HomeMy WebLinkAboutExhibit 5-28-09 SUBDEVELOPMENT AGREEMENT FOR
MUSEUM PARK PROJECT
by and among
THE CITY OF MIAMI,
a municipal corporation of the State of Florida
and
MUSEUM OF SCIENCE, INC.,
a Florida not-for-profit corporation
and
MIAMI ART MUSEUM OF DADE COUNTY
ASSOCIATION, INC., .a Florida not-for-profit corporation
JULY 9, 2009
MIA LASHN 180,509,934x5 5.7-09 090409,090000
TABLE OF CONTENTS
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MIA LASHN 180, 509,934v5 5-7-09 090409,010000
Page
ARTICLE I
GENERAL PROVISIONS............................................................................... 2
ARTICLE II
SITE CONDITIONS, INSPECTIONS, ACCEPTANCE ..............................
10
ARTICLE III
MUSEUM PARK PROJECT.........................................................................
10
ARTICLE IV
MSM MUSEUM, MAM MUSEUM, AND PARK COMPONENT
PLANS AND CONSTRUCTION..................................................................
15
ARTICLEV
FUNDING......................................................................................................
24
ARTICLE VI
APPROVAL PROCEDURE..........................................................................
25
ARTICLE VII
RELATED DOCUMENTS............................................................................
26
ARTICLE VIII
MORTGAGEES.............................................................................................
27
ARTICLE IX
INSURANCE, CASUALTY AND INDEMNIFICATION ...........................
27
ARTICLEX
DEFAULT......................................................................................................
29
ARTICLE XI
DISPUTE RESOLUTION PROCEDURES ...................................................
31
ARTICLE XII
MISCELLANEOUS PROVISIONS..............................................................
33
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MIA LASHN 180, 509,934v5 5-7-09 090409,010000
DEVELOPMENT AGREEMENT
FOR MUSEUM PARK PROJECT
THIS DEVELOPMENT AGREEMENT FOR MUSEUM PARK PROJECT (the
"Agreement") is made as of the 9th day of July, 2009, by and between THE CITY OF MIAMI, a
municipal corporation of the State of Florida (the "Ci'), MUSEUM OF SCIENCE, INC., a
Florida not-for-profit corporation ("MSM"), and MIAMI ART MUSEUM OF DADE COUNTY
ASSOCIATION, INC., a Florida not-for-profit corporation ("MAM"), All capitalized terns
used herein shall have the meanings set forth in Section 1.2 below, unless otherwise indicated.
WHEREAS:
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 both "Bicentennial Park" and
"Museum Park", which is legally described or depicted in Exhibit A attached hereto ("Museum
Park"); and
WHEREAS, on July 25, 2002, the City Connmission of the City of Miami (the "City
Commission") passed and adopted Resolution No. 02-862 authorizing and directing the City
Manager and City Attorney, inter alia, to negotiate (and finalize negotiations) with MAM and
MSM, for the development of new museum facilities in Museum Park, including without
limitation the terms and conditions of each museum's respective tenancies in Museum Park; and
WHEREAS, the Board of County Commissioners of Miami -Dade County, Florida,
passed and adopted Resolution Nos. R-912-04, R-913-04, R-914-04, R-915-04, R-916-04, R-
917-04, R-918-04 and R-919-04, which authorized the issuance of $2.926 billion in general
obligation bonds for capital projects, including a new art museum and science museum within
Museum Park, which bonds were approved by a majority of those voting on November 4, 2004;
and
WHEREAS, on September 12, 2008, (i) the City, (ii) Miami Sports and Exhibition
Authority, an independent and autonomous agency and instruanerntality of the City (the
"Authority 1), (iii) Miami -Dade County, a political subdivision of the State of Florida (the
"County"), (iv) MAM, (v) MSM, and (vi) the Historical Association of Southern Florida, Inc., a
Florida not-for-profit corporation, entered into a Memorandum of Understanding (the "MOU"),
concerning the development, design, construction and operation of the various components of the
"Museum Park Project" (defined below) in Museum Park; and
WHEREAS, the MOU was approved by the Board of Directors of the Authority on May
14, 2008 and by the County Board of Comini§sioners and the City Com nissiorn by Resolution
Numbers R-435-08 and R-08-0290, respectively; and
WHEREAS, the MOU provides for the City to lease a portion of Muse-Lun Park more
particularly described or depicted in Exhibit B attached hereto and incorporated -herein (the
"PropertX") to the Authority, and for the Authority to thereafter sublease portions of the Property
to each museum, for the development and operation of a first class art museum, a first class
MIA LASHN 180, 509,934V5 5-7-09 090409.010000
science museum and other related facilities and improvements all in accordance with the
provisions of Section 29-B of the City Charter; and
WHEREAS, on November 13, 2008, the City Commission of the City passed and
adopted Resolution No. R-08-0653, authorizing and directing the City Manager to negotiate and
finalize the definitive documents for the Museum Park Project directly with MSM and MAM,
without the involvement. of the Authority, to implement the Museum Park Project in a more
efficient manner; and
WHEREAS, pursuant to that certain Lease Agreement dated April 6, 2009 by and
between the City, as landlord, and MSM, as tenant (the "MSM Lease"), authorized pursuant to
resolution No. R-08-0707 adopted by the City Commission on December 11,' 2008, the City has
ground leased to MSM a portion (the "MSM Site") of the Property consisting of approximately
four (4) acres as legally described on Exhibit C attached hereto (together with any improvements
now or hereafter constructed thereon, the G°MSM Premises"); and
WHEREAS, pursuant to that certain Lease Agreement dated April 6, 2009 by and
between the City, as landlord, and MAM, as tenant (the `IMAM Lease"), authorized pursuant to
resolution No. R-08-0707 adopted by the City Commission on December 11, 2008, the City has
ground leased to MAM a portion (the "MAM Site") of the Property consisting of approximately
four (4) acres as legally described on Exhibit D attached hereto (together with any improvements
now or hereafter constructed thereon, the `IMAM Premises"); and
WHEREAS, MSM desires, pursuant to the MOU and the MSM Lease and subject to
fulfillment of the conditions and in accordance with the other terns, provisions and conditions
hereinafter set forth, to develop, construct and operate a science museum on the MSM Premises;
and
WHEREAS, MAM desires, pursuant to the MOU and the MAM Lease and subject to
fulfillment of the conditions and in accordance with the other terns, provisions and conditions
hereinafter set forth, to develop, construct and operate an art museum on the MAM Premises;
and
WHEREAS, the City desires, pursuant to the MOU and subject to fulfillment of the
conditions and in accordance with the other terns, provisions and .conditions hereinafter set
forth, to develop, construct and operate a park on the Park Component.
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 City, MSM and MAM 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) "Agreed Share" shall have the meaning ascribed to it in Section 3..2 of this
Agreement.
(b) "Agreement" shall mean this Development Agreement.
(c) "Applicable Laws" shall mean any law (including without lianitation, any
Environmental Law), enactment, statute, code, ordinance, administrative
order, charter, tariff, resolution, order, rule, regulation, guideline,
judgment, decree, writ, injunction, franchise, pennit, 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.
(d) "Approvals" shall mean all governmental approvals and permits required
under any Applicable Laws for the commencement of construction of the
Museums or the Park- Component in accordance with the Construction
Plans, as applicable.
(e) "Approval Procedure" shall have the meaning ascribed to it in Article VI
of this Agreement.
(fl "Arbitration" shall mean the arbitration procedures set forth in Article XI
of this Agreement.
(g) "Authorit ' shall mean Miami Sports and Exhibition Authority, an
independent and autonomous agency and instrumentality of the City.
(h) `Building Better Communities General 'Obligation Bond Agreements"
shall mean that certain agreement entitled "Miami -Dade County Building
Better Communities Grant Agreement / New Miami Museum of Science
& Planetarium Facility/Historical Museum of South Florida / GOB Project
Number 297-70430" and dated June 16, .2008, together with that certain
agreement entitled "Miami -Dade County Building Better Communities
Grant Agreement /New Miami Art Museum Facility /GOB Project
Number 296-70428" and dated May 29, 2008, and the subsequent similar
agreements to be executed by MSM and MAM as a requirement of the
funding of the construction of the Museums by the County, all as .
authorized under the Board of County Commissioners of Miami -Dade
County, Florida, Resolution Nos. R-912-04, R-913-04, R-914-04, R-915-
04, R-916-04, R-917-04, R-918-04 and R-919-04, which authorized the
issuance of $2.926 billion in- general- obligation bonds for capital projects
and as approved on November 2, 2004, by a majority of those voting.
(i) "Qty' shall mean the City of Miami, a municipal corporation of the State
of Florida.
0) "City Commission" shall mean the City Commission of the City of Miami.
(k) "City Project Liaison" shall have the meaning ascribed to it in Section 4.3
of this Agreement.
(1) "Construction Plans" shall mean the final construction drawings, working
plans and specifications in sufficient detail for the permitting and
construction of the MSM Museum, the MAM Museum, and the Park
Component, as applicable, to the extent required for permitting particular
improvements. The Construction Plans for each component shall also
include a projected progress schedule for completion of such component.
(in) "Cooper Robertson" shall mean Cooper Robertson & Partners, an
architecture and urban design firm.
(n) "County" shall mean Miami -Dade County, a political subdivision of the
State of Florida.
(o) "County Project Liaison" shall have the meaning ascribed to it in Section
4.4 of this Agreement.
(p) "CSBE" shall have the meaning ascribed to it in Section 4.6 of this
Agreement.
(q) "CWP" shall have the meaning ascribed to it in Section 4.6 of this
Agreement.
(r) "DTA" shall have the meaning ascribed to it in Section 4.6 of this
Agreement:
(s) "Effective Date" shall mean the date of the final signature of this
Agreement by the Parties.
