Museum, in good faith, promptly after receipt of written notice, shall have commenced and continued diligently to reasonably prosecute all action necessary to cure the default; (iii) The filing of an application by the Museum: (1) for a consent to the appointment of a receiver, trustee or liquidator of itself or all its assets; (2) of a voluntary petition in bankruptcy or the filing of a pleading in any court of record admitting in writing its inability to pay its debts as they conic due; (3) of a general assignment for the benefit of creditors; or (4) of an answer admitting the material allegations of, or its consenting to, or defaulting in answering, a petition filed against it in any bankruptcy proceeding; or (iv) The entry of an order, judgment or decree by any court of competent jurisdiction, adjudicating the Museum as bankrupt, or appointing a receiver, trustee or liquidator of it or of its assets, and this order, judgment or decree continuing 33 of- 772 unstayed and in effect for any period of one hundred eighty (184) consecutive days, or if this Sublease is taken under a writ of execution. In the event this Sublease is assumed by or assigned to a trustee pursuant to the provisions of the Bankruptcy Code and the trustee shall cure any default under this Sublease and shall provide adequate assurances of future performance of this Sublease as are required by the Bankruptcy Code (including, but not limited to, the requirement of Section 365(b)(1)) (referred to as "Adequate Assurances"), and if the trustee does not cure such default and provide such Adequate Assurances under the Bankruptcy Code within the applicable time periods provided by the Bankruptcy Code, or in the event that the Property ceases to be used for the purposes authorized or intended under this Agreement, then this Sublease shall be deemed rejected automatically and the Authority shall have the right immediately to possession of the Subleased Premises and shall be entitled to all remedies provided by the Bankruptcy Code for damages for breach or termination of this Sublease. (b) Remedies in Event of Museum's Default. The Authority may treat any one or more of the Event(s) of Museum's Default as a breach of this Sublease, and thereupon at its option, without further notice or demand of any kind to the Museum or any other person, the Authority shall have, in addition to every other right or remedy existing at law or equity, the right to immediately terminate the Museum's right of possession under this Sublease and to collect any other sum of money and damages due under the terms of this Sublease through the date of such termination. (c) Waivers and Surrenders to be in Writing. The receipt of Rent by the Authority, with knowledge of any breach of this Sublease by the Museum or of any default on the part of the Museum in the observance or performance of any of the conditions, agreements or covenants of this Sublease, shall not be deemed to be a waiver of any provision of this Sublease. Notwithstanding the foregoing, the Authority must advise the Museum forthwith in writing of any breach of this Sublease which the Authority has knowledge of. No failure on the pail of the Authority to enforce any covenantor provision contained in this Sublease, or any waiver of any right under it by the Authority, unless in writing, shall discharge or invalidate such covenant or provision or affect the right of the Authority to enforce it in the event of any subsequent breach or default. No covenant or condition of this Sublease shall be deemed to have been waived by the Authority unless the waiver be in writing. The consent of the Authority to any act or matter must be in writing and shall apply only with respect to the particular act or matter to which the consent is given and shall not relieve the Museum from the obligation, wherever required under this Sublease, to obtain the consent of the Authority to any other act or matter. The receipt by the Authority of any Rent or any other sum of money or any other consideration paid by the Museum after the entry of a judgment granting possession of the Subleased Premises to the Authority, shall not reinstate or continue the Term demised unless so agreed to in writing. Section 19.2 Events of Default —Authority. 34 01, 7 2 (a) Events of Authority's Default. The failure of the Authority to perform any of the covenants, conditions and agreements of this Sublease which are to be performed by the Authority and the continuance of such failure for a period of thirty (30) days after notice thereof in writing from the Museum to the Authority (which notice shall specify the respects in which the Museum contends that the Authority has failed to perforni any of such covenants, conditions and agreements), and unless such default be one which cannot be cured within thirty (30) days and the Authority within such thirty (30) day period shall have commenced and thereafter shall continue diligently to prosecute all actions necessary to cure such defaults, such failure shall constitute an "Event of Authority's Default". (b) Remedies in Event of Authority's Default. If an Event of Authority's Default shall occur, the Museum may treat any one or more of the l3vent(s) of Authority's Default as a breach of this Sublease, and thereupon at its option, by serving written notice on the Authority, the Museum shall have, in addition to every other right or remedy existing in equity, the right to a writ of mandamus, specific performance, injunction or other similar relief, available to it under applicable law against the Authority (including any or all of the members of its governing body, and its officers, agents or representatives); provided, however, that in no event shall any member of such govenning body or any of its officers, agents or representative be personally liable for any of the Authority's obligations to the Museunt hereunder. It is understood and agreed that in no event shall the Authority be liable for monetary damages. Section 19.3 Mitiiation. The Authority and the Museum hereby expressly acknowledge and agree that each shall have an affirmative obligation to mitigate their respective damages as a consequence of a default by the other. Section 19.4 Unavoidable Delay. For the purpose of any of the provisions of this Sublease, neither the Authority nor the Museum, as the case may be, shall be considered in breach of or in default in any of its obligations tinder this Sublease in the event of unavoidable delay in the performance of any such obligations due to strikes, lockouts, acts of God, inability to obtain labor or materials or settle insurance claims due to governmental restrictions, enemy action, civil commotion, fire, hurricane, flood, casualty, or other similar causes beyond the reasonable control of a party (collectively, "Unavoidable Delay"), but not including such party's insolvency of financial condition, it being the purpose and intent of this Section that in the event of the occurrence of any such Unavoidable Delay, the time or times for the performance of the covenants and provisions of this Sublease shall be extended for the period of unavoidable Delay; provided, however, that the party seeking the benefit of the provisions of the Section shall, within thirty (30) days after such party shall have become aware of such Unavoidable Delay, give written notice to the other party thereof of the cause or causes thereof and the time anticipated to be delayed. Section 19.5 Termination. In the event that this Sublease is terminated by the Authority for any reason expressly permitted hereunder, it is understood and agreed that neither the city nor the Authority shall have any liability whatsoever, linancial or otherwise, to the Museum for any matter whatsoever relating to the termination or the use of the Property, 35 j CIO 1 041 including specifically, without limiting the generality of the foregoing, liability for any expenses incurred by the Museum in connection with the construction or operation of the Project. ARTICLE XX NOTICES All notices or other communications which shall or may be given pursuant to this Sublease shall be in writing and shall be delivered by personal service or by certified mail addressed to the patties at their respective addresses indicated below or as the same may be changed in writing from time to time. Such notice shall be deemed given on the day on which personally served, or if by certified mail, on the fifth (5"') day after being posted or the date of actual receipt, whichever is earlier. NOTICE 10 THE, AUTHORITY: Miami Sports & Exhibition Authority c/o City of Miami 444 S.W. 2 Avenue, 91h Floor Miami, F], 33130 Attn: Executive Director WITH COPY TO: NOTICE TO THE MUST" UM: Miami Children's Museum, Inc. 701 N.W. 1 st Avenue Miami, FI, 33136 Attn: President WITH COPY TO: City of Miami Greenberg Traurig, P.A. 444 S.W. 2nd Avenue, 10`►' Floor 1221 Brickell Avenue Miami, F1 33130 Miami, FT. 33131 Attn: City Manager Attention: Nancy B. Lash, Esq. Adrienne Pardo, Esq. ARTICLE XXI QUIET ENJOYMENT The Authority represents, warrants and covenants that the Museum, upon paying the Rent and all other charges, and perfonning all the covenants and conditions of this Sublease, shall lawfully and quietly hold, occupy and enjoy the Subleased Premises during the 'Perin without hindrance or molestation by the Authority or any persons claiming under the Authority. ARTICLE XXII ESTOPPEL CERTIFICATES The Museum and the Authority shall, at any time and from time to time, within fifteen (15) days after written request by the other, execute, acknowledge and deliver to the party which has requested the same, a certificate stating that: (i) this Sublease is in full force and effect and 1 772 36 • 0 has not been modified, supplemented or amended in any way, or, if there have been modifications, this Sublease is in full force and effect as modified, Identifying such modification agreement, and if this Sublease is not in full force and effect the certificate shall so state the reasons why; (ii) this Sublease as modified represents the entire agreement between the parties as to this leasing or, if it does not, the certificate shall so state why; (iii) the dates on which the term of this Sublease commenced and is scheduled to terminate; (iv) all conditions under this Sublease to be performed by the Museum or the Authority, as the case may be, have been satisfied and, as of the date of such certificate, there are no existing; defenses or offsets which the Museum or the Authority, as the case may be, has against the enforcement of this Sublease by the other party, or, if such conditions have not been satisfied or if there are any defenses or offsets, the certificate shall so state; and (v) the rental due and payable for the year in which such certificate is delivered has been paid in full, or, if it has not been paid, the certificate shall so state. If so requested, the parties will also execute, acknowledge and deliver a similar estoppel certificate with regard to the Development Agreement. The party to whom any such certificate shall be issued may rely on the matters therein set forth and thereafter the party issuing the same shall be estopped from denying the veracity or accuracy of the same. ARTICLE XXIIT REMEDIES CUMULATIVE Section 23.1 Remedies Cumulative. No remedy conferred upon or reserved to the Authority or the Museum shall be considered exclusive of any other remedy, but shall be cumulative and shall be in addition to every other remedy given under this Sublease or existing at law or in equity or by statute; and every power and remedy given by this Sublease to the Authority or the Museum may be exercised from time to time acid as often as occasion may arise, or as may be deemed expedient by the Authority or the Museum. No delay or omission of the Authority or the Museum to exercise any right or power arising froth any default shall impair any right or power, nor shall it be construed to be a waiver of any default or any acquiescence in it. The rights of the Authority under this Sublease shall be cumulative and the failure on the part of the Authority to exercise properly any rights given hereunder shall not operate to forfeit any of the said rights. Section 23.2 Waiver of Remedies Not To Be Inferred. No waiver of any breach of any of the covenants or conditions of this Sublease shall be construed to be a waiver of any other breach or to be a waiver of, acquiescence in, or consent to any further or succeeding breach of the same or similar covenant or condition. ARTICLE XXIV SURRENDER AND HOLDING OVER Section 24.1 Surrender at End of Term. On the last clay of the Term, the Museum shall peaceably and quietly leave, surrender and deliver the entire Subleased Premises to the Authority, together with any ancl,all alterations, changes, additions and other improvements 37 ot— 772 0 • made upon the Subleased Premises, and together with any and all improvements, trade fixtures, machinery, equipment or other personal property of any kind or nature which the Museum may have affixed to the Subleased Premises for use in connection with the operation and maintenance of the Subleased Premises (whether or not the property is deemed to be fixtures), other than the Museum's exhibits which may be wholly or partly affixed to the Building's interior walls and movable personal property (which the Museum is entitled to freely remove pursuant to and subject to the terms of Article XVII, in which case the Museum shalt repair any damage caused by such removal), in their "as is" condition, free and clear of any and all subleasehold mortgages, liens, encumbrances and claims. If the Subleased Premises are not so surrendered, the Museum shall repay the Authority for all expenses which the Authority shall incur by reason of it, and in addition the lvluseum shall lndenlnlfy, defend and hold harmless the Authority from and against all claims made by any succeeding tenant against the Authority, founded upon delay occasioned by the failure of the Museum to surrender the Subleased Premises. Section 24.2 Rights Upon Holding Over. At the termination of this Sublease by lapse of time or otherwise, the Museum shall yield up immediate possession of the Subleased Premises to the Authority and, failing so to do, agrees, at the option of the Authority, to pay to the Authority for the whole time such possession is withheld a sum per day equal to $500. The provisions of this Article XXIV shall not be held to be a waiver by the Authority of any right of entry or reentry as set forth in this Sublease, nor shall the receipt of a sum, or any other act in apparent affirmance of the tenancy, reinstate, continue or extend the Term or otherwise limited or affect any other remedies available to the Authority hereunder. ARTICLE XXV MISCELLANEOUS PROVISIONS Section 25.1 Lngress and Egress. Subject to rules and regulations, statements and ordinances, and terms of this Sublease governing the use of the Subleased Premises, the Museum, its patrons, employees, licensees, visitors and all other invitees shall have ingress and egress to and from the Subleased Premises. Section 25.2 Assignability and Binding_ Effects. Subject to all provisions respecting the rights of assignment or subleasing, this Sublease shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. Section 25.3 Amendments. The Authority and the Museum by mutual agreement shall have the right but not the obligation to amend this Sublease. Such amendments shall be effective only when signed by the Authority and the Museum, and consented to by the City, and shall be incorporated as a part of this Sublease. Section 25.4 Award of Agreement. The Museum warrants that it has not employed or retained any person employed by the Authority to solicit or secure this Sublease and that it has not offered to pay, paid, or agreed to pay any person employed by the Authority any fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or resulting from the award of this Sublease. 1. 38 0J.— 772 Section 25.5 Construction of Agreement, This Sublease shall be construed and enforced according to the laws of the State of Florida. Section 25.6 Waiver of Jury Trial. The Parties hereby knowingly, irrevocably, voluntarily and intentionally waive any right either may have to a trial by jury in. respect of any action, proceeding or counterclaim based on this Sublease, or arising out of, under or in connection with this Sublease or any amendment or modification of this Sublease, or any other agreement executed by and between the parties in connection with this Sublease, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any Party hereto. This waiver of jury trial provision is a material inducement for the Authority and the Museum entering into this Sublease. Section 25.7 Severability. If any provision of this Sublease, or any paragraph, sentence, clause, phrase, or word, or the application thereof, is held invalid, the remainder of this Sublease shall be construed as if such invalid part were never included herein and this Sublease shall be and remain valid and enforceable to the fullest extent permitted by law. Section 25.8 Time of Essence as to Covenants of Sublease. Subject to any extensions expressly provided with respect thereto, time is of the essence as to the performance of the provisions of this Sublease by the Museum and the Authority. Section 25.9 Ca tions. The captions contained in this Sublease are inserted only as a matter of convenience and for reference and in no way define, limit or prescribe the scope of this Sublease or the intent of any provisions thereof. Section 25.10 Conditions and Covenants. All the provisions of this Sublease shall be deemed and construed to be conditions as well as covenants, as though the words specifically expressing or importing covenants and conditions were used in each separate provision. Section 25.11 Museum's Obligations Survive _Termination. All obligations of the Museum hereunder not fully performed as of the expiration or earlier termination of the Term of this Sublease shall survive the expiration or earlier termination of the 'Perm hereof, including, without limitation, all payment obligations and all obligations concerning the condition of the Subleased Premises, Section 25.12 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 time. 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 public health unit. Section 25.13 Recording-, Documentary Stamps. The cost of recording the Memorandum of Sublease attached hereto as Exhibit B, any State of Florida documentary stamps which legally must be attached to said Memorandum (if any), and the applicable Miami -Dade County and State transfer tax (if any), shall be paid in full by the Museum. 39-� • • Section 25.14 Duplicate Originals. This Sublease may be executed in any number of copies, each of which shall constitute an original of this Sublease. Section 25.15 Third Party Beneficiaries, The City is a third party beneficiary of this Sublease and has the right to sue to enforce performance of any of the Museum's obligations under this Sublease. The Museum acknowledges that when the City acts or exercises any rights or obligations under this Sublease, including without limitation the specific approval and consent rights of the City set forth herein, it is doing so in its capacity as the fee owner of the Property and not as a municipality, and that the role of the City as a municipality is separate and distinct from the role of the City as the fee owner of the Property under this Sublease. Section 25.16 Non -disturbance and Attonlment/City. The cancellation of the Interlocal Agreement by the parties thereto shall not interfere with the rights of the Museum under this Sublease as provided in and subject to the terms of Article 21 of the Interlocal Agreement. Nevertheless, the Authority covenants and agrees to deliver to the Museum, within thirty (30) days after the Museum's request therefor, a non -disturbance agreement from the City, providing that in the event of a termination of the Interlocal Agreement, except as provided in Section 2.6.4 hereof, the possession of the Museum (and, likewise, that of its Sub -subtenants) shall not be disturbed so long, as the Museum shall not be in default tinder this Sublease beyond any applicable notice and curative period, and containing such other provisions as may be reasonably requested by the Museum. hi the event of a termination of the Interlocal Agreement, the Museum shall attorn to the City. Section 25.17 Provisions not Merged with Deed. None of the provisions of this Sublease, nor the separate estates of the Museum and the: Authority, are intended to or shall, in any event, be merged, including by reason of any transfer, whether by operation or law or otherwise, (i) transferring the Museum's leasehold estate in the Subleased Premises or its interest in the Project or any part thereof from the Museum to the Authority, or (ii) transferring title to the Subleased Premises or any part thereof from the Authority or the City to the Museum, and any such transfer shall not be deemed to afi'ect or impair the provisions and covenants of this Sublease. No such merger of estates shall occur unless and until all parties having any interest in this Sublease, the leasehold estate created hereby, or the Project, including all Leasehold Mortgagees; shall join in the execution of a written instrument effecting such merger. Section 25.13 Waiver of Landlord's Lien. The Authority hereby waives any right to a statutory or contractual landlord's lien (but not any post judgment judgment liens) against any items of personal property which are now located or may hereafter be delivered or installed in the Building. This waiver shall be self -operative without the execution of further instruments. However, if requested by any party extending credit to the Museum or its subtenants secured by any property on which the Authority would otherwise have a right to a landlord's lien but for the above waiver, the Authority shall confirm in writing to such party that the Authority waives and does not have rights to a lien against such property. Section 25.19 Approvals and Consents. Wherever in this Sublease the approval or consent of any party is required, it is understood and agreed that unless specifically stated to the contrary, such approval or consent will not be unreasonably withheld or delayed. Wherever in this Sublease the approval or consent of the Authority or the City, or both, is required, the written 40 ��� approval or consent of the matter in question by the City Manager shall satisfy the requirement for approval or consent of the Authority and the City (as applicable) for all purposes. Section 25.20 Exculpation. It is the intent and agreement of the parties hereto that only the parties as entities shall be responsible in any way for their respective obligations hereunder. In that regard, no officer, director, partner, investor, official, representative, employee, agent, or attorney of any of the parties to this Sublease shall be personally liable for the performance of any obligation hereunder or for any other claim made hereunder or in any way in connection with this Sublease, or any other matters contemplated herein. Section 25.21 Entire Agreement. This Sublease and Development Agreement represent the total agreement between parties with respect to the matters stated herein and therein. All other prior agreements between the parties relating to the Museum's lease of the Subleased Premises, either verbal or written, are superseded by this Sublease and the Development Agreement and are therefore no longer valid. Section 25.22 Attorneys' Fees. In the event of any dispute or litigation between the parties arising under this Sublease, each party shall be responsible for its own expenses, including attorneys' fees and court costs, at both trial and appellate levels. ARTICLE XXVI AFFIRIVIATIVE ACTION Section 26.1 Affirmative Action. The Museum shall have in place an Affirmative Action/Equal Employment Opportunity Policy and shall institute a plan for its achievement which will require that action be taken to provide equal opportunity in hiring and promoting for women, minorities, individuals with disabilities, and veterans. Such plan will include a set of positive measures which will be taken to insure nondiscrimination in the work place as it relates to hiring, firing, training and promotion. In lieu of such a policy/plan, the Museum shall submit a Statement of Assurance indicating that their business is in compliance with all relevant Civil Rights laws and regulations. Section 26.2 Nondiscrimination. The Museum agrees that there will be no discrimination against any person based upon race, religion, color, sex, ancestry, age, national origin, mental or physical handicap, in the use of the Premises and improvements thereof. It is expressly understood that upon a determination by court of competent jurisdiction that discrimination has occurred, the Authority shall have the right to terminate this Sublease. remainder of this page intentionally left blank] 41 f_ ■ IN WITNESS WHEREOF, the parties hereto have individually, through their proper officials, executed this Sublease the day and year first herein above written. Witness: MIAMI SPORTS AND EXHIBITION AUTHORITY By: Print Name: Print Name & Title: _ Print Name: APPROVED AS TO FORM AND CORRECTNESS: By: Print Name &'ritle: _ Witness: Print Name: Print Name: MIAMI CIIILDREN'S MUSEUM, INC. By: Print Name:_ Richard Lampen, President Print Name: CONSENT OF CITY OF MIAMI The undersigned hereby consents to and approves all of the terms and conditions of the foregoing Sublease as of this day of , 2001. THE CITY OF MIAMI, a municipal corporation of the State of Florida 13y: Its: %\MIA-SRVOI U.ASHMI323703v04ksddj04!.D0C17r 19101 01— 2 ■ • • DEVELOPMENT AGREEMENT FOR THE MIAMI CHILDREN'S MUSEUM PROJECT by and between MIAMI SPORTS AND EXHIBITION AUTHORITY and MIAMI CHILDREN'S MUSEUM, INC., a Florida not-for-profit corporation ,2001 EXHIBIT C € 1- 772 • 0 TABLE OF CONTENTS Pa¢c RECI'T'ALS ARTICLE I GENERAL PROVISIONS ............................. .................................. ..................... I AR"I'ICI.x I GENERAL PROVISIONS...................................................................................1 Section 1.1 Recitals and Exhibits ....... ................................................ ........ I............................. l Section1.2 Definitions.............................................................................................................1 Section 1.3 Authority to Enter into Agreements......................................................................4 Section 1.4 Term of Agreement...............................................................................................4 ARTICLE- II CONDITIONS......................................................................................................5 Section 2.1 Review Period Conditions....................................................................................5 Section 2.2 Failure of Review Period Conditions....................................................................6 Section 2.3 Inspections and Indemnification...........................................................................7 ARTICLEID PLANS..................................................................................................................7 Section3.1 Plans......................................................................................................................7 Section 3.2 Construction flans................................................................................................7 Section 3.3 Plan Approval Process..........................................................................................8 Section 3.4 Project Inspector...................................................................................................8 Section 3.5 Conformity of Plans..............................................................................................8 Section 3.6 Construction of the Project...................................................................................8 Section 3.7 Permits and Approvals.................................................. ....................................9 Section 3.8 Payment and Performance I3ond...........................................................................9 Section 3.9 Parking During Construction................................................................................9 Section 3.10 Mechanics' Liens...................................................................................................9 ARTICLEIV MORTGAGE ES.................................................................................................10 ARTICLE V INSURANCE: AND CASUALTY......................................................................10 Section5.1 Pre -Construction Insurance.................................................................................10 Section 5.2 Insurance During Construction...........................................................................10 Section5.3 Named Insured............................................................................................I I Section 5.4 Insurance hoes Not Waive Museum's Obligations............................................1 I Section5.5 Proof of I,oss....................................................................................................... I Section 5.6 Property Insurance Proceeds...............................................................................1 l Section 5.7 Covenant for Commencement and Completion of Reconstruction .................... 12 Section 5.8 Museum's Option to Terminate Lease................................................................12 Section 5.9 Waiver of Subrogation Rights............................................................................12 Section 5.10 Indemnification by Museum...............................................................................12 01- 772 S0 rage ARTICLEVI DEFAULT.......................................................................................... ............13 Section 6.1 Museum's Default...............................................................................................13 Section 6.2 Authority's Default............................................................... .. ................14 Section 6.3. Unavoidable Delay................................................................ .......................14 Section 6.4 Obligations, Rights and Remedies Cumulative.................................................14 ARTICLE VII ARBITRATION.................................................................................................14 Section7.1 Arbitrator(s).......................................................................................................14 Section 7.2 Arbitration Process..............................................................................................15 ARTICLE VIII MISCELLANEOUS PROVISIONS...................................................................15 Section 8.1 No Partnership or Joint Venture.........................................................................15 Section 8.2 Prevailing Laws and. Venue ................................... ............................. ........16 Section8.3 Notices................................................................................................................16 Section 8.4 Titles of Articles and Sections............................................................................17 Section8.5 Counterparts.......................................................................................................17 Section 8.6 Successors and Assigns.......................................................................................17 Section 8.7 Approvals and Consents.....................................................................................17 Section8.8 Interpretation....................................................................................................... 17 Section8.9 Attorneys' Fees....................................................................................................18 Section 8.1 U Entire Agreement................................................................................................18 Section 8.11 Incorporation of Provisions of the Developer Sublease by Reference ...............18 Section8.12 Assignments........................................................................................................18 SignaturePage................................................................................................................................15 Tableof Exhibits............................................................................................. ...........................17 0j.— 772 DEVELOPMENT AGREEMENT (MIAMI CHILDREN'S MUSEUM PROJECT) THIS DEVELOPMENT AGREEMENT (MIAMI CHILDREN'S MUSEUM PROJECT) (the "Agreement") is made this day of , 2001, by and between MIAMI CHILDREN'S MUSEUM, INC., a Florida not-for-profit corporation ( the "Museum"), and MIAMI SPORTS AND EXHIBITION AUTHORITY (the "Authority"), and consented to and joined in by the City of Miami (the "City") for the purposes stated herein. All capitalized terms used herein shall have the'meanings set forth in Section 1.2 below, unless otherwise indicated. WHEREAS: WHEREAS, pursuant to that certain Interlocal Agreement dated , 2001 by and between the City and the Authority (the "Interlocal Agreement"), the City has ground leased to the Authority a certain parcel of real property located on Watson Island in the City of Miami; Miami -Dade County, Florida, legally described on Exhibit A attached hereto (the "Property"); WHEREAS, pursuant to that certain Sublease Agreement dated _ , 2001 by and between the Authority, as landlord, and the Museum, as tenant (the "Sublease"), the Authority has sub -ground leased to the Muscum the entire Property (together with any improvements now or hereafter constructed thereon, the "Premises"); and WHEREAS, the Museum desires, pursuant to the Sublease and subject to fulfillment of the conditions subsequent and in accordance with the other terms, provisions and conditions hereinafter set forth, to develop, construct and operate a regional children's museum on the Premises. NOW, THEREFORE, in consideration of the foregoing, the covenants and conditions hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Authority and the Museum hereby covenant and agree as follows: ARTICLE I GENERAL PROVISIONS Section 1.1 Recitals and Exhibits. The recitals above and exhibits attached hereto are incorporated herein by this reference. �~ Section 1,2 Definitions. Unless otherwise provided herein, all initial capitalized terms used in this Agreement shall have the meanings indicated below: (a) "Agreement" means this Development Agreement. (b) "Approvals" means all governmental approvals and permits (including without limitation the MUSP, building permit(s) and approvals from the 01- 772 0 • State of Florida under the Deed Restrictions (as defined in the Sublease), if any) required under any Legal Requirements for the commencement of construction of the Project in accordance with the Plans. (c) "Arbitration" means the arbitration procedures set forth in Article VII of this Agreement. (d) "Authority" means Miami Sports and Exhibition Authority, an independent and autonomous agency and instrumentality of the City. (e) "Building," means the structure to be constructed upon the Premises for the project. (f) "City" means the City of Miami, a municipal corporation of the State of Florida. (g) "City Commission" means the City Commission of the City of Miami. (h) "Commencement Date means the date construction of the Project commences, but not later than twelve (12) months after the Effective Date, Subject to Unavoidable Delay. (i) "Completion Date" means the date that the Project is substantially completed in accordance with the Development Order, which shall be no leiter than thirty (30) months after the Commencement Date, subject to Unavoidable Delay. The issuance of a temporary certificate of occupancy shall constitute sufficient evidence that the Project has been substantially completed in accordance with the Development Order. (j) "Construction Plans" means the final working plans and specifications for the Project, which are based on the Plans attached to the MUSP and approved under the Development Order, and include the following information: (a) definitive architectural drawings, (b) definitive foundation and structural drawings, (c) definitive electrical and mechanical drawings, including plans for all lighting facilities, landscaping and signage affecting the exterior appearance of the Project, and (d) final specifications, excluding, however, drawings and specifications relating to interior improvements. The Construction Plans shall also include a projected progress schedule for completion of the Project. (k) "Development Order" means the final and effective Development Order authorized and approved by the City Commission at the hearing for the MUSP. (1) "Effective Date" means the date of the final signature and/or initialing of this Agreement by the parties. (m) "Final Plans"has the meaning ascribed to it in Section 3.3. 01- 7r•2 (n) "Governmental Authority" shall mean any federal, state, county, municipal or other governmental entity or any instrumentality of any of them, having jurisdiction over the Project. (o) "Hazardous Materials" shall mean substances defined as "Hazardous Materials", "hazardous materials" or "toxic substances" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et. seq.; the Hazardous Materials Transportation Act, as amended, 49 U.S.C. Section 1801 et. seq.; the Resource Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901 et. seq. and any applicable state laws; and the regulations adopted and publications promulgated pursuant to said laws. (p) "Insurance Trustee" means the Leasehold Mortgagee if, at the time insurance proceeds become payable, there is a Leasehold Mortgage; however, if there is no Leasehold Mortgage at the time insurance proceeds become payable, or if the Leasehold Mortgagee refuses to serve as Insurance Trustee, the Insurance Trustee shall be an escrow agent selected by the Museum. (q) "Interlocal Agreement" has the meaning ascribed to it in the Recitals. (r) "Leasehold Estate" means all of the estate, rights and interest of the Museum in and to the Premises and any other rights of the Museum, in each case arising under or growing out of the Sublease. (s) "Leasehold Mortgaae" has the meaning ascribed to it in Section 16.1 of the Sublease. (t) "Leasehold Morwaaee" has the meaning ascribed to it in the Sublease. (u) "Legal Requirements means all laws, statutes, ordinances, regulations, building codes, zoning codes and regulations and the orders, judgments, rules, regulations and requirements of all federal, state, local and municipal governments, and the agencies, officers, departments, boards, commissions and courts thereof, whether now or hereafter in effect, which are or later become applicable to the Premises or any part thereof or to the use or manner of use of all or any part of the Premises. (v) "Museum" means Miami Children's Museum, Inc., a Florida not-for-profit corporation. (w) "MUSP" means the Major Use Special Permit for the Project. (x) "Plans" means the plans and specifications for the construction of the Project attached to the MUSP and approved under the Development Order, 3 01— 772 (y) "Premises" has the meaning ascribed to it in the Recitals. (z) "Proiect" means the development, construction, management and operation of the regional children's museum to be known as the Miami Children's Museum as described in the Sublease, and arty other related facilities and improvements at the Property, which are incidental and ancillary to the operation of a regional children's museum. (aa) "Project Inspector" means the architect and/or engineer hired from time to time by the Authority and/or the City to inspect the progress of the Project for the benefit of the Authority and the City. (bb) "Property" means the real property located on Watson Island, legally described in Exhibit A. (cc) "Reconstruction Work" has the meaning ascribed to it in Section 5.6. (dd) "Review Period" means the one hundred eighty (180) day period commencing on the Effective Date, (ee) "Sublease" has the meaning ascribed to it in the Recitals. (ff) "Unavoidable Delay" means strikes, lockouts, acts of God, inability to obtain labor or materials or settle insurance claims due to governmental restrictions, enemy action, civil commotion, fire, hurricane, flood, casualty, or other similar causes beyond the reasonable control of a party (not including such party's insolvency of financial condition). Section 1.3 Authority to Enter into Agreements, 'rhe Authority represents, covenants and warrants to the Museum that it has a valid right to enter into the Interlocal Agreement, this Agreement and the Sublease, to lease the Premises from the City, to sublease the Premises to the Museum, and to permit the Museum to develop the Project on the Premises. The Museum represents, covenants and warrants to Authority that it has a valid right to enter into this Agreement and the Sublease, and to lease the Premises from the Authority. Section 1.4 Term of Agreement. The term of this Agreement shall commence on the Effective Date hereof and shall end, except as otherwise provided in this Agreement, on the Completion Date. Notwithstanding the foregoing, the parties acknowledge that the terms of this Agreement relating to construction (and insurance requirements during periods of construction) shall apply to the reconstruction of the Project after a casualty which damages or destroys more than fifty (50"io) of the Building pursuant to Section 13.5 of the Sublease. 4 01— 772 ARTICLE II CONDITIONS Section 2.1 Review Period Conditions. The Sublease and all of the obligations of the parties under this Agreement shall be subject to the satisfaction of the following conditions within the Review Period; (a) The -Museum shall have confirmed, at its sole cost and expense, that there are no abnormal soil or subsurface conditions on the Premises which could interfere with typical construction reasonably anticipated for the construction of the Project as described in the Plans. In that regard, the Museum shall be entitled to make inspections and test borings of the Premises, and to perform such other subsurface engineering generally required under sound and prudent engineering practices. The Museum shall correlate the results of such inspections, borings and engineering with the requirements for construction of the Project and make the same available to the Authority. (b) The Museum shall have confirmed, at its sole expense, that utility services sufficient to satisfy the requirements of the Museum and the applicable regulatory authorities for the development of the Project are available at the Premises. (c) The Museum shall have obtained, at its sole expense, an environmental audit of the Premises from a licensed and recognized environmental inspection company which confirms that there is not now nor has there ever been (i) the presence of any Hazardous Materials on the Premises, (ii) any present or past generation, recycling, reuse, sale, storage, handling, transport, and/or disposal of any Hazardous Materials on the Premises, nor (iii) any failure to comply with any applicable local, state or federal environmental laws, regulations, ordinances or administrative or judicial ordinances relating to the generation, recycling, reuse, sale, storage, handling, transport acid/or disposal of any Hazardous Materials. The Museum shall have the right to conduct a Phase 1, Phase II and any other audit or test recommended by its environmental consultant to confirm the foregoing, at the expense of the Museum. (d) The Museum shall have obtained, at its sole expense, a commitment for title insurance, from a recognized commercial title insurance company authorized to issue title insurance in the State of Florida agreeing; to insure the I.easehold Estate free of exceptions that would, in the reasonable opinion of the Museum, prevent the Museum from constructing the Project in accordance with the Plans. (c) The Museum shall have obtained, at its sole expense, a survey of the Premises showing the Premises to be free of encroachments or conditions �'� 1&' that would prevent the Museum from constructing the Project in accordance with the Plans. The survey shall be certified to the Museum, the Authority, the City, the Museum's title insurer and the Museum's lender(s), and the Museum shall furnish a copy of the survey to the Authority. (f) The City shall have consented to the Sublease and this Agreement, and executed and delivered to the Museum the non -disturbance agreement required under Section 25.16 of the Sublease. Section 2.2 Failure of Review Period Conditions. (a) In the event one or more of the conditions set forth in Section 2.1 (a), (b), (c) or (f) are not satisfactory to the Museum, in the Museum's sole discretion, the Museum may cancel this Agreement and the Sublease by providing written notice on or before 5:00 p.m. on the day the Review Period expires, in which event this Agreement and the Sublease shall be of no further force and effect and the parties shall be released from any further obligations with respect hereto and thereto, except for the provisions of this Agreement which specifically survive termination. The Museum agrees to deliver to the Authority copies of all reports of all inspections conducted or obtained by the Museum and affecting the Property. (b) In the event that the Museum does not terminate this Agreement and the Sublease pursuant to Section 2.2(a) above, the Museum shall be deemed to have accepted the Premises in their "as is" condition, except as provided in Section 2.2(c) below. (c) In the event that the title commitment or survey reveals any defects in title that prevents the Museum from constructing the Project in accordance with the Plans, the Museum shall provide the Authority written notice of the defects) together with a copy of the title commitment and the survey on or before 5:00 p.m. on the day the Review Period expires. If the Museum fails to specifically object, in writing, to any particular condition of title or matter of survey prior to 5.00 p.m. on the day the Review Period expires, the Museum shall be deemed to have waived such condition of title. In the event that the Museum timely objects to any conditions of title or matter of survey, the Authority shall be under no obligation to cure any such title or survey defect(s). If the Authority elects, in its sole discretion, to attempt to cure such defect(s), the Authority shall not be obligated to bring any action or proceeding; to eliminate such title objection or expend any money to eliminate any title objection, In the event the Authority does riot care any title or survey defect(s) within ninety (90) days following the expiration of the Review Period, then the Museum, at its option, shall have an additional period of ninety (90) days to attempt to cure same, 'failing; which the Museum may elect to (i) cancel this 6 01— 772' • 0 Agreement and the Sublease, in which event this Agreement and the Sublease shall be of no further force and effect and the parties shall be released from any further obligations with respect thereto, except for the provisions of this Agreement which specifically survive termination; or (ii) waive objections to the condition of title or survey for all purposes under this Agreement. Section 2.3 Inspections and Indemnification. The Museum shall have the right to conduct such tests, inspections and investigations of the Premises as the Museum deems necessary, including without limitation all of the inspections and investigations contemplated under this Article 11. In the event that the Museum elects to terminate this Agreement under this Article, the Museum shall promptly restore any damage to the Premises resulting from the activities of the Museum, its employees, contractors and agents pursuant to this Article 11, at the Museum's sole cost and expense. The Museum shall indemnify, defend and hold the Authority harmless from all liabilities, costs and damages for injuries to persons or properties, including reasonable attorneys' fees and costs, arising out of or resulting from any of the inspections, tests or other activities of the Museum, its employees, contractors or agents in connection with the Premises. This provision shall survive the termination of this Agreement. Prior to entering the Premises to conduct any tests, inspections or investigation permitted under this Article, the Museum shall deliver to the Authority and the City evidence that it has obtained the insurance required under Section 5.1 hereof. The Museum acknowledges that it will undertake all inspections at its sole risk and expense and that the Authority shall have no liability whatsoever, financial or otherwise, for any expenses incurred by the Museum in connection with this Agreement. ARTICLE III PLANS AND CONSTRUCTION Section 3.1 Plans. Prior to the Commencement Date, the Authority and City acknowledge that they have no interest or ownership rights to the Plans or any other plans developed by the Museum for the Project (including the Construction Plans and Final flans) and, if the Museum does not proceed with the Project for any reason whatsoever, the Museum shall retain any and all rights it may have with respect to all such plans. Following the Commencement Date, if this Agreement and the Sublease are terminated as a result of a default by the Museum not cured within the applicable cure period (if any), the City shall be entitled to use for the completion of the Project (but not for any other improvements or project) the Plans and any other plans developed by the Museum for the Project (including the Construction Plans and Final Plans), and the City shall have the full right to develop, or cause to be developed, the Project on the Property in accordance with all such plans. Section 3.2 Construction Plans. No later than six (6) months after the ]effective Date, the Museum shall submit to the City a set of Construction Plans for the Project, for approval in accordance with the Plan Approval Process described in Section 3.3. Approval of the Construction Plans by the City hereunder will be given in its capacity as the fee owner of the Premises and shall not relieve the Museum of any obligation it may have to file the Construction 01- 772 • 0 Plans with the appropriate Governmental Authorities having jurisdiction over the Project and to obtain any building or other permit or approval required by law. Section 3.3 Plan Approval Process, The City shall have the right to review and approve all plans and specifications for the Project, which approval shall not be unreasonably withheld or conditioned, and provided that once the plans are approved pursuant to (lie Development Order, the City shall have no right to raise as an objection or reason for disapproval in any subsequent plans any matters which substantially conform to the Plans. The City shall have a period of fifteen (15) business days after the receipt of the Construction Plans to advise the Museum, in writing, of its approval or disapproval of same. If no written disapproval is received by the Museum within said 15 -day period, then the plans in question shall automatically be deemed approved by the City. In the event the City disapproves of part or all of the plans submitted by the Museum, the City shall include in its written notification the specific reasons for disapproval and the steps necessary to correct same. In the event of a proper disapproval of which the Museum is timely notified, the Museum shall resubmit the Construction Plans (as applicable) to the City revised to cure the ground of the disapproval. Any resubmission shall be subject to review by the City pursuant to the foregoing plan approval process (except that the Authority shall have five (5) business days, rather than fifteen (15) business days, to review same) until the same shall be finally approved by the City. The City and the Museum shall attempt to resolve any disputes concerning the plans in good faith and the City shall not unreasonably withhold or condition its consent to any such requested approval. In the event the parties are unable to resolve a dispute with respect to any plans, the matter shall be resolved in Arbitration. The Museum acknowledges that any plan approval given by the City shall not constitute an opinion by the City that the plans are structurally sufficient or in compliance with any Legal Requirements, and no approval shall impose any liability on the City other than the rights of approval granted to the City pursuant to this Article fit. All plans as finally approved by the City shall be initialed by the City and the Museum (the "Final Plans"), and shall be and are incorporated into this Agreement by this reference. The Museum shall not be required to obtain the approval of the Authority with respect to any plans or specifications for the Project. Section 3.4 Project Inspector. 'The City and/or the Authority may, by written notice.to the Museum, designate the Project Inspector to review the plans and specifications for the Project and the progress of construction, in lieu of the City under this Article III. Section 3.5 Conformity with Legal Requirements. The Plans, the Construction Plans and the hinal Plans, and all work performed by the Museum with respect to the Project and the construction thereof, shall be in conformity with this Agreement and all applicable Legal Requirements. Section 3.6 Construction of the Proiect. The MUSeulll shall be entitled to commence construction of the Project once the Museum has provided to the Authority evidence that it has secured sufficient funds for the construction of the Project, Final Plans have been initialed by the City and the Muselnll has obtained the Approvals required for the stage of construction to be U .1. - 7'7 w 0 1 0 performed by the Museum. During the construction of the Project, the work of the Museum shall be available for reasonable inspection by the Project Inspector, provided that the Museum is given reasonable advance written notice thereof and does not interfere with the progress of the Museum's construction work. Section 3.7 Permits and Approvals. The Museum shall secure and pay for any and all Approvals necessary for proper construction and completion of the Project as and when required for the then current stage of development and/or construction of the Project. Section 3.8 Payment and Performance Bond. The Museum shall secure and pay for a payment and performance bond for the construction of the Project issued by a bonding company reasonably satisfactory to the City and the Authority. The rights of the City and the Authority tinder the bond shall be subordinate to the rights of any Leasehold Mortgagee. Section 3.9 Parking During Construction. During construction of the Project, all vehicles on site for the purpose of construction shall be parked wholly within the boundaries of the Property. Section 3.10 Mechanics' Liens. The Museum shall not knowingly suffer or permit any mechanics' liens to be filed against the title to the Property or the Project, nor against the Museum's interest in the Property by reason of work, labor, services or materials supplied to the Museum or anyone having a right to possession of the Premises or the Project as a result of an agreement with or without the consent of the Museum. Nothing in this Agreement shall be construed as constituting the consent or request of the Authority, expressed or implied, by inference or otherwise, to any contractor, subcontractor, laborer or materialman for the performance of any labor or the furnishing of any materials, for any specific work on the Property or the Project nor as giving the Museum the right, power or authority to contract for or permit the rendering of any services or the furnishing of any materials that would give rise to the filing of any mechanics liens against the Authority's interest in the Property or the Project. If any mechanics' lien shall at any time be filed against the Property or the Project, the Museum shall cause it to be discharged of record within thirty (30) days after tine date the Museum has knowledge of its filing. If the Museum shall fail to discharge a mechanics' lien within that period, then in addition to any other right or remedy, the Authority may, but shall not be obligated to, discharge the lien either by paying the amount claimed to be due or, by procuring the discharge of the lien by deposit in court or bonding. The Authority shall be entitled, if it so elects, to compel the prosecution of any action for the foreclosure of the mechanics' lien by the lienor and to pay the amount of the judgment, il' any, in favor of the lienor with interest, costs and allowances with the understanding that all amounts paid by the Authority shall be repaid to tine Authority by the Museum immediately upon rendition of any invoice or bill by the Authority. The Museum shall not be required to pay or discharge any mechanics' lien so long as the Museum shall in good faith proceed to contest the lien by appropriate proceedings and if the Museum shall have given notice in writing to the Authority of its intention to contest the validity of tine lien and shall furnish reasonably satisfactory evidence that funds are or will be available to pay the amount of the contested lien claim with all interest on it and costs and expenses, including; reasonable attorneys' fees to be incurred in connection with it. The Authority shall not be entitled to pay the lien or compel the prosecution of any action with respect thereto during any time that the Museum is contesting'such lien. 01- 772 ARTICLE IV MORTGAGEES The Authority agrees for the benefit of any Leasehold Mortgagee which is the holder of any Leasehold Mortgage, that any such holder, during the pendency of this Agreement, shall have all of the same rights with respect to this Agreement as are afforded to Leasehold Mortgagees tinder Article XVI of the Sublease, including without limitation the right to take over any and all of the Museum's obligations and rights hereunder and/or cure any default of the Museum hereunder. ARTICLE V INSURANCE, CASUALTY AND INDEMNIFICATION Section 5.1 Pre -Construction Insurance. From the date hereof through the Commencement Date, the Museum shall maintain, and s11all require its contractors, agents, consultants and representatives conducting any tests, inspections or investigations on the Premises to maintain, insurance with respect to liability to third parties in amounts not less than $1,000,000. Section 5.2 Insurance During Construction. From the Commencement Date through the Completion Date, the Museum shall maintain or cause to be maintained: (a) Property Insurance. Builder's Risk Insurance on the Project against all risks of physical loss or damage to the Project. The insurance shall be written on a full replacement cost basis. (b) Liability Insurance. Commercial general liability, including contractual liability, or an equivalent policy form providing liability insurance against claims for personal injury or death or property damage, occurring on or about the Project or any elevator, escalator, or hoist used for the construction of the Project. Such insurance shall afford protection to at least a combined single limit for bodily injury and property damage liability of $2,000,000 per occurrence. Professional liability insurance covering errors and omissions arising out of all professional services rendered in connection with the design and engineering of the Project with coverage in an amount no less than $1,000,000. (c) Worker'sC� 'ompensation, Worker's Compensation and Employer's Liability Insurance in compliance with Florida Statutes Section 440. (d) Copies. On or before the Commencement nate, the Museum shall furnish Evidence of Insurance to the Authority and the City which shall clearly indicate that the Museum has obtained insurance in the type, amount and classifications 'required by this Agreement. Certificates for renewal policies replacing any policies expiring during the term of this Agreement io 01 772 0 • shall be delivered at least twenty (20) days prior to the date of expiration of any policy together with proof that all premiums have been paid. Insurance policies required above shall be issued by companies authorized to do business under the laws of the State of Florida, with the qualifications as to management and financial strength set. forth Section 12.2.8 of the Sublease. The insurance required by this Article may be provided by the contractor, architect or other professional performing the work in question so long as the amount of insurance available to pay losses is at least the minimum required by this Article. Section 5.3 Named Insured. All. policies of insurance required by this Article shall indicate as named or additional insureds the Museum, the City, the Authority and any Leasehold Mortgagee as their respective interests may appear. Notwithstanding any such inclusion, the parties hereto agree that any losses under such policy shall be payable, and all insurance proceeds recovered thereunder shall be applied and disbursed, in accordance with the provisions of this -Article. All insurance policies shall provide that no material change, cancellation or termination shall be effective until at least thirty (30) days after written notice to the additional and named insured. All insurance policies hereunder shall be subject to the review and approval of the City pursuant to Article 12 of the Sublease. Section 5.4 Insurance Does _ Not Waive Museum's Obligations. No acceptance or approval of any insurance by the Authority shall relieve or release the Museum from any liability, duty or obligation wider this Agreement. Section 5.5 Proof of Loss. Whenever any part of the Project shall have been damaged or destroyed by fire or other casualty, the Museum shall promptly make proof of loss in accordance with the terms of the applicable insurance policies and shall promptly prosecute all valid claims which may have arisen against insurers or others based upon any such damage or destruction. The Museum shall promptly give the Authority and the City written notice of any damage or destruction to the Project. Section 5.6 Property insurance Proceeds. (a) Authorized Payment, All stuns payable for loss and damage arising out of the casualties covered by the property insurance policies shall be payable to the htsurance Trustee, to be disbursed to the Museum pursuant to subsection 5.6(b). (b) Disposition of Insurance Proceeds for Reconstructing. Subject to the requirements of the Museum's lender(s) (if any), all insurance proceeds shall be used, to the extent required, for the reconstruction, repair or replacement of the Project, so that the Project shall be restored to a condition comparable to the condition prior to the loss or damage (hereinafter referred to as the "Reconstruction Work"). From the insurance proceeds received by the Insurance Trustee, there shall be disbursed to the Museum such amounts as are required for the Reconstruction Work. The Museum shall submit invoices or proof of I I 1 w 772 • 0 payment to the Insurance Trustee for payment or reimbursement in accordance with an agreed schedule of values reasonably required to perform the work. Any amount remaining in the hands of the Insurance Trustee after the completion of the Reconstruction Work shall be paid to the Museum. Section 5.7 Covenant for Commencement and Completion of Reconstruction. Subiect to the provisions of this Article, the Museum covenants and agrees to promptly submit any claim for damage to the insurer and to commence the Reconstruction Work as soon as practicable (but in any event within one hundred fifty (150) days after the insurance proceeds have been received by the Insurance 'Trustee), and to fully complete such Reconstruction Work as expeditiously as reasonably possible. If the Reconstruction Work has not commenced within said 150 -day period, subject to Unavoidable Delay, then the Authority shall have the right to terminate this Agreement and the Sublease. . Section 5.8 Museum's Option to Terminate. If (a) the insurance proceeds received are insufficient to complete the repairs, or (b) any Leasehold Mortgagee applies all or a portion of the insurance proceeds to the repayment of the Leasehold Mortgage, or (c) the Museum is unable to obtain all of the governmental approvals required under Legal Requirements for the reconstruction of the Building, then, in any of such events, the Museum may elect to terminate this Agreement and the Sublease by giving to the Authority notice of such election within ninety (90) days after the occurrence of the casualty. If such notice is given, the rights and obligations of the parties under this Agreement and the Sublease shall cease as of the date of such notice, except for the rights and obligations that are intended to survive the termination of this Agreement. Section 5.9 Waiver of Subrogation Rights. Anything in this Agreement to the contrary notwithstanding, the Authority and the Museum each hereby waive any and all rights of recovery, clailnn, action, or causes of action against the other, its agents, officers, directors, partners, investors, or employees, for any liability, loss or damage that may occur in, on, about or to the properties that are the subJect of this Agreement and/or any improvements from time to time existing thereon, or to any portion or portions thereof, or to any personal property brought thereon, by reason of fire, the elements or any other cause(s) which are insured against under the terms of valid and collectibic insurance policies carried for the benefit of the party entitled to make such claim, regardless of cause or origin, including negligence of another party hereto, its agents, officers, directors, partners, investors, or employees; provided that such waiver does not limit in any way any party's right to recovery under such insurance policies, and provided further that the insurer pays such claims. The Muscum and the Authority shall each obtain an endorsement to all of their insurance policies to effect the provisions of this Section, provided that such endorsements are available at no additional cost. Section 5.10 Indemnification by Museum. The Museum shall indemnify, protect, defend and hold harmless the Authority and the City, their officials and employees, from and against any and all claims, suits, actions, damages or causes of action of whatever nature arising out of the use or operation of the Property tinder this Agreement, whether such claim shall be made by an employee or member of the Museum, an employee of the Authority, an employee of the City, or by any third party, and whether it relates to injury to persons (including death) or iz 01- 772 damage to property and whether it is alleged that the Authority or the City, or their employees or officials were negligent; provided, however, that this indemnity shall not extend to or cover any claims, suits, actions, damages or causes of action arising out of the gross negligence or willful misconduct of the City or the Authority, or anyone acting by, through or under either of them. The Museum shall, at its own cost and expense, pay and satisfy all costs related -to any orders, judgments or decrees which may be entered thereon, and from and against all reasonable costs, attorneys' fees, expenses and liabilities incurred in and about the defense of any such claims and the investigation thereof. The Museum shall further indemnify, defend, protect and hold the Authority and the City harmless from and against any and all claims arising from any breach or defiiult in performance of any obligation on the Museum's part to be performed under the terms of this Agreement, or arising from any act, neglect, fault or omission of the Museum, its members, agents, contractors and employees, from and against all reasonable costs, attorneys' fees, expenses and liabilities incurred in connection with such claim or any action or proceeding brought thereon. In case any action or proceeding shall be brought against the Authority and/or the City by reason of any claim covered by the Museum's indemnity hereunder, the Museum upon notice from the Authority or the City shall defend the same at the Museum's expense by counsel approved in writing by the Authority and the City (such approval not to be unreasonably withheld). The Authority and the City reserve the right to defend themselves, provided that in actions against both they use the same counsel and the counsel selected is reasonably acceptable to the Museum. The Museum shall promptly notify the Authority and the City, in writing, of any claim or action filed, of whatever nature, arising out of the use or operation of the Property under this Agreement by the Museum, its tnemhers, agents, contractors or employees, which claim or action could result in liability for the City or the Authority. The Museum shall also promptly notify the Authority and the City if the Museum knows or has reason to believe a claim or action will be tiled, of whatever nature, arising out of the use or operation of the Property by the Museum, its members, agents, contractors or employees, which claim or action could result in liability for the City or the Authority. ART[CLE V1 DEFAULT Section 6.1 Museum's Default. In the event of the failure of the Museum to perform any of the covenants, conditions or agreements which are to be performed by the Museum under this Agreement, and the continuance of such failure for a period of thirty (30) consecutive days after written notice in adequate detail from the Authority to the Museum (provided, however, if such failure cannot reasonably be cured within thirty (30) days, and the Museum, within said thirty (30) day period, shall have commenced and thereafter continued diligently to prosecute the cure of such luilurc, said failure shall not constitute a default hereunder, and provided further that any Leasehold Mortgage shall have such rights of notice and cure with respect to the obligations of the Museum as granted herein as are made available to such Leasehold Mortgage under the Sublease for any default by the Museum as the tenant thereunder), then the Authority, to (lie fullest extent permitted by law, shall have the right to pursue any and all remedies available at 13 ill"' 772 law or in equity, including the right to immediately terminate this Agreement, sue for and collect damages and to specifically enforce the Authority's rights, and to enjoin the Museum. Section 6,2 Authority's Default. In the event of the failure of the Authority or the City to perform any of the covenants, conditions or agreements which are to be performed by either of them under this Agreement, and the continuance of such failure for a period of thirty (30) consecutive days after written notice (provided, however, if such failure cannot reasonably be cured within said thirty (30) day period, and the defaulting party, within such thirty (30) day period, shall have commenced and thereafter continued diligently to prosecute the cure of such failure, said failure shall not constitute a default hereunder), then the Museum, to the fullest extent permitted by law, shall have the right to pursue any and all remedies available in equity, including without limitation the right to specifically enforce the Museum's rights, and to enjoin the Authority and or the City (as applicable). It is understood and agreed that in no event shall the City or the Authority be liable for monetary damages. Section 6.3 Unavoidable Delay. The time for any party's performance of the covenants, provisions and agreements of this Agreement shall be extended for the period of any Unavoidable Delay; provided, however, that any party seeking the benefit of Unavoidable Delay shall, within thirty (30) days atter such party shall have become aware of such Unavoidable Delay, give written notice to the other parties of the Unavoidable Delay and its reasonably estimated duration. Section 6A Obligations, Rilzhts and Remedies Cumulative. The rights and remedies of the parties, whether provided at law, in equity or under this Agreement, shall be cumulative. The exercise by any party of any one or more of such remedies shall not preclude the exercise by it, at the same or different times, of any other such remedies for the same default or for any other default or breach by the other party. No waiver made by either party with respect to performance, manner or time of any obligation of any other party or any condition to its own obligation under this Agreement shall be considered a waiver of any rights of said party with respect to the particular obligations of any other party or condition to its own obligation, or a waiver in any respect in regard to any other rights of said party. ARTICLE VII ARBITRATION Section 7.1 Arbitrator s . Any dispute hereunder which is expressly stated to be resolved under this arbitration provision, shall be referred to and exclusively and finally settled by binding arbitration, conducted in accordance with the Commercial Arbitration Rules (or similar successor rules thereto), The place of arbitration shall be Miami, Florida. In the event that either party calls for a determination in arbitration pursuant to the terms of this Agreement, the parties shall have a period of ten (10) days from the date of such request to mutually agree on one arbitrator who, at a minimum, must be an attorney with at least fifteen (15) years experience practicing commercial real estate law (with significant experience in development projects) in Miami -Dade County, Florida, If the parties fail to agree, each party shall have an additional ten (10) days to each select an individual meeting; the same minimum qualifications set forth above, and the two arbitrators selected shall select a third arbitrator to be the arbitrator for the dispute ill 14 Ot- 772 question. if either party fails to make its respective selection of an arbitrator within the additional 10 -day period provided for above, then the other party's selection shall be the arbitrator. Section 7.2 Arbitration Process. The arbitrator(s) shall decide the issues submitted to him/her in accordance with (i) the language, commercial purpose and restrictions contained in this Agreement (including exhibits hereto, if any) and (ii) what is just and equitable under the circumstances, provided that all substantive issues shall be determined under the laws of the State of Florida. With respect to any arbitration proceeding hereunder, the following provisions shall apply: (a) The parties shall cooperate with one another in the production and discovery of requested documents, and in the submission and presentation of arguments to the arbitrator at the earliest practicable date. (b) The arbitrator(s) conducting any arbitration shall be bound by the provisions of this Agreement and shall not have the power to add to, subtract from or otherwise modify such provisions. (c) The parties renounce all recourse to litigation with respect to the matters in this Agreement which direct the dispute in question to be resolved under this arbitration provision, and agree that, with respect to such matters only, the ruling and award (if any) of the arbitrator(s) shall be conclusive, final and binding upon the parties, and shall not be subject to judicial review. Judgment on the award of the arbitrator may be entered in any court having jurisdiction over the party against which enforcement of the award is being sought, and any party may institute judicial proceedings to compel arbitration in accordance with the provisions hereof. (d) Each party shall be responsible for its own costs and expenses incurred in the arbitration, including attorneys' fees and the lees of the arbitrator selected by it (if more than one is used), but the costs of the arbitration itself shall be shared equally by the parties. (e) Except to the extent this Agreement expressly provides that certain matters are to be resolved by Arbitration, all disputes between the parties shall be resolved by litigation. ARTICLE VIII MISCELLANEOUS PROVISIONS Section 8.1 No Partnership or Joint Venture. Nothing contained in this Agreement is intended or shall be construed in any manner or under any circumstances whatsoever as creating or establishing a partnership or a joint venture between or among the Museum and/or the Authority or as constituting any party as the agent or representative of any other party. 15 01.- 7V2, Section 8.2 Prevailing; Laws and Venue. This Agreement shall be governed by the laws of the State of Florida. If any term, covenant, or condition of this Agreement or the application thereof to any person or circumstances shall, to any extent, be determined by appropriate judicial authority to be illegal, invalid, or unenforceable, the remaining terms, covenants and conditions of this Agreement, or application of such term,. covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant, or condition of this Agreement shall be valid and be enforced to the fullest extent permitted by law. Venue for any action under this Agreement not required to be resolved in Arbitration shall lie in the Circuit Court of the Eleventh Judicial Circuit in and for Miami -Dade County, Florida. Section 8.3 Notices. Any notice or communication under this Agreement shall be in writing and shall be deemed sufficiently given if hand delivered or dispatched by United States certified mail, postage prepaid, return receipt requested, or by nationally recognized overnight delivery service, to the appropriate party or entity at the address specified below or at such other address of which the other party shall be duly notified in writing: (a) In the case of a notice or communication to the Museum, to: Miami Children's Museum, Inc. 701 N.W. 1" Avenue Miami, Florida 33136 Attention: President With a copy to: Greenberg; Traurig, P.A. 1221 Brickell Avenue Miami, Florida 33131 Attn: Nancy B. Lash, Esq. Adrienne Pardo, Esq. (b) In the case of a notice or communication to the Authority, to: Miami Sports and Exhibition Authority C/o City of Miatni Miami Riverside Building, 9th Floor 444 S.W. 2"d Avenue Miami, Florida 33130 (c) A duplicate copy of each notice given by any party to this Agreement to the other shall also be delivered to the City at the following addresses: City of Miami Attention: City Manager Miami Riverside Building, 10th Floor 16 0.1- 772 • 444 S.W. 2nd Avenue Miami, Florida 33130 City Attorney City of Miami Miami Riverside Building, 9`h Floor 444 S.W. 2"d Avenue Miami, Florida 33130 Department of Asset Management City of Miami Miami Riverside Building, 3rd Floor 444 S.W. 2nd Avenue Miami, Florida 33130 • All notices shall be deemed received when actually delivered if delivered by hand or by a nationally recognized overnight delivery service and shall be deemed delivered five (5) days following mailing in the event mailed as provided above. All notices of approval, disapproval or default to be given ander this Agreement must be in writing and must be given as provided in this Section. Section 8.4 Titles of Articles and Sections. The titles of the several parts, Articles and Sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 8.5 CounteWarts. This Agreement is executed in several counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. Section 8.6 Successors and Assigns. All of the covenants, conditions and obligations contained in this Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties. Section 8.7 Approvals and Consents. Wherever in this Agreement the approval or consent of any party is required, it understood and agreed that unless specifically stated to the contrary, such approval or consent will not be unreasonably withheld or delayed. Wherever in this Agreement the approval or consent of the Authority or the City, or both, is required, the written approval or consent of the matter in question by the City Manager shall satisfy the requirement for approval or consent of the Authority or City (as applicable) for all purposes. The Museum acknowledges that when the City acts or exercises any rights or obligations under this Agreement, including without limitation the specific approval rights of the City with respect to the Construction Plans, the payment and performance bonds and other similar construction matters, it is doing so in its capacity as the fee owner of the Premises and not as a municipality, and that the role of the City as a municipality is separate and distinct from the role of the City as the fee owner of the Premises under this Agreement. Section 8.8 Interpretation. Reference to any subpart thereof, unless otherwise.. provided, shall refer "including" shall mean "including, without limitation". 17 Article, section, paragraph, exhibit, or to this Agreement. Use of the term The parties to this Agreement have all 01— 772 participated equally in the negotiation and preparation of this. document, and the same shall not be more strictly construed against any one of them. Section 8.9 Attorneys' Pees. If it shall become necessary for any party to employ an attorney to enforce or defend any of its rights or remedies hereunder because of the default or breach of any covenant, condition, or agreement hereunder by any other party, each party shall be responsible for its own attorneys' fees and court costs, including fees and costs incurred at trial level and on appeals. Section 8.10 Entire Agreement. This Agreement, and all documents described or referenced in this, together contain the entire agreement iunong the parties with respect to the subject matter hereof. No modification or amendment of this Agreement shall be binding upon the parties unless such modification or amendment is in writing and signed by the party to be bound thereby. . Section 8.11 Incorporation of Provisions of the Sublease by Reference. The provisions of the Sublease are incorporated into this Agreement by reference. Section 8.12 Assignments. This Agreement may not be assigned, either in whole or in part, by any party, without the express written consent of the other party. [remainder of this page intentionally left blank] 18 01- 772 s • IN WITNESS WHEREOF, the parties hereto have and replaced with executed this Development Agreement on the day, month and year first above written. Witnesses: As to the Museum: MIAMI CHILDREN'S MUSEUM, INC., a Florida not-for-profit corporation - By: Print Name: Print Name: Print Name: Print Name: Richard Lampen, President As to the Authority: MIAMI SPORT'S AND EXI-III3ITION AUTHORITY, an independent and autonomous agency and instrumentality of the City of Miami By:_ Name: 'Title: ATTEST: By: Name: Its: 19 CONSENT AND JOINDER OF CITY OF MIAMI The undersigned hereby executes this Consent and Joinder for the purpose of consenting to and approving the terms of the foregoing Development Agreement, and joining into all of the terms of thereof applicable to the City, as of this day of 2001. THE CITY OF MIAMI, a municipal corporation of the State of Florida By: Carlos A. Gimenez City Manager Attest: Print Name: By: Print Name: Walter J. Foeman City Clerk Approved as to form and correctness: By: - Alejandro Vilarello City Attorney 20 77)) )) � � 2 TABLE OF EXHIBITS Exhibit A. Legal Description of Premises IMI [A-SRVO I TASHM 1323 683vO2\7/17/01 2 21 0IM � s: `'' I � L� This instrument prepired by or under the supervision of Name: Nancy B. lash, Esq. Address: Greenberg Traurig, P.A. 1221 Brickell Avenue Miami, Florida 33131-3261 • (Space reserved fin Clerk of Court) MEMORANDUM[ OF SUBLEASE AGREEMENT (Miami Children's Museum Project) THIS MEMORANDUM OF SUBLEASE AGREEMENT is made as of this day of ,^ _, 2001, by and between MIAMI SPORTS AND EXHIBITION AUTHORITY, an independent and autonomous agency and instrumentality of the City of Miami (the "Authority"), whose address is c/o City of Miami, Miami Riverside Building, 9`f' Floor, 444 S.W. 2°d Avenue, Miami, Florida 33121, and MIAMI CHILDREN'S MUSEUM, INC., a Florida not-for-profit corporation (the "Museum"), whose address is 701 N.W. I" Avenue, Miami, Florida 33136. WITNESSETH: For and in consideration of Ten and NO/100 Dollars ($10.00) and other valuable consideration paid, the Authority does demise and let unto the Museum, and the Museum does lease and take from the Authority, upon the terms and conditions and subject to the limitations more particularly set forth in that certain Sublease Agreement between the Authority and the Museum dated as of , 2001 (the "Sublease"), the land and improvements located on the Southside of Watson Island and legally described on Exhibit A hereto and by this reference made a part hereof (the "Subleased Premises"). Fee title to the Subleased Premises is owned by the City of Miami. The Authority leases the Subleased Premises from the City of Miami pursuant to that certain unrecorded Interlocal Agreement dated , 2001 by and between the City of Miami and the Authority. The Authority, in consideration of the rents and covenants set forth in the Sublease, hereby demises and leases to the Museum, and the Museum hereby takes and hires from the Authority, the Subleased Premises, TO HAVE AND TO HOLD the Subleased Premises for the term commencing on _ , 200_, and ending fifty (50) years thereafter on , 205_ (the "Term"), subject to extension or earlier termination as provided in the Sublease. The Sublease, among other things, provides the following notice: Pursuant to Florida Statutes, Section 713.10, all persons dealing with the Museum are hereby given notice that the Authority shall not be liable E'or any work perforated or to be performed on the Subleased 01— 772 Premises at the request of the Museum, or for any materials furnished or to be furnished at the Subleased Premises for the Museum, and that the Museum has no authority whatsoever to subject the Authority's interest in the Subleased Premises to any liens for labor, service or materials provided to the Museum. All materialmen, contractors, mechanics and laborers and any other persons contracting with the Museum for the demolition, construction, installation, alteration or repair of any improvements on, within or about the Subleased Premises, are hereby further charged with notice that they must look only to the Museum and to the Museum's interest in the Subleased Premises to secure payment for any work done or material furnished at the request or instruction of the Museum. The Sublease also provides that the Museum will have available to it 142 unassigned parking spaces on a surface lot or in a parking garage to be constricted on land lying immediately adjacent to the Subleased Premises in the location depicted on Exhibit B attached hereto, and that the parking spaces shall be made available to the Museum for the use of the Museum, its patrons, employees, licensees, visitors and all other invitees during the business hours of the Museum, at such rates as may be negotiated by the Museum and the entity operating the parking facility (but if the parking facility is operated by the City or any department, agency or authority related to, associated with or under the jurisdiction of the City, at rates no greater than the prevailing rates for municipal parking spaces). This instrument is executed and is to be recorded for the purpose of giving notice of the Sublease hereinbefore defined, but shall not be deemed or construed to change the terms of the Sublease, which shall govern in the case of a conflict. Signed in the presence of: Print Natne: MIAMI SPORTS AND EXHIBITION AUTHORITY, an independent and autonomous agency and instrumentality of the City of Miami By: _ Name: Title: -2- 0J.- 772 Print Name: APPROVED AS TO FORM AND CORRECTNESS: By: Name: Title: Print Name: Print Name: • MIAMI CHILDREN'S MUSEUM, INC,, a Florida not -for -prof t corporation By: Name: Title: -3- 01` 772 STATE OF FLORIDA SS: COUNTY OF MIAMI-DADE } The foregoing instrument was acknowledged before me this _ day of 200^ by , as of MIAMI SPORTS AND EXHIBITION AUTHORITY, an independent and autonomous agency and instrumentality of the City of Miami, on behalf of the agency. He/she personally appeared before me, and- is personally known to me or produced as identi f cation. (NOTARIAL SEAL.1 Notary: Print Name: My Commission expires: STATE OF FLORIDA ) SS: COUNTY OF NIIAMI-DADE ) The foregoing instrument was acknowledged before me this day of _ , 200_ by _ as the Executive Director of MIAMI CHILDREN'S MUSEUM, INC., a Florida not -tor -profit corporation, on behalf of the corporation. He personally appeared before me, and is personally known to me or produced as identification. Notary: Print Name: [NOTARIAL SEAL] My Commission expires: -4- 01— 772 \LASHW 304342v01 \RYFO01!. DOC\4/12/01 \44594.010100 -5- CITY OF MIAMI FLORIDA INTER -OFFICE MEMORANDUM 21 TO: The Honorable Mayor and Members DATE: FILE of the City Commission JUL 1 6 ` ��01 SUBJECT: Execution Interlocal Agreement with Miami Sports & Exhibition Authority for Miami Children's FROM: REFERENCES; Museum e Zz ENCLOSURES: City Manager Commission Meeting: July 26, 2001 RECOMMENDATION: The administration recommends that the City Commission adopt the attached Resolution authorizing the City Manager to execute an Interlocal Agreement, in substantially the attached form, with the Miami Sports and Exhibition Authority ("Authority") for the development, construction, management of a regional children's museum to be known as the "Miami Children's Museum" on approximately 2.32 acres on Watson Island, for a period of fifty (50) years, with the City's exclusive option to extend the term, in any increment of years, for an additional twenty (20) years. The Interlocal Agreement further provides for an annual rent of $2.00 and requires the Subtenant, as defined in the Interlocal Agreement, to provide inkind services with an initial dollar value of not less than $75,000 per year so long as the lease property is exempt from ad valorem taxes. BACKGROUND: On July 27, 2000, the City Commission adopted Resolution 00646 directing the City Manager to negotiate a long-term interlocal agreement with the Authority for the development, construction and management of a regional children's museum on Watson Island. By Motion 00-927, the City Commission approved the site plan for the museum on Watson Island on October 26, 2000, The City Commission further adopted Motion 00-1104 on December 14, 2000, establishing an annual rent of $2.00 and an amount of $75,000 annually to be provided in the form of inkind services. Said inkind services were to be provided so long as the property is exempt from ad valorem taxes. The administration has completed its negotiations of the interlocal agreement with Authority, which details the arrangement for the development, construction, and management of a regional children's museum. The interlocal agreement provides the Authority the right to enter into a sublease and a development agreement with a non-profit entity for this purpose. The Executive Summary of the Interlocal Agreement is attached hereto for reference. 0 jjff�� CAGVEII1 in CC Amd to Cty Is 01 772 Executive Summary Interlocal Agreement between the City of Miami (City) and Miami Sports and Exhibition Authority (Authority) Property Approximately 2.32 acres on Watson Island as legally described in Exhibit A of the Interlocal Agreement Use The property shall be used solely for development, construction, management and operation of a regional children's museum to be known as the "Miami Children's Museum" and related facilities and improvements. Initial Term 50 years commencing on the Possession Date Option The City, at its sole option, upon request of Authority, may extend the term in any increment of years for an additional 20 years. Possession Date The date on which Authority delivers possession of the site to the Subtenant. Rent $2.00 year Infrastructure Improvements The Authority, at no cost to the City, shall cause the Subtenant (a) to design, install and construct any and all utilities required in connection with the construction and operation of the Project, (b) to design and construct the Museum access road connecting the Property to the causeway access roadway servicing the southside of Watson Island (the "Museum Access Road"), and (c) to pay up to fifty percent (50%) of the cost of design and construction of the Entry Boulevard (the "Entry Boulevard"), provided that (i) the Subtenant shall not be responsible for performing the actual design and construction of the Entry Boulevard, and (ii) the total cost to the Subtenant for the Entry Boulevard shall not exceed $200,000. It should be noted that in the event the City is unable to identoyfunding for the balance of the costs for constructing Entry Boulevard, then the City will have to fund same from CIP funds. o1- '772 Parking The City agrees to provide or cause to be provided 142 unassigned parking spaces which spaces shall be located adjacent to and to the east of the lease property. The parking spaces will be provided during normal operations of the museum at the then prevailing rates for municipal parking spaces in the City. The Sublease shall require the Subtenant to maintain not less than 4 handicapped parking spaces on the lease property. Notwithstanding the above, in the event the sublease shall require that upon request, the Subtenant, at its sole cost and expense, shall design and construct its own parking if the City determines its in the City's best interest to require the Subtenant to construct its own parking. Right to Terminate The liabilities, obligations and covenants under the Interlocal Agreement are contingent upon the execution and delivery of the Sublease. In the event the Sublease is not fully executed within 120 days from the date the Interlocal Agreement is fully executed, either party may terminate the Interlocal Agreement. In addition, the City shall have the right to terminate the Interlocal Agreement in the event any of the following conditions are not satisfied within the time period indicated below: (a) Within 12 months after the Effective Date of the Sublease, the Authority and City shall have received satisfactory evidence that sufficient funds have been or will be secured by.the Subtenant under the Sublease for construction of the project. (b) Within 15 months after the Effective Date of the Sublease, the Subtenant shall have commenced construction of the project, subject to Unavoidable Delay. (c) Within 30 months after construction of the project has commenced, the project shall be substantially completed in accordance with the Development Order, subject to Unavoidable Delay. Impositions Authority shall include in the Sublease an affirmative obligation on the part of the Subtenant to pay any and all Impositions, including but not limited to, ad valorem taxes. 01- 772 2 Inkind Services The Sublease shall require the Subtenant to provide the City inkind services each Lease Year having an initial dollar value of not less than $75,000. The inkind services shall consist of (i) a year round discount of 50% off the standard entrance fee to the museum for City residents; (ii) special programs to be monitored by the City Parks and Recreation Department which may include scholarships for field trips, reduced admission charges for families, summer, fall, winter and spring camps or other programming and/or activities of a similar nature; and (iii) use of Subtenant's auditorium for City or City -sponsored events. The amount of inkind services shall be increased each Lease Year by any increase during the prior year in the Consumer Price Index (CPI). In no event shall any CPI adjustment 'result in inkind services per year that is less than $75,000. Insurance Sublease shall require Subtenant, at its sole cost and expense, to provide the insurance more specifically set forth in the Sublease which includes, but is not limited to, commercial general liability, all risk property insurance, automobile and worker's compensation. 3 01- 772