(t) "Environmental Laws" shall mean any federal, state, regional, or local (a)
law, statute, ordinance, provision, regulation, rule, court order, judicial or
administrative order, decision, determination, decree, consent order,
consent decree, consent agreement, or other legal requirement, (b) permit,
license, authorization, or approval, or (c) administrative policy, guideline,
or standard required or legally imposed by a Governmental Authority (as
hereinafter defined), whether now existing or hereinafter enacted,
promulgated, issued, or ordered (including as they may be amended from
time. to tune) relating_ to protection. of the outdoor _environnent
(concerning any and all environmental media), public health, or any
Hazardous Substance (as hereinafter defined). For purposes of this
definition, the term "Environmental Law" shall include as applicable but
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not be limited to the following: (A) the Federal Water Pollution Control
Act, as amended (33 U.S.C. § 1251,et se . ; (B) the Solid Waste Disposal
Act, including the Resource Conservation and Recovery Act, as amended
(42 U.S.C. § 6901, et sea.); (C) the Comprehensive Environmental
Response, Compensation, and Liability Act, as amended (42 U.S.C. §
9601, et sea_); (D) the Superfand Amendments and Reauthorization Act of
1986, as amended (codified in sections of 10 U.S.C., 29 U.S.C., and 42
U.S.C.); (E) the Federal Clean Air Act, as amended (42 U.S.C. § 7401, et
seq.); (F) the Federal Insecticide, Fungicide, and Rodenticide Act, as
amended (7 U.S.C: § 136, et se -q.); (G) the Toxic Substances Control Act,
as amended (15 U.S.C. § 2601,et seg.); (H) the Emergency Planning and
Community Right -to -Know Act, as amended (42 U.S.C. § 11001, et sea.);
(I) the Occupational Safety and Health Act, as amended (29 U.S.C. § 650,
et se . ; (J) the Safe Drinking Water Act, as amended (21 U.S.C. § 349
and 42 U.S.C. §§ 201 and 300f, et seg.); (K) the National Environmental
Policy Act, as amended (42 U.S.C. § 4321, et seg.); (L) the Hazardous
Materials Transportation Act, as amended (49 U.S.C. § 1801,et__ seg.); (M)
the Atomic Energy Act, as amended (42 U.S.C. § 2011, et seg.); (N) the
Federal Food, Drug and Cosmetic Act, as amended (21 U.S.C. § 301, et
sec.); (0) the Endangered Species Act (16 U.S.C. § 1531, et seg.); (P) any
laws regulating the use of biological agents or substances. including
medical or infectious wastes; (Q) Chapter 24 of the Code of Ordinances of
Miami -Dade County, Florida and Chapters 373, 376, and 403 of the
Florida Statutes; and (R) as it relates to subsections (A) through (Q) of this
definition, any and all related rules and regulations, all as in effect on the
date hereof and as may hereafter be amended from time to time.
(u) "Environmental Remediation Agreement" shall have the meaning ascribed
to it in the Leases.
(v) "Governmental Authority" shall mean any federal, state, county,
municipal or other governmental entity or any instrumentality of any of
them, having jurisdiction over the Museum Park Project.
(w) "Improvements" shall mean all improvements to be constructed upon or
installed at the Property, including without limitation the Museums, the
Parking Facility, and all walkways, driveways, lighting facilities, utilities
and other structures and facilities appurtenant to the Museums and the
Parking Facility.
(x) "Infrastructure and Coordination Plan" shall have the meaning ascribed to
it in Section 3.2 of this Agreement.
(y) "Leasehold Mortgage" shall have the meaning ascribed to it in the MSM
Lease as to the MSM Museum, and the meaning ascribed to it in the
MAM Lease as to the MAM Museum.
(z) "Leasehold Mortgagee" shall have the meaning ascribed to it in the MSM
Lease as to the MSM Museum, and the meaning ascribed to it in the
MAM Lease as to the MAM Museum.
(aa) "Leases" shall inean, collectively, the MAM Lease and MSM Lease,
together with any amendments, modifications, restatements and
supplements thereto as may be approved pursuant to the terms thereof.
(bb) "MAM" shall mean Miami Art Museum of Dade County Association,
Inc., a Florida not-for-profit corporation.
(cc) "MAM Buildin&" shall mean the structure to be constructed upon the
MAM Site for the MAM Museum.
(dd) "MAM Commencement Date" shall mean the date the notice to proceed
for the construction of the foundation of the MAM Museum is given
pursuant to Section 4.6 of this Agreement by MAM to its general
contractor or construction manager, as applicable, which date shall not be
earlier than'the Possession Date or later than four (4) years after the
Effective Date, subject to Unavoidable Delay.
(cc) "IMAM Completion Date" shall mean the date that the MAM Museum
(excluding exhibits) is substantially completed, as evidenced by the
issuance of a certificate of occupancy, for the MAM Museum, which shall
be no later than seven (7) years after the' Effective Date, subject to
Unavoidable Delay. .
(f) "MAM Construction Contract" shall have the meaning ascribed to it in
Section 4.2 of this Agreement.
(gg) "MAM Funding .Plan'shall have the meaning ascribed to it in Section 4.2
of this Agreement.
(hh) "MAM Lease" shall mean the lease by the City of the MAM Site to MAM
dated April 6, 2009, together with any amendments, modifications,
restatements and supplements thereto.
(ii) "MAM Museum" shall mean an art museum, together with its portion of
the Parking Facility, loading docks, visitor drop-offs, access roads,
internal site roadways, outdoor features and related amenities and
facilities, to be developed and operated on the MAM Site by MAM as part
of the Museum Park Project pursuant to the terms of this Agreement and
the MAM Lease.
OD "MAM Premises" shall have the meaning ascribed to it in the Recitals.
(kk) "MAM Site" shall have the meaning ascribed to it in the Recitals.
(11) "Management Agreement" shall have the meaning ascribed to it in Section
7.1 of this Agreement.
(rmn) "Minimum Park Improvements" shall have the meaning ascribed to it in
Section 5.3 of this Agreement.
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(nn) "MOU" shall have the meaning ascribed to it in the Recitals.
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(oo) "MSM" shall mean Museum of Science, Inc., a Florida not-for-profit
corporation.
(pp) "MSM Building" shall mean the structure to be constricted upon the
MSM Site for the MSM Museum.
(qq) "MSM Commencement Date" shall mean the date the notice to proceed
for the construction of the foundation of the MSM Museum is given
pursuant to Section 4.6 of this Agreement by MSM to its general
contractor or construction manager, as applicable, which date shall not be
earlier than the Possession Date or later than four (4) years after the
Effective Date, subject to Unavoidable Delay.
(rr) "MSM Completion Date" shall mean the date that the MSM Museum
(excluding exhibits) is substantially completed as evidenced by the
issuance of a certificate of occupancy for the MSM Museum, which shall
be no later than seven (7) years after the Effective Date, subject to
Unavoidable Delay.
(ss) "MSM Construction Contract" shall have the meaning ascribed to it in
Section 4.2 of this Agreement.
(tt) "MSM Funding Plan' shall have the meaning ascribed to it in Section 4.2
of this Agreement. .
(uu) "MSM Lease" shall mean the lease by the City of the MSM Site to MSM,
dated April 6, 2009, together with any amendments, modifications,
restatements and supplements thereto.
(vv) "MSM Museum" shall mean a science museum, together with its portion
of the Parking Facility, loading docks, visitor drop-offs, access roads,
internal site roadways, outdoor features and related amenities and
facilities, to be developed and operated on the MSM Site by MSM as part
of the Museum Park Project pursuant to the terns of this Agreement and
the MSM Lease.
(ww) "MSM Premises" shall have the meaning ascribed to it in the Recitals.
(xx) "MSM Site" shall have the meaning ascribed to it in the Recitals.
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(yy) "Museum Park" shall have the meaning ascribed to it in the Recitals.
(zz) "Museum Park Master Plan" shall mean the master plan for the Museum
Park Project developed by Cooper Robertson dated December, 2006 and
approved by the City on March 13, 2008, MSM on July 29, 2008, and
MAM on March 18, 2008, as amended from time to time.
(aaa) "Museum Park Project" shall mean the development, construction,
management and operation of the Museums and the Park Component, and
any other related facilities and improvements in Museum Park, which are
incidental and ancillary to the operation of the Museums and the Park
Component, to be designed and developed in accordance with the
Museum Park Master Plan and this Agreement.
(bbb) "Museum Park Steering Group" shall have the meaning ascribed to it in
Section 3.9 of this Agreement.
(ccc) "Museums" shall mean the MAM Museum and MSM Museum,
collectively.
(ddd) "NDZ" shall have the meaning ascribed to it in Section 4.6 of this
Agreement.
(eee) "Omni CRA" shall have the meaning ascribed to it in Section 5.3 of this
Agreement.
(fM "Park Component" shall mean the portion of the Museum Park Project
consisting of approximately 21 acres of land in Museum Park located
adjacent to the Property, which, subject to Sections 3.5 and 5.3 of this
Agreement, is to be designed, developed and operated by the City or its
designees in accordance with the Museum Park Master Plan, including
without limitation all improvements necessary to support the park
landscaping, structures, infrastru.eture, access roads and parking, as same
may be amended from time to time in accordance with Section 3.5 of this
Agreement.
(ggg) "Parking Facility" shall have the meaning ascribed to it in Section 3.3 of
this Agreement.
(hhh) "Part ' 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 Agreement and their respective successors and assigns.
(iii) "Plaza Improvements" shall mean the plaza and the portion of the Parking
Facility to be located under the plaza between the Museums, as same may
be modified or redesigned pursuant to Section. 3.3 of this Agreement.
Oij) "Plaza Improvements Allocation" shall have the meaning ascribed to it in
Section 4.2(a) of this Agreement.
(kkk) "Possession Date" shall mean, for each Site, the date that the City delivers
possession of such Site to the applicable Tenant under the Leases,
provided that in no event shall the Possession Date occur prior to the date
that .the conditions set forth in Section 2.3 of the respective Leases have
been satisfied.
(111) `.`Project Coordination Team" shall have the meaning ascribed to it in
Section 3.10 of this Agreement.
(mmm)"Pr. opertY' shall have the meaning ascribed to it in the Recitals.
(nnn) "SBE" shall have the meaning ascribed to it in Section 4.6 of this
Agreement.
(000) "Site" shall mean individually each of the MAM Site and MSM Site, and
"Sites" shall mean collectively both the MAM Site and the MSM Site.
(ppp) "Tenant" shall mean each of MAM, as lessee under the MAM Lease and
MSM, the lessee under the MSM Lease (collectively, the Tenants), and
their respective successors and permitted assigns.
(qqq) "Unavoidable Delay" shall have the meaning ascribed to it in Section 10.4
of this Agreement.
(rrr) "Wind and Solar Restriction" shall have the meaning ascribed to it in
Section 3.8 of this Agreement.
Section 1.3. Authority to Enter into Agreements. The City represents, covenants and
warrants to each of MSM and MAM that it has a valid right to enter into this Agreement and to
perinit MSM to develop the MSM Museum on the MSM Site and to permit MAM to develop the
MAM Museum on the MAM Site. MSM represents, covenants and warrants to the City and
MAM that it has a valid right to enter into this Agreement. MAM represents, covenants and
warrants to the City and MSM that it has a valid right to enter into this Agreement.
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 last
to occur of (i) the MSM Completion Date, (ii) the MAM Completion Date, (iii) the applicable
completion date, if only one Museum proceeds under this Agreement, and (iv) the date of
completion of the Minimum Park Improvements, but in no event later than seven (7) years fiom
the Effective Date (unless extended by the Parties in writing).
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ARTICLE II .
SITE CONDITIONS, INSPECTIONS, ACCEPTANCE
MSM and MAM have each conducted all tests, inspections and investigations of their
respective portions of the Sites as they have deemed necessary and, each accepts its respective
Site in "as -is" condition, and accepts complete responsibility for conditions- encountered at their
respective portions of the Site, including, but not limited to, unforeseen, subsurface or otherwise
concealed physical conditions, but specifically excluding enviromnental conditions, which shall
be dealt with pursuant to the terms of the Enviromnental Remediation Agreement. For
avoidance of doubt, this does not include any enviromnental condition on or relating to the Sites
which is not in compliance with any Environmental Laws and/or as may need remediation or
work to provide clean Sites ready for the construction of the Museums, which issue is dealt with
in the Environmental Remediation Agreement.
ARTICLE III
MUSEUM PARK PROJECT
Section 3.1. Development of Museum Park Project. MSM, MAM, and the City, or the
City's designee, shall each serve as the developer of the MSN.[ Museum, MAM Museum, and the
Park Component, respectively. Each shall (a) manage and control the design, development and
construction of its component, (b) be responsible for all pre -development issues required for its
component, including but not limited to, regulatory reviews and approvals, traffic, parking and
engineering analysis, all in accordance with Applicable Laws and in general conformance with
the Museum Park Master Plan, (c) retain appropriate professionals to assist in the performance of
these obligations, (d) except as otherwise expressly provided herein, in the Leases or the
Environmental Remediation Agreement, pay the costs for same from. its own fiends, and (e)
coordinate its activities with the other Parties.
Section 3.2. Infrastructure.
(a) Site Improvements. MSM and MAM shall each be responsible for the
performance of all work and the payment of all costs required to design,
develop, construct, and maintain all site improvements required for
construction of their respective museums, which shall include but not be
limited to demolition, utility relocations, water, sewer and sanitation work
(including any work required to bring utilities or sanitation for the
Museums to the Sites), street improvements, landscaping and hardscaping,
and other customary infrastructure work within the boundaries of the
MSM Site and MAM Site, as applicable. The City shall be responsible for
the performance of all work and the payment of all costs required to
design, develop, construct, and maintain all site improvements required for
construction 'of the Park Component, which shall include but not be
limited to demolition, utility relocations, water, sewer and sanitation work,
street improvements, landscaping and hardscaping, and other customary
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infrastructure work within the boundaries of the Park Component but
excluding the Sites.
(b) Infrastructure and Coordination Plan. The City and Museums shall work
cooperatively, diligently, and in good faith with each other to develop an
infrastructure and coordination plan ("Infrastructure and Coordination
Plan") for the Museum Park Project that sets forth and coordinates
infrastructure needs for each of the Museums and, to the extent mutually
beneficial and economically feasible, for the Park Component, provided
that the City agrees in advance and in writing to pay its Agreed Share in
connection with such shared infrastructure. The Agreed Share as to each
of the Parties in any item of shared infrastructure shall be the share of all
of the actual costs and expenses (hard and soft) on account of any such
infrastructure, as agreed in advance in writing signed by each participating
Party. The Parties shall use commercially reasonable, good faith efforts to
agree on the Agreed Share for each Party, taking into consideration the
rights of use and other benefits to inure to each of the participating Parties.
If a provider of utilities requires that capacity be provided for the entire
Museum Park Project in order for the Museums to obtain service, then the
City shall participate in all negotiations with the utilities provider
regarding each Party's Agreed Share of such shared infrastructure. The
City agrees that it will pay its Agreed Share of such shared infrastructure
at the time payment is due to the utility provider if the City currently has
available funds for such use, and otherwise on a reimbursement basis to
MSM and MAM when the City has such funds available. Any disputes
regarding the Agreed Share for any Party in connection with such
provider -required shared infrastructure shall be resolved pursuant to
Article XI below. As of the Effective Date, the City has not yet identified
sufficient funds to complete the Park Component as shown in the Museum
Park Master Plan, and it is likely that the Park Component and related
infrastructure will not be.developed on the same schedule as the rest of the
Museum Park Project. The Museums have submitted a preliminary draft
of the Infrastructure and Coordination Plan showing proposed connections
to the existing water, sanitary sewer and stonnwater drain mains, MSM's
connection to the bay for its seawater lines (and related utilities), electrical
utilities and conduits within and outside Museum Park, and other
necessary infrastructure, to the City and to Cooper Robertson, a copy of
which is attached hereto as Exhibit E. The City shall have until July 15,
2009 to review the preliminary Infrastructure and Coordination Plan for
compliance with Article III of the Leases and with this Agreement, and
shall approve or disapprove same with recommended changes and
adjustments to bring it into compliance, all in accordance with the
Approval Procedure, The Parties shall grant the easements required under
the approved Infrastructure and Coordination Plan (subject to City
Commission approval, if necessary), on a reasonable and timely basis. The
Parties agree to work cooperatively, diligently, and in good faith with each
other to finalize the Infrastructure and Coordination Plan no later
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September 15, 2009, and to update same from time to time as necessary
for the orderly, timely, and proper coordination and construction of the
Museum Park Project.
Section 3.3. Museum Common Areas and Parking. MAM and MSM shall work
together to design, develop and operate the common or shared areas of the Museums including
without limitation the plaza, Museum Drive (as defined in the Leases), and the parking
facilities (the "Parkin FAX"). The Parking Facility shall be designed and operated as a
single, continuous under -building and under plaza parking structure with a minimum of 440
parking spaces in the aggregate, as provided in Article III of the Leases. The Parties recognize
the likelihood that the Improvements on each Site will be constructed and completed at
different times. Accordingly, the portion of the Parking Facility under each of the Museums
may be designed and constructed (and, if necessary, operated) as an independent structure from
the portion of the Parking. Facility under the other museum to allow each of the Tenants to
obtain building permits, certificates of occupancy, occupational licenses and all other
applicable authorizations, approvals, permits and licenses as may be necessary to develop,
construct, operate, manage, maintain and repair such Improvements, irrespective of whether
the Improvements on the other Site are underway, completed and/or in operation. The Plaza
Improvements may, at the option of MSM and MAM, be constructed after completion of both
Museums to allow for coordination of construction but in no event later than seven (7) years
after the Effective Date. MAM and MSM shall each be responsible for the construction,
operation and management of the portion of the Parking Facility located within its Site, at its
sole cost and expense. If one of the Leases is terminated prior to the completion of construction
of the Plaza Improvements under that terminated Lease, then the Tenant under the remaining
Lease shall provide a minimum of 300 below grade parking spaces in conformance with the
Museum Park Master Plan, provided the City snakes available and leases to such Tenant
additional adjacent land sufficient to accommodate the additional parking spaces. However,
the sole remaining Tenant and the City will work diligently together and in good faith to obtain
funding (including without limitation the right to use the Plaza Improvements Allocation of the
terminated Tenant), execute necessary lease amendments, cooperate in the redesign and
redevelopment of the Plaza Improvement area and otherwise facilitate the construction of the
plaza and related parking facility, all in light of the changed circumstances at that time. The
terminated Tenant will cooperate with the remaining Tenant and the City in pursuing and
obtaining any necessary authorization for the use of such Plaza Improvements Allocation for
the redesign, redevelopment and/or construction of the Plaza Improvements,
Section 3.4. Park Congponent Parking. The City shall be solely responsible for all
costs required to design, construct, develop and operate parking located in and necessary for the
Park Component.
Section 3.5. Changes to Park Corm oU nent. The City reserves the right at any time and
from time to time, subject to Section 3.8 below and the other provisions of this Agreement,
including without limitation Section 5.3 to: (a) make or permit reasonable changes or revisions in
its plan for the Park Component, including additions to, subtractions Rom, rearrangements of
alterations of, modifications of, or supplements to building areas, improvements, walkways,
parking areas, driveways and other Park Component areas; (b) construct other buildings or
improvements in the Park Component, all in general conformance with the Museum Park Master
12
Plan; and (c) convey all or portions of the Park Component for the purpose of constructing
thereon other buildings or improvements, including additions thereto and alterations thereof, all
in general conformance with the Museum Park Master Plan and any restrictions on transfer set
forth in the Management Agreement; provided that there is consensus among the members of
the Museum Park Steering Group (defined as an agreement reached by the vote of the majority
of members of the Museum Park Steering Group voting on a particular matter ) that: (i) such
development, changes or alterations do not materially affect the Museums' ability to operate or
construct their respective projects as intended and (ii) any such change is consistent with the
purpose and design intent of the Museum Park Master Plan. Provided that the foregoing
conditions are met, the Museums agree to cooperate with the City in the development, changes
and/or alterations to the Park Component consistent with the provisions of this Section, including
specifically by providing necessary approvals pursuant to the Approval Procedure described in
Article VI below required for such development, changes and/or alterations, including being a
co -applicant as necessary, provided that the City is responsible for all costs related thereto. If
there is a lack of consensus among the members of the Museum Park Steering Group under
clauses (i) and (ii) above, the matter shall be resolved in Arbitration pursuant to Article XI
below. If necessary, the Museums shall cause anyone obtaining an interest in the Property
through the Museums (or either of them) including, but not limited to, a Leasehold Mortgagee, to
execute such approvals as may be necessary in order for any development, change or alteration
meeting the requirements of this Section to take place, in accordance with the Approval
Procedure, provided that the City is responsible for all costs related thereto. Any such additions
or changes to or expansion of the Park Component shall be developed and constructed in
accordance with the terms and conditions applicable to the initial construction of the Park
Component under this Agreement. This provision shall survive the expiration or earlier
termination of this Agreement.
Section 3.6. Cooperation during Development and Planning. The Parties acknowledge
the likelihood that the Improvements on each Site will be constructed and completed at different
times, and that the Park Component may not be. fully developed until the opening of the
Museums, as more particularly described in Section 3.2. The Parties agree to cooperate and
work in good faith with each other in coordinating development of each of their components of
the Museum Park Project in order not to unreasonably interfere with each others' construction
activities and schedules. Each Party shall work cooperatively and in good faith with the other
Parties to maintain project timetables. The Parties agree to cooperate and work in good faith
with each other, with each other's design teams and with Cooper Robertson in creating a
coherent ensemble of buildings and open spaces which accommodate the operational
requirements of the Museums, are enhanced by the park setting, and reinforce the activities and
character of the Museum Park Project. In order to enable the Parties to achieve this goal, the
City agrees to allow MSM and MAM to participate in City meetings with Cooper Robertson.
However, the City shall not be obligated to call special meetings with Cooper Robertson for
MSM or MAM unless the requesting entity agrees to pay Cooper Robertson's fees for such
meetings. Moreover, any work requested by MAM or MSM of Cooper Robertson must be made
through the City's designated representative and shall be paid for by the requesting entity unless
it is a request that is expressly included in the basic services to be provided by Cooper
Robertson under its agreement with the City. Unless otherwise provided in writing by the City
Manager, the City's designated representative shall be the same as the City's representative in
the Project Coordination Team.
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Section 3.7. Replat. The Parties acknowledge that the City is currently in the process
of replatting Museum Park to vacate all previously existing utility easements and correct the
boundary line of Pump Station #2. The City agrees that it shall proceed diligently to pursue the
submittal and finalization of the tentative and final replat with the appropriate Governmental
Authority. The City shall keep the Museums updated on the status of the replat at the monthly
Museum Park Steering Group meetings.
Section 3,8. Wind and Solar Restriction. In addition to the City's agreement to restrict
improvements within the Park Component to be consistent with the Museum Park Master Plan,
the City agrees to limit the height of permanent improvements within an area of 400 feet from
the Museums to a maximum height of 40 feet. Flagpoles will be excepted from the foregoing
restriction. The initial term of the Wind and Solar Restriction shall ran concurrently with the
first thirty (30) year term of the Leases. Not later than thirty-six (36) months (x) prior to the end
of the initial thirty year tern, and (y) if then extended, prior to the end of each subsequent
renewal tern, the City agrees to give good faith consideration to extending the Cerin of the Wind
and Solar Restriction for the period of the next applicable term under the Leases, with the
approval of the City Commission. The City agrees to execute and record a Wind and Solar
Restriction in favor of the Museums in substantially the form attached hereto as Exhibit F
simultaneously with providing record notice of the Leases.
Section 3.9. Museum Park Steering Group.
(a) Composition, Function, and Governance. The Museum Park Steering
Group shall be comprised of the president of MSM, executive director of
MAM, the City Mayor, the County Mayor, the Director of the City's Parks
and Recreation Department, and the Executive Director of the Bayfront
Park Management Trust of the City of Miami (or its successor, if any) or
their designees. The function of the Museum Park Steering Group is (i) to
oversee and assist in coordinating the planning, design and construction of
the Museum Park Project, (ii) to assist in expedited good faith,
collaborative problem -solving and conflict resolution among the Patties
pursuant to this Agreement and commercially reasonable rules to be
adopted by the Museum Park Steering Group, which rules shall be
designed to achieve the goals of the Museum Park Steering Group
(including those specifically described in the Leases), and (iii) to
constitute the governing body under the Master Management Agreement.
In addition to rules for expedited problems resolution, the Museum Park
Steering Group shall adopt reasonable rules regarding its own governance.
(b) Meetings. The Museum Park Steering Group shall establish a regular
meeting schedule and beginning in September, 2009, shall meet no less
frequently than inonthly to allow members to provide applicable reports,
plans, and other information, discuss the progress and coordination of the
various components of the Museum Park Project so as not to unreasonably
interfere with each other's work or the operation of the Museums, and
address issues and problems that arise in a good faith, collaborative
manner. The City Project Liaison, County Project Liaison, and the Project
14
Coordination Team shall be entitled to attend all Museum Park Steering
Group meetings.
(c) Reports. Each Party agrees to provide the other Parties with (i) copies of
its design team's scope for work, (ii) estimated timetables (with periodic
updates) for each major stage of the architectural and engineering work on
its component of the Museum Park Project, and (iii) reports containing
cost and budget information. These reports shall be delivered at the
Museum Park Steering Group meetings on a monthly basis during both
design development and during construction of the components of the
Museum Park Project. The provision of information and materials under
this Section is intended solely for informational purposes in the
coordination of the development of each portion of the Museum Park
Project, and not for purposes of consent, approval, or comment by any
Party.
Section 3.10. Museum Park Project Coordination Team. The Parties shall form an
administrative cornmittee (the "Project Coordination Team") that shall include one representative
each to be designated in writing by MSM, MAM, and the City. Those representatives or their
designees shall attend all meetings of the Project Coordination Team, and shall work together to
assist in coordinating the planning, design and construction of the Museum Park Project. The
Project Coordination Team shall agree on a start date, which shall be no later than January 4,
2010, and, thereafter, meet no less frequently than weekly to make available (with any copies to
be made at the receiving party's expense) applicable schedules, reports, plans (including the
Construction Plans), construction contracts, updates to the foregoing and other information, and
to discuss the progress and coordination of the various components of the Museum Park Project
in order to allow the Parties to develop their components without unreasonable interference with
each other's work or the operation of the Museums, and to address issues and problems that arise
in a good faith, collaborative manner. It shall be the responsibility of the representatives of the
Project Coordination Team to make available at such meetings any necessary additional staff or
representative of such Party and/or additional information in order to enable the Project
Coordination Team to carry out its duties. The City Project Manager and the County Project
Manager shall be entitled to attend meetings of the Project Coordination Team. The Project
Coordination Team shall make provision to call special meetings upon reasonable prior notice
from any member of the Project Coordination Team. The members of the Project Coordination
Team or their designees will attend the meetings of the Museum Park Steering Group in order to
provide information to the Museum Park Steering Group, including without limitation regarding
the reports of the Parties described in Section 3.9 above.
ARTICLE IV
MSM MUSEUM, MAM MUSEUM, AND PARK COMPONENT PLANS AND
CONSTRUCTION
Section 4.1. Plans. The City acknowledges that it has no interest or ownership rights to
the Plans or any other plans developed by either MSM or MAM for the Museums (including
without limitation the Construction Plans) and, if either MSM or MAM does not proceed with
15
the MSM Museum or MAM Museun%, for any reason whatsoever, each of the Museums shall
retain any and all rights it may have with respect to all such plans. Each of the Museums agrees
to provide a set of final "as -built" drawings to the City not later than thirty (30) days following
the issuance of its certificate of occupancy.
Section 4.2. Construction Agreements.
(a) Museum Construction Agreements. Each of MSM and MAM shall select
Florida licensed contractor(s) and/or construction managers) to construct
its component of the Museum Park Project in accordance with state and
local law. Each of MSM and MAM shall enter into a fixed price
construction contract (the "MSM Construction Contract" and the "MAM
Construction Contract", respectively) for the construction of the MSM
Museum and the MAM Museum, respectively, either in the form of (i) a
stipulated sum or (ii) on the basis of the cost of the work plus a fee, with a
guaranteed maximum price or (iii) construction manager at risk with a
guaranteed maximum price, with a completed Schedule of Values and
projected construction schedule. Such initial fixed prices shall not exceed
the amounts for same shown in the MSM Funding Plan and MAM
Funding Plan to be provided to the City Manager no later than 180 days
prior to each Museum's Commencement Date, and shall include a
contingency fund in an amount not less than three percent (3%) of the
Cost of Work (as defined in such construction contracts). In addition, the
MSM Funding Plan and MAM Funding Plan shall each show (x) a
separate owner -controlled contingency fund in an amount not less than
four percent (4%) of the Cost of Work to be used for unforeseen
conditions, and (y) an allocation (the "Plaza Improvements Allocation")
for each Tenant's share of the cost to construct its portion of the Plaza
Improvements, which shall not be less than $3,000,000. The Plaza
Improvements Allocation may be used by each Tenant for the construction
of its portion of the Plaza Improvements, and for no other purpose.
(b) City Construction and Agreements. The City shall select Florida licensed
contractor(s) and/or construction manager(s) to construct the Park
Component of the Museum Park Project in accordance with Applicable
Laws: The City shall, at its option, engage a general contractor or
construction manager under a fixed price contract or oversee the
construction of the Park Component directly. The City shall, at its option,
be permitted to perform some of the work on the Park Component itself,
provided such work is done in compliance with Applicable Laws.
Section 4.3. _City Project Liaison. The City may utilize its own staff or it may hire and
designate by written notice to MSM and MAM a third party independent project management
firm, which is not a member of the design team for either of the Museums or the City (the "City
Project Liaison") to (i) review the plans and specifications for the Museums (but only for the
purposes and as specifically described in this Article IV); (ii) review the reports regarding
progress of construction as described in Article III above; and (iii) attend meetings and otherwise
16
review and monitor on the City's behalf the design and construction of the Museum Park Project.
The costs of such services shall be paid by the City.
Section 4.4. Count. Project Liaison. The Parties acknowledge that the County may
utilize its own staff or may hire a third party independent project management firm, which is not
a member of the design team for either of the Museums or of the City (the "County Project
Liaison"), to review and monitor on the County's behalf the design and construction of the
Museum Park Project. The costs of such services shall be paid by the County. The Parties shall
cooperate with the County to facilitate the County's review.
Section 4.5. Conformity with Applicable Laws and Master Plan. The Construction
Plans, and all work performed by MSM with respect to the MSM Museum and by MAM with
respect to the MAM Museum and the construction of the Museums, shall be in conformity with
this Agreement, the Museum Park Master Plan, and all Applicable Laws. The Construction
Plans, all work perforined by the City with respect to the Park Component, and all construction
of the Park Component shall be in conformity with this Agreement, the Museum Park Master
Plan, and all Applicable Laws,
Section 4.6. Construction of the Museums.
(a) Each of MSM and MAM shall be entitled to commence site work and
utility work on the Possession Date, provided that it has complied with the
applicable insurance requirements of Section 13.2 of the Leases.
(b) Each of MSM and MAM shall be entitled to commence construction of
the foundations and any other component of its Improvements once it has
provided to the City' evidence reasonably satisfactory to the City Manager
that (i) it has secured funds for construction of the MSM Museum or
MAM Museum (as applicable), in each case excluding certain exhibits, as
more particularly described in the MSM Funding Plan and MAM Funding
Plan (as applicable) described in Article V of this Agreement, (ii) it has
obtained the applicable required permit(s) for the current stage of
construction, (iii) it has obtained a fixed or guaranteed maximum price
construction contract for the applicable component to be constructed, (iv)
it has complied with the applicable insurance requirements of Section 13.2
of the Leases for the current stage of construction, '(v) it has provided to
the City a cost -loaded construction schedule for the MSM Museum or
MAM Museum (as applicable), in each case excluding exhibits, that
demonstrates its ability to complete the construction of its facility within
the time stipulated in this Agreement, and (vi) it has issued a notice to
proceed for the foundation work, which shall be deemed to be the MSM
Commencement Date or the MAM Commencement Date, as applicable.
(c) During the construction of each of the Museums, the work of each of
MSM and MAM shall be available for reasonable observation by the City
Project Liaison and the County Project Liaison, during normal
construction hours (7 a.m. to 3 p.m. on weekdays except for legal
17
holidays) provided that all safety and insurance requirements are complied
with and such inspection does not interfere with the progress of the
construction work.
(d) It is anticipated that the MSM Museum shall be no less than 250,000
program square feet. The square footage for the MSM Museum size is
subject to change based on factors such as construction market conditions.
Any increase or decrease of greater than fifteen percent (15%) in program
square feet shall be subject to the review and approval of the County and
the City and subject to the requirements of the Building Better
Communities General Obligation Bond Agreements. However, if the
County requires review and approval of increases or decreases of less than
15% in program square feet, then the approval of the City shall also.be
required,
(e) It is anticipated that the MAM Museum shall be no less than 100,000
program square feet, The square footage for the MAM Museum size is
subject to change based on factors such as construction market conditions.
Any increase or decrease of greater than fifteen percent (15%) in program
square footage shall be subject to the review and approval of the County
and the City and subject to the requirements of the Building Better
Communities General Obligation Bond Agreements. However, if the
County requires review and approval of increases or decreases of less than
15% in program square feet, then the approval of the City shall also be
required.
(f) The provisions set forth in this subsection shall apply to the extent that
compliance with such provisions does not impair the Museums' ability to
obtain fanding from the County under the Building Better Communities
General Obligation Bond Agreements. In the event compliance with one
of the following provisions impairs the Museums' ability to obtain
fanding, as aforementioned, then, at the option of the City, the
provision(s) that impair the Museums' ability to obtain such funding shall
be deleted or amended to give it effect without impairing funding by the
County under the Building Better Conimunities general Obligation Bond,
Agreements, and, in the case of an amendment, without increasing the
Museums' obligations, or decreasing their rights, under this Agreement.
The Museums acknowledge that they will be subject to, and shall use
diligent good faith efforts to comply with, the Miami -Dade County
Community Small Business Enterprise ("CSBE") and Miazni-Dade
County Small Business Enterprise ("SBE") goals established by the
County or the City Manager for each construction trade package in the
construction of the Museums. The Museums agree that CSBEs and SBEs
having an actual place of business in the City, including areas that have
been designated in the City's Community Development Plan as
Neighborhood Development Zones ("NDZ"), as depicted in Exhibit G,
shall be given an equal opportunity to compete for business in. the
HH:
construction of the Museums. MAM and MSM agree to include in each of
the MAM Construction Contract and MSM Construction Contract a
prohibition against imposing any requirements on CSBEs/SBEs that are
not customary, not in compliance with law, or that imposea financial
burden that unreasonably impacts CSBEs and/or SBEs. MAM and MSM
also agree to include in each of the MAM Construction Contract and
MSM Construction Contract and in each bid package a commitment'to use
diligent efforts to comply with all of the CSBE and SBE goals set forth in
this section. The construction of each of the Museums shall be subject to
a Miami -Dade County Coimnunity Workforce Program ("CWP") goal of
15%. MSM and MAM may utilize SBD's hiring clearinghouse, to recruit
workers to fill needed positions for skilled laborers for the construction of
the Museums, as well as any available Workforce Development
Organizations, Workforce Recruitment/Referral Organizations and other
job hiring databases (including the South Florida Workforce and other
union and non-union clearinghouses), and including those in designated
target areas ("DTAs") in Miami -Dade County, and the DTA in which the
Sites are located. MSM and MAM shall use good faith, efforts to recruit
workers from the DTAs and NDZs to satisfy the CWP goal. In addition,
MSM and MAM will aspire to have as many local workers and local firms
as reasonably practical and aspire to have at least 50% of the workers for
the construction of the Museums be residents of Miami -Dade County,
20% of which are City of Miami residents, and aspire to have at least 35%
of the firms hired as subcontractors for the construction of the Museums
be firms located within Miami -Dade County, 20% of which are firms
located within the City of Miazni. During the term of construction, MSM
and MAM shall provide quarterly reporting regarding the progress on the
CSBE, SBE, and CWP goals described above. MSM and MAM shall
implement a small business outreach program designed to increase small
business participation during the construction of the Museums with a view
to supporting the aspirational small business and local hiring goals
described above, subject to Applicable Law. MSM and MAM shall
comply with all conditions and requirements imposed on thein by the
County related to the construction of the Museums and the goals described
above.
Section 4.7. Permits and Approvals. MSM and MAM shall each secure and pay for
any and all Approvals necessary for proper construction and completion of its museum, as and
when required for the then current stage of development and/or construction of such museum.
The City recognizes its role ui the development of the Museum Park Project and shall use
reasonable, diligent efforts to take actions necessary to facilitate the pern?itting process in order
to facilitate the commencement and completion of construction of each of the MSM Museum
and the MAM Museum, as soon as practicable. The City, in its role as a municipality, shall
designate an individual within the City Manager's office who will have a primary (though not
exclusive) duty to serve as the City's point of contact and liaison with MSM and MAM in order
to facilitate and coordinate the review and processing of all permit and license applications
19
across all of the various departments and offices of the City which have the authority or right to
review and approve all applications for permits and licenses.
Section 4.8. Patent and Performance Bond. Each of MSM and MAM shall secure
and pay for a payment and performance bond in accordance with Section 255.05 of Florida
Statutes for the construction of the MSM Museum and MAM Museum, as applicable, issued by a
bonding company reasonably satisfactory to the County and the City, or reasonably equivalent
security. The rights of the County and the City under the bond(s) shall be subordinate to the
rights of any Leasehold Mortgagee.
Section 4.9. Access, Construction Staging and Parking; Seawater Line Easement.
MSM and MAM shall use (i) the access area described in the access easement shown on Exhibit
H attached hereto, and (ii) the construction staging and parking areas described in the
Construction Staging and Parking Easement shown on Exhibit I attached hereto, each of which is
to be granted pursuant to Section 3.1 of the Leases. The Construction Staging and Parking
Easement shown on Exhibit I replaces in its entirety Exhibit D-2 to the Leases. For its seawater
line and related equipment, MSM shall use the easement area described in the seawater line
easement shown on Exhibit J attached hereto to be granted pursuant to Section 3.1 of the Leases.
Section 4.10. Mechanics' Liens.
(a) MSM shall not knowingly suffer or permit any mechanics' liens to be filed
against the title to the Property or the Museums or the Park Component,
nor against MSM's nor MAM's interest in the Property by reason of work,
labor, services or materials supplied to MSM or anyone having a right to
possession of the MSM Site or the MSM Museum. Nothing in this
Agreement shall be construed as constituting the consent or request of the
City, 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 MSM Site or
the MSM Museum nor as giving MSM the right, power or authority to
contract for or pen -nit the rendering of any services or the furnishing of
any materials that would give rise to the filing of any mechanics liens
against the City's interest in the MSM Site. If any mechanics' lien shall at
any time be filed due to the actions of or by a person or entity claiming
through MSM against the MSM Site or the Property, MSM shall cause it
to be discharged of record within thirty (30) days after the date MSM has
knowledge of its filing. If MSM shall fail to discharge such mechanics'
lien within that period, then in addition to any other right or remedy, either
MAM (if such lien affects the MAM Site) or the City 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. Either MAM or the City as applicable shall be entitled, if it so
elects, and without waiving any rights or remedies for default hereunder,
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
20
understanding that all amounts paid by either MAM (if such lien affects
the MAM Site) or the City, as applicable, shall be repaid to MAM or the
City by MSM, immediately upon rendition of any invoice or bill by MAM
or the City. MSM shall not be required to pay or discharge any
mechanics' lien so long as MSM shall (i) in good faith proceed to contest
the lien by appropriate proceedings, (ii) have given notice in writing to
MAM and the City of its intention to contest the validity of the lien and
(iii) 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. Neither MAM nor the City shall be entitled
to pay the lien or compel the prosecution of any action with respect thereto
during any time that MSM is contesting such lien and has provided to
MAM and the City reasonably satisfactory evidence that it has the funds
available to pay the amount of the contested lien as provided above.
(b) MAM shall not knowingly suffer or permit any mechanics' liens to be
filed against the title to the Property or the Museums or the Park
Component, nor against MSM's nor MAM's interest in the Property by
reason of work, labor, ,services or materials supplied to MAM or anyone
having a right to possession of the MAM Site or the MAM Museum.
Nothing in this Agreement shall be construed as constituting the consent
or request of the City, expressed or implied, by inference or otherwise, to
any contractor, subcontractor, laborer or materiahnan for the performance
of any labor or the furnishing of any materials, for any specific work on
the MAM Site or the MAM Museurn nor as giving MAM 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 City's interest in the MAM Site. If any
mechanics' lien shall at any time be filed due to the actions of or by a
person or . entity claiming through MAM against the MAM Site or the
Property, MAM shall cause it to be discharged of record within thirty (30)
days after the date MAM has knowledge of its filing. If MAM shall fail to
discharge such mechanics' lien within that period, then in addition to any
other right or remedy, either MSM (if such lien affects the MSM Site) or
the City 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. Either MSM or the City as applicable
shall be entitled, if it so elects, and without waiving any rights or remedies
for default hereunder, to compel the prosecution of any action for the
foreclosure of the mechanics' lien by the lienor and to pay the arnount of
the judgment, if any, in favor of the lienor with interest, costs and
allowances with the understanding that all amounts paid by either MSM
(if such lien affects the MSM Site) or the City, as applicable, shall be
repaid to MSM or the City by MAM, immediately upon rendition of any
invoice or bill by MSM or the City. MAM shall not be required to pay or
discharge any mechanics' lien so long as IMAM shall (i) in good faith
21
proceed to contest the lien by appropriate proceedings, (ii) have given
notice in writing to MSM and the City of its intention to contest the
validity of the lien and (iii) furnish reasonably satisfactory evidence that
funds are or will be available to pay the amount ofthe contested lien claim
with all interest on it and costs and expenses, including reasonable
attorneys' fees to be incurred in connection with it. Neither MSM nor the
City shall be entitled to pay the lien or compel the prosecution of any
action with respect thereto during any time that MAM is contesting such
lien and has provided to MSM and the City reasonably satisfactory
evidence that it has the funds available to pay the amount of the contested
lien as provided above.
(c) The City shall not knowingly suffer or permit any mechanics' liens to be
filed against the title to the Property or the Museums, nor against MSM's
nor MAM's interest in the Property by reason of work, labor, services or
materials supplied to the City or anyone having a right to possession of the
Park Component or any portion thereof Nothing in this Agreement shall
be construed as constituting the consent or request of either MSM or
MAM, 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 Sites or the
MSM Museum or the MAM Museum nor as giving the City 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 Sites or the MSM Museum or the MAM
Museum. If any mechanics' lien shall at any time be filed against the
Property or the MSM Museum or the MAM Museum due to the actions of
or by a person or entity claiming through the City, the City shall'cause it to
be discharged of record within thirty (30) days after the date the City has
knowledge of its filing. If the City shall fail to discharge a mechanics'
lien within that period, then in addition to any other right or remedy, either
MSM or MAM may, but shall not be obligated to, discharge the lien either
by paying the amount clammed to be due or by procuring the discharge of
the lien by deposit in court or bonding. The entity that paid shall be
entitled, if it so elects, and without waiving any rights or remedies for
default hereunder, 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 paying
entity shall be repaid by the City to MSM or MAM, as applicable,
immediately upon rendition of any invoice or bill to the City. The City
shall not be requited to pay or discharge any mechanics' lien so long as
the City shall (i) in good faith proceed to contest the lien by appropriate
proceedings, (ii) have given, notice in writing to MSM or MAM, as
applicable, of its intention to contest the validity of the lien and (iii)
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
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costs and expenses, including reasonable attorneys' fees to be incurred in
connection with it. Neither MSM nor MAM shall be entitled to pay the
lien or compel the prosecution of any action with respect thereto during
any time that the City is contesting such lien.
Section 4.11. Development Schedules. The Construction Plans for each of the
Museums and the City shall include a projected progress schedule setting forth the projected
construction start date and time parameters required for completion of each of the Museums and
at least the Minimum Park Improvements as described in Section 5.3. The Parties shall cause the
progress schedule to be updated periodically and shall deliver copies of same to the other Parties
in the reports to be delivered at the monthly Museum Park Steering Group meetings described in
Section 3.9 of this Agreement. MSM and MAM shall complete the MSM Museum and the
MAM Museum as applicable on or before the MSM Completion Date and MAM Completion
Date, as applicable, subject to Unavoidable Delay. The City shall complete the Minimum Park
Improvements and the balance of the Park Component as provided in Section 5.3.
Section 4.12. Procurement. The Parties acknowledge that construction of the Museums,
which is not funded by the City, is not subject to the City procurement code.
Section 4.13. Cost Overrun Guaranty. MSM shall pay (and hereby guarantees payment
of) all cost overran in connection with the construction of the MSM Museum. MAM shall pay
(and hereby guarantees payment of) all cost overruns in connection with the MAM Museum,
The City shall pay all cost overruns in connection with the Park Component.
Section 4.14. Requests for Information. The Parties shall make available for inspection
by the other Parties on a secure website to be established for this purpose copies of each RFI
(request for information) submitted in connection with its component, together with the response
to same within a reasonable time after such response is received.
Section 4.15. FDOT Area. The MAM Building is currently designed to be constructed
along the boundary of the MAM Site and the FDOT Area (as defined in the MAM Lease), such
that MAM will require access to the FDOT Area in order to construct the MAM Building as
currently contemplated and/or to perforin any environmental remediation that may be required
by MAM to construct its building. The City agrees to use commercially reasonable efforts to
assist and facilitate MAM, at no expense to the City, in obtaining such permits, licenses, site
access agreements and other entry rights (by persons and vehicles) from FDOT which permit
MAM to enter the FDOT Area, both on the ground and by cranes through air space, as necessary
or desirable for the construction of the MAM Museum and/or envirom-nental remediation, if
needed. The City will apply for, accept and enter into such permits, licenses and agreements in
its own name and/or on behalf of MAM if required to do so by FDOT, all of which shall be on
terms and conditions mutually acceptable to MAM and the City, provided that the City shall not
be required to assume any liability as a result of such permits, licenses and/or agreements.
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ARTICLE V
FUNDING
Section 5.1. Funding by MSM. The MSM Funding Plan shall include projected costs
and draw down schedules for County, private sector pledges, permitted financings and other
funding for the design, development, and construction of the MSM Museum. MSM agrees that it
shall use diligent, commercially reasonable efforts to secure funds sufficient to pay such design,
development, and construction costs, as and when due pursuant to the terms of this Agreement
and the MSM Construction Contract. Prior to the issuance of the notices to proceed described in
Sections 4.6(b), MSM shall deliver to the City Manager evidence reasonably satisfactory to the
City Manager that it has written commitments for such fiends as required in Sections 4.6(b).
Section 5.2. Funding by MAM. The MAM Funding Plan shall include projected costs
and draw down schedules for County, private sector pledges, permitted financings and other
funding for the design, development, and construction of the MAM Museum. MAM agrees that
it shall use diligent, commercially reasonable efforts to secure funds sufficient to pay such
design, development, and construction costs, as and when due pursuant to the terms of this
Agreement and the MAM Construction Contract. Prior to the issuance of the notices to proceed
described in Section 4.6 (b), MAM shall deliver to the City Manager evidence reasonably
satisfactory to the City Manager that it has written commitments for such fiends as required in
Sections 4.6 (b).
Section 5.3. Funding by the CitX.
(a) If the boundaries of the Omni Community Redevelopment Agency
("Omni CRA") are expanded to include Museum Park, the City shall use
good faith efforts to cause the Ornni CRA to contribute sufficient funds for
development of the Park Component in accordance with the Museum Park
Master Plan. The Parties acknowledge that the decision to use Omni CRA
funds for the Park Component is subject to approval by the Omni CRA
Board of Commissioners.
(b) As of the Effective Date, the Omni CRA boundaries have not been
extended, and the City has not yet identified sufficient fiends to complete
the Park Component as shown in the Museum Park Master Plan. The City
agrees that (i) it shall construct certain Minimum Park Improvements, the
scope of which shall be agreed upon by the City and the Museums, taking
into consideration the City's financial condition, by no later than. twelve
(12) months prior to the Museums' notice of proposed opening of the
museum, as described below, to open the Park Component for the
opening and operation of the Museums, and (ii) it shall use diligent efforts
to obtain funding and complete the balance of the Park Component in
accordance with the Museum Park Master Plan and Applicable Laws as
soon as possible thereafter. The provision set forth in (ii) above shall
survive the expiration or earlier termination of this Agreement. The
Minimum Park Improvements shall be completed by the opening date of
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the first of the Museums to be completed, provided that the City shall have
received not less than twelve (12) months advance written notice of the
proposed opening of such Museum and sufficient access, in the reasonable
discretion of the City Manager, to allow it to perforin the Minimum Park
Improvements within said twelve (12) month period. The Parties agree to
cooperate and work in good faith with each other in coordinating
development of each of their components of the Museum Park Project and
the City's construction of the Minimum Park Improvements (including,
where necessary, provision by the City of alternative construction access
and provision by the Museums of sufficient access, in the reasonable
discretion of the City Manager, to the property to perform the Minimum
Park Improvements) in order not to unreasonably interfere with each
others' construction activities and schedules. To the extent that the
construction of the Museums interferes with the City's ability to construct
the Minimum Park Improvements, then the deadline for completion of the
Minimum Park Improvements shall be extended for a commensurate
period of time.
Section 5.4. Notifications Regarding Financial Contributions. MSM, MAM and the
City each agree to notify the other Parties promptly hi writing in the event that it becomes aware
of any material variation in the amounts of, schedules for or uses of amounts to be contributed by
such Party pursuant to this Agreement.
ARTICLE VI
APPROVAL PROCEDURE
Section 6.1. Procedure. Any approvals of written submissions (for lack of doubt, these
do not include building and other permits issued by the City in its municipal regulatory capacity)
requested pursuant to this Agreement shall be reviewed in accordance with the procedure (the
"Approval Procedure") described in this Article. Each person, including without limitation the
City, MAM, MSM, the Museum Park Steering Group, and any Leasehold Mortgagee, who is
requested to review and approve a written submission, shall have a period of fifteen (15)
business days after the receipt of the written submission (which submission must be complete
and detailed enough to allow reasonable review) to advise the requesting party, in writing, of its
approval or disapproval of same. If no written disapproval is received by the requesting party
within said 15 business -day period, then the written submission shall automatically be deemed
approved by such person. In the event such person disapproves of part or all of such written
submission, that disapproving person shall include in its written notification the specific reasons
for disapproval (which must be commercially reasonable and within any parameters for review
specified in this Agreement, if any) and the recommended steps necessary to correct same. In
the event of a disapproval that complies with the requirements of this Section (including without
limitation time periods), the requesting party may at its option resubmit the revised written
submission to the disapproving person revised to cure the ground of the disapproval. Any
resubmission shall be subject to review by the disapproving person pursuant to the foregoing
plan approval process except that the time period for review shall be seven (7) business days
until the same shall be finally approved by such person provided, however, that if a submission is
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resubmitted regarding substantially the same issue and is disapproved two (2) times in total, the
matter shall be resolved as provided in Article XI of this Agreement. All Pal -ties shall attempt to
resolve any disputes concerning any such written submissions in good faith and such Parties
shall not unreasonably withhold or condition or delay their consent to any such requested
approval.
Section 6.2. Approvals and Consents. Wherever in this Agreement the approval or
consent of any party (including without limitation the City Manager) is required, it is understood
and agreed that unless specifically stated to the contrary, such approval or consent shall not be
unreasonably withheld, conditioned, or delayed. Wherever in this Agreement the approval or
consent of the City is required, except as otherwise specifically provided herein, or as may
otherwise be required by Applicable Laws in the opinion of the City Attorney, the written
approval or consent regarding the matter in question by the City Manager or his/her designee on
behalf of the City shall satisfy the requirement for approval or consent of the City for all
purposes. Each of MSM and MAM acknowledges that when the City acts or exercises any rights
or obligations under this Agreement, 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 Agreement. Wherever in
this Agreement the approval or consent of MSM is required, except as otherwise specifically
provided herein, the written approval or consent regarding the matter in question by Gillian
Thomas shall satisfy the requirement for approval or consent of the MSM for all purposes.
Wherever in this Agreement the approval or consent of MAM is required, except as otherwise
specifically provided herein, the written approval or consent regarding the matter in question by
Terry Riley or Jose Garcia shall satisfy the requirement for approval or consent of the MAM for
all purposes.
ARTICLE VII
RELATED DOCUMENTS
Section 7.1. Master Management Ajzreement. The City, MSM and MAM shall
negotiate and execute an overall Management and Operation Agreement (the "Management
Agreement") with respect to the operation, maintenance, repair and replacement of each
component of the Museum Park Project, including the MAM Museum, MSM Museum, Park
Component and any shared facilities. The Management Agreement will incorporate, at a
minimurn, the provisions specifically contemplated by the MOU to be addressed in the
Management Agreement, to the extent not addressed or agreed to in the Leases and/or in this
Agreement. The Management Agreement will also contain an agreement by the City for the
initial thirty (30) year term of the Leases that it shall operate the Park Component in accordance
with the Museum Park Master Plan and the Management Agreement, and it shall only sell,
convey or otherwise transfer the Park Component to an entity that (i) agrees to operate the Park
Component as a park in accordance with the Museum Park Master Plan and the Management
Agreement, (ii) provides satisfactory evidence to the Museums that it has the financial
wherewithal to meet the obligations of the City with regard to the Park Component under the
Leases, this Agreement and the Management Agreement during that thirty year term, and (iii)
agrees to bind itself and any subsequent transferees of the Park Component to all of the
foregoing restrictions and those set forth in Article XXV of the Leases. To the extent that the
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terms and conditions of the Leases and/or this Agreement are inconsistent or conflict with the
terns and conditions of the Management Agreement addressing the same subject matter, the
terms and conditions of the Management Agreement shall control.
Section 7.2. Building Better Cotntnunities General Obligation Bond Agreements and
GOB Administrative Rules. The Parties acknowledge that the County is providing funding for
each of the Museums pursuant to the terns of the Building Better Communities General
Obligation Bond Agreements and the County administrative rules applicable thereto, the
provisions of each of which are incorporated into this Agreement by reference. The Parties agree
to such provisions and shall abide by and cooperate in good faith to assist MSM and MAM in
complying with the terms and conditions of such agreements and rules. To the extent that the
terms and conditions of this Agreement are inconsistent or conflict with unexpired and
conditions terms of the Building Better Communities General Obligation Bond Agreements
and/or the County administrative rules applicable thereto addressing the same subject spatter, the
terms and conditions of the Building Better Communities General Obligation Bond Agreements
and the County administrative rules shall control.
ARTICLE VIII
MORTGAGEES
The City 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 under
Article XVII of the MSM Lease and the MAM Lease, as applicable, including without limitation
the right to take over any and all of the applicable Tenant's obligations and rights hereunder
and/or cure any default of the applicable Tenant hereunder.
ARTICLE IX
INSURANCE, CASUALTY AND INDEMNIFICATION
Section 9.1. Insurance and Casualty,
with any casualty as required under the Leases.
Section 9.2. Indemnification.
The Parties shall maintain insurance and deal
(a) To the maximum extent permitted by State law, MSM shall indemnify,
defend and hold harmless the City, and its officers, employees, attorneys,
agents and instrumentalities from and against any claim, loss, damage,
liability, cost or expense, including reasonable attorneys' fees, directly
arising out of (a) any breach, default or misrepresentation by MSM under
this Agreement, or (b) any personal or bodily injury, including death, to
any person and destruction of property resulting from the negligent
performance (or failure to perform) by MSM in the construction of the
MSM Museum; provided, however, that the foregoing indemnification
shall not extend to those claims, losses, damages, liabilities, costs or
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expenses asserted against or suffered by the City (or its officers or
employees) which are due to the negligent acts or: omissions of the City
(or its officers, employees, contractors, subcontractors, licensees, or
invitees), or to any action taken by the City in violation of this Agreement
or any action not taken that is required under this Agreement.
Notwithstanding the foregoing, MSM shall not be liable for any liabilities,
damages, suits, claims and judgments of any nature (including reasonable
attorneys' fees and expenses) arising from or in connection with any loss
or liability due to an Unavoidable Delay.
(b) To the maximurn extent permitted by State law, MAM shall indemnify,
defend and hold harmless the City, and its officers, employees, attorneys,
agents and instrumentalities from and against any claim, loss, damage,
liability, cost or expense, including reasonable attorneys' fees, directly
arising out of (a) any breach, default or misrepresentation by MAM under
this Agreement, or (b) any personal or bodily injury, including death, to
any person and destruction of property resulting from the negligent
performance (or failure to perform) by MAM in the construction of the
MAM Museum; provided, however, that the foregoing indemnification
shall not extend to those claims, losses, damages, liabilities, costs or
expenses asserted against or suffered by the City (or its officers or
employees) which are due to the negligent acts or omissions of the City
(or its officers, employees, contractors, subcontractors, licensees, or
invitees), or to any action taken by the City in violation of this Agreement
.or any action not taken that is required under this 'Agreement
Notwithstanding the foregoing, MAM shall not be liable for any liabilities,
damages, suits, claims and judgments of any nature (including reasonable
attorneys' fees and expenses) arising from or in conii.ection with any loss
or liability due to an Unavoidable Delay.
(c) To the extent and within the limitations of Section 768.28 Fla. Stat., and
subject to the provisions of that statute whereby the City shall not be held
liable to pay a personal injury or property damage claire or judgment by
any one person which exceeds the sum set forth in said statute, or any
claim or judgments of portions thereof, which, when totaled with all other
occurrences, exceeds the sum set forth in said statute, the City shall
indemnify and hold harmless the Museums, and their respective officers,
directors, trustees, employees, attorneys and agents from any and all
personal injury and property damage claims, losses, liabilities and causes
of action arising from the same claire which may arise solely as a result of
the negligence of the city in connection with its rights and obligations
under this Agreement. However,' nothing herein shall be deemed to
indemnify a Museum from any liability or claire arising out of the
negligent performance or failure of performance of the Museum or of its
respective officers, directors, trustees, employees, contractors or
subcontractors. Notwithstanding the foregoing, the City shall not be liable
for any liabilities, damages, suits, clauns and judgements of any nature
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(including reasonable attorneys' fees and expenses) , arising from or in
connection with any loss or liability due to an Unavoidable Delay.
(d) The provisions of this Section 9.2 shall survive the expiration or earlier
termination of this Agreement.
ARTICLE X
DEFAULT
Section 10.1. MSM Default. In the event of the failure of MSM to perform any of the
covenants, conditions or agreements which are to be performed by MSM under this Agreement,
and the continuance of such failure for a period of ninety (90) consecutive days after written
notice in adequate detail from the Party asserting the default to MSM (provided, however, if such
failure cannot reasonably be cured within ninety (90) days, and MSM, within said ninety (90)
day period, shall have commenced and thereafter continued diligently to prosecute the cure of
such failure, said failure shall not constitute a default hereunder, and provided further that any
Leasehold Mortgagee shall have such rights of notice and cure with respect to the obligations of
MSM as granted herein as are made available to such Leasehold Mortgagee under the MSM
Lease for any default by MSM as the tenant thereunder), then the Party asserting the default, to
the fullest extent permitted by law, shall have the right to pursue any and all remedies available
at law or in equity, including the right to terininate this Agreement as to MSM after providing
thirty (30) days notice to the Parties, sue for and collect damages and to specifically enforce the
rights of the Party asserting the default, and to enjoin MSM.
Section 10.2. MAM Default. In the event of the failure of MAM to perform any of the
covenants, conditions or agreements which are to be performed by MAM under this Agreement,
and the continuance of such failure for a period of ninety (90) consecutive days after written
notice in adequate detail from the Party asserting the default to MAM (provided, however, if
such failure cannot reasonably be cured within ninety (90) days, and MAM, within said ninety
(90) day period, shall have commenced and thereafter continued diligently to prosecute the cure
of such failure, said failure shall not constitute a default hereunder, and provided further that any
Leasehold Mortgagee shall have such rights of notice and cure with respect to the obligations of
MAM as granted herein as are made available to such Leasehold Mortgagee under the MAM
Lease for any default by MAM as the tenant thereunder), then the Party asserting the default , to
the fullest extent permitted by law, shall have the right to pursue any and all remedies available
at law or in equity, including the right to terminate this Agreement as to MAM after providing
thirty (30) days notice to the Parties, sue for and collect damages and to specifically enforce the
rights of the Party asserting the default, and to enjoin MAM.
Section 10.3. City Default. In the event of the failure of the City to perform any of the
covenants, conditions or agreements which are to be performed by it under this Agreement, and
the continuance of such failure for a period of ninety (90) consecutive days after written notice
(provided, however, if such failure cannot reasonably be cured within said ninety (90) day
period, and the defaulting party, within such ninety (90) day period, shall have cornrmenced and
thereafter continued diligently to prosecute the cure of such failure, said failure shall not
constitute a default hereunder), then the Party asserting the default, to the fullest extent permitted
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by law, shall have the right to pursue any and all remedies available at law or in equity, including
the right to terminate this Agreement after providing thirty (30) days notice to the Parties, sue for
and collect damages and to specifically enforce the rights of the Party asserting the default, and
to enjoin the City.
Section 10.4. Unavoidable Delay. For the purpose of any of the provisions of this
Agreement, neither the City (including the City Manager) nor MAM, nor MSM, as the case may
be, shall be considered in breach of or in default in any of its obligations under this Agreement in
the event of "Unavoidable Delays" (defined below). As used herein, the term "Unavoidable
Delays" shall mean delays due to strikes, slowdowns, lockouts, acts of God, inability to perform
due to court order, inability to obtain labor or materials, or to settle insurance claims due to
governmental restrictions, delays relating to Applicable Laws or Approvals beyond the control of
the Party seeking same, war, enemy action, acts of terrorism, civil commotion, fire, casualty,
flood, unusually severe weather conditions (such as tropical storms or hurricanes), delays by the
City, the County or any other government agency, in any negotiation, review, approval or
inspection required herein (which impact the obligations hereunder of the entity claiming
Unavoidable Delay), the application of any Applicable Laws, or any other cause beyond such
Party's reasonable control, but not including such Party's financial condition or inability to
obtain funding or financing (unless such condition arises from an Unavoidable Delay). All
Unavoidable Delays must be beyond the reasonable control of the party asserting the delay. 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 Agreement shall be extended for the period
of Unavoidable Delay; provided, however, that (i) 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; and (ii) no Unavoidable Delay shall serve to extend the
time for performance of the covenants or provisions of this Agreement by more than three (3)
years (unless extended by the Parties in writing).
Section 10.5. Obligations, Rights and Remedies Cumulative; Cure Periods. 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. All notice and cure periods
applicable to alleged defaults shall be tolled in the event that a Party challenges the existence of
the alleged default in an Arbitration or other legal proceeding until the date that the arbitrator or
presiding authority renders a decision in the proceeding, at with time, if such Party is found to be
in default, the cure period shall commence. All notice and cure periods shall not apply to the
outside dates for the commencement and completion of construction hereunder; however, the
foregoing shall not limit the applicability of Unavoidable Delay or any Leasehold Mortgagee
protections granted in this Agreement or the Leases.
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Section 10.6. No Indirect Damages. In no event shall any Party be liable under any
provision of this Agreement for any special, indirect, incidental, consequential, exemplary, treble
or punitive damages, in contract, tort or otherwise, whether or not provided by statute and
whether or not caused by or resulting from the sole or concurrent negligence or intentional acts
of such party. Furthermore, the limitation of liability herein shall not apply to any
indemnification for third party claims available at law or pursuant to, but subject to the
limitations in, Article IX. This provision shall survive the expiration or earlier termination of
this Agreement.
ARTICLE XI
DISPUTE RESOLUTION PROCEDURES
Section 11.1, General Dispute Resolution. The Parties acknowledge that litigation is
expensive and time consuming, and that the parties to a dispute are frequently in a much better
position to reach a satisfactory resolution when working in a good faith, commercially
reasonable, collaborative manner. Accordingly, the Parties agree that they will each work to
resolve any disputes in a good faith, commercially reasonable, collaborative manner as follows:
(a) The Parties shall first work to resolve any problems at the weekly Project
Coordination Team meetings. MSM, MAM and the City each agree to
notify the other Parties and the members of the Museum Park Steering
Group promptly in writing in the event that it becomes aware of any
continuing or repeated material unreasonable interference with the
complaining party's work or operations where the offending party has
been informed of the problem but has not sufficiently addressed it. Such
written notification shall recite the foregoing facts with specifics and shall
be a condition precedent to the making of any claim for such damages in
any Arbitration or litigation proceeding hereunder.
(b) If the problem is not resolved at the Project Coordination Team meetings,
any Party may present the problem at a Museum Park Steering Group
meeting. The Museum Park Steering Group will work with the members
of the Project Coordination Team to resolve the issue. If the problem is not
resolved with the assistance of the Museum Park Steering Group within
thirty (30) days after presentation, the issue may be submitted for
Arbitration at the request of any Party as provided below.
Section 11.2. 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 Construction Arbitration Rules (or
similar successor rules thereto) and this Article XI. The place of arbitration shall be Miami,
Florida. In the event that any Party calls for a determination in arbitration pursuant to the terns
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 real estate construction law (with significant experience in
construction contracts and development projects and related litigation) in Miami -Dade County,
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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 three
arbitrators selected shall select an arbitrator to be the arbitrator for the dispute in question. If any
Party fails to make its respective selection of an arbitrator within the additional 10 -day period
provided for above, then the remaining Parties' selections shall select the arbitrator.
Section 11.3. Arbitration Process. The arbitrator 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 and all matters involving the discretion of the City Commission shall not be
subject to arbitration, but instead shall be subject where appropriate to judicial review. 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 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, fugal 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, but the costs of the presiding
arbitrator and 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 with the assistance of the Museum Park Steering Group
and/or by submission to Arbitration, all disputes between the Parties shall
be resolved by litigation.
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ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.1. Sovereign Rights, The City shall retain all of its sovereign prerogatives
and rights as a municipality under State law with respect to the Museum Park Project. It is
expressly understood that:
(a) The City retains all of its sovereign prerogatives and rights and regulatory
authority (quasi-judicial or otherwise) as a municipal corporation under
State law and shall in no way be estopped by virtue of its execution of this
Agreement from withholding or refusing to issue any approvals in its
municipal regulatory capacity of applications for building, zoning,
planning or development under present or future laws and regulations
whatever nature applicable to the planning, design, construction and
development of the Museum Park Project, or the operation thereof, or be
liable for the same; and
(b) The City shall not by virtue of this Agreement or any other agreement
entered into by the City relating to the Museum Park Project, be obligated
in its municipal regulatory capacity to grant MSM or MAM any approvals
of applications for building, zoning, planning or development under
present or future laws and ordinances of whatever nature applicable to the
planning, design, construction, development and/or operation of the
Museum Park Project.
Notwithstanding and prevailing over any contrary provision in this Agreement, any
covenant or obligation of the City in its municipal regulatory capacity that may be contained
in this Agreement shall not bind the City Commission or any City department or authority,
committee or agency to grant or leave in effect any zoning changes, variances, permits,
waivers, or any other approvals that may be granted, withheld or revoked in the discretion
of the City in its municipal regulatory capacity or other applicable governmental agencies in
the exercise of its police power.
Section 12.2. 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 any of the Parties or as
constituting any Party as the agent or representative of any other Party.
Section 12.3. 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 terra, 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
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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 12.4. Waiver of Jury Trial. The Parties hereby each knowingly, irrevocably,
voluntarily and intentionally waive any right such Party may have to a trial by jury in respect of
any action, proceeding or counterclaim based on this Agreement, or arising out of, under or in
connection with this Agreement or any amendment or modification of this Agreement, or any
other agreement executed by and between the Parties in connection with this 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 to the Parties to enter
into this Agreement.
Section 12.5. 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, and their respective counsel and authorized
representatives as set forth below, at the address specified below or at such other address of
which the other parties shall be duly notified in writing:
(a) In the case of a notice or communication to the City, to:
City of Miarni
Attention: City Manager
Miami Riverside Building, 10th Floor
444 S.W. 2nd Avenue
Miami, Florida 33130
City Attorney
City of Miami
Miami. Riverside Building, 9t1' Floor
444 S.W. 2"d Avenue
Miami, Florida 33130
Department of Public Facilities
City, of Miami
Miami Riverside Building, 3rd Floor
444 S.W. 2nd Avenue
Miami, Florida 33130
(b) In the case of a notice or communication to the City Project Liaison, to:
City of Miami
City Manager's Office
444 S.W. 2nd Avenue
Miami, Florida 33130
Attn: Roger Hernstadt
(c) In the case of a notice or communication to MSM, to:
34
Museum of Science, Inc.
3280 South Miami Avenue
Miami, Florida 33129
Attn: President
With a copy to:
The Lumpkin Law Firm, P.A.
Gables International Plaza, 5th Floor
2655 Le Jeune Road
Coral Gables, Florida 33134
Attn: Peyton White Lumpkin, Esq.
White & Case LLP
200 South Biscayne Boulevard
Wachovia Financial Center, Suite 4900
Miami, Florida 33131
Attn: Victor M. Alvarez, Esq.
(d) In the case of a notice or communication to NEW, to:
Miami Art Museum of Dade County Association, Inc.
101 Flagler Street
Miami, Florida 33130
Attn: Director
With a copy to:
Greenberg Traurig, P.A.
1221 Brickell Avenue
Miami, Florida 33131
Attn: Matthew B. Gorson, Esq.
Nancy B. Lash, Esq.
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 under this Agreement must be in writing and must be
given as provided in this Section.
Section 12.6. 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 12.7. Counterparts. 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.
35
Section 12.8. 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 12.9. Construction and Interpretation. Reference to any Article, section,
paragraph, exhibit, or subpart thereof, unless otherwise provided, shall refer to this Agreement.
Use of the term "including" shall mean "including, without limitation". Each of the Parties
hereto and their counsel have reviewed and revised, or requested revisions to, this Agreement,
and the usual rule of construction that any ambiguities are to be resolved against the drafting
party shall be inapplicable in the construction and interpretation of this Agreement and any
amendments or exhibits to this Agreement.
Section 12.10. Attorneys' Fees. 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 12.11. Entire AQxeernent. This Agreement, including the Exhibits hereto and all
documents described or referenced in this Agreement, together contain the entire agreement
among the Parties with respect to the subject matter hereof, and supersede any and all prior
written or oral agreements among the Parties with respect to such subject matter. 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 12.12. Incorporation of Provisions of the Leases by Reference. The provisions of
the Leases are incorporated into this Agreement by reference.
Section 12.13. 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.
Section 12.14. Severability. If any term or provision of this Agreement or the application
thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Agreement or the application of such term or provision to the persons or
circumstance other than those as to which it is held invalid or unenforceable, shall not be
affected thereby, and each terin and provision of this Agreement shall be valid and be enforced
to the fullest extent permitted by law.
Section 12.15. Conflict with the Leases. To the extent that the terms and conditions of
this Agreement are inconsistent or conflict with the terms of the Leases that address construction
related issues, the terms and conditions of this Agreement shall control.
[remainder of this page intentionally left blank]
IR
IN WITNESS WHEREOF, the Parties hereto have and replaced with executed this
Development Agreement on the day, month and year first above written.
Attest:
By:
Pris lla A. Thome on, City Cleric "d`�g
Approved as to form and
By:_ 1;Z—
Julie O. Bru, City
Witnesses:
Print Name:
vA
Witnesses:
AS TO THE CITY:
THE CYMIAMI, a municipal
coxt�ox o o the State of Florida
/� By:
ro G. Herr
p 4 City Manager
Approved
By:
,�y'�} LeeAnn Brehm,
'P�"' Administrator.
As to MSM:
/0?
Print Name: A ,awt -4e- d AA, r?
Management
MUSEUM OF SCIENCE, INC., a Florida not-
for-profit corporation
Name: Gilan n Thomas
Title: President
As to MAM:
MIAMI ART MUSEUM OF DADE COUNTY
ASSOCIATION, INC., a Florida not-for-profit
corporation
By: .
Name: 41140 A04s #ad&
Title: ��ir�I/PM,ftIY� .f d19r2b 0�
37
Draft of 5/21/09
DEVELOPMENT AGREEMENT FOR
MUSEUM ARK PROJECT
by an , among
THE CITY F MIAMI,
a municipal corporation f the State of Florida
and
MUSEUM OF SCIE E, INTC.,
a Florida not-for-profit c� rporation
and
MIAMI ART MUSEUM OF DAI)COUNTY
ASSOCIATION, INC., a Florida not -for -p ofit corporation
2009
M/A L4SHN 180,509,934x5 5-7-09 090409.010000
HAA LASHN 180, 509, 934v5 5-7-09 090409.010000
TABLE OF CONTENTS
Paae
ARTICLE r
GE:FERAL`,PROVrSIONS .........................
ARTICLE II
SITE CONDIt"IONS, INSPECTIONS; ACCEPTANCE...............................10
ARTICLE III
MUSEUM PARK PROJECT..........................................................................10
ARTICLE IV
MSM MUSEUM, MAM MUSEUM. AND PARK COMPONENT
PLANS AND CONSTRUCTION...................................................................15
ARTICLEV
FUNDING.......................................................................................................23
ARTICLE VI
APPROVAL PROCEDURE...........................................................................25
ARTICLE VII
RELATED DOCUMENTS.............................................................................26
ARTICLE VIII
MORTGAGEES.............................................................................................27
ARTICLE IX
INSURANCE, CASUALTY AND INDEMNIFICATION ............................27
ARTICLE X
DEFAULT.................................:....................................................................28
ARTICLE XI
DISPUTE RESOLUTION PROC DURES....................................................o
ARTICLE XII
MISCELLANEOUS PROVISIONS a.............................................................32
HAA LASHN 180, 509, 934v5 5-7-09 090409.010000
DEVELOPINIENT AGREElNZE.NT
FOR IN7t'SEUM PARK PROJECT
THIS DEVELOPM IT AGREEMENT FOR MUSEU'•M .PARK PROJECT (the
"Azreement") is made this day of '009; by and berween THE CITY
OF MIAMI; a municipal corp ation of the State of Florida (the "Cin."): MUSEUM OF
SCIENCE, INC., a Florida IT
-profit corporation ("MSM"): and MIAMI ART MUSEUM
OF DADE COUNiTY ASSOCIATI N, INC., a Florida not-for-profit corporation ("MAM"). All
capitalized terms used herein shall ave the meanings set forth in Section 1.2 below, unless
otherwise indicated.
EREAS:
WHEREAS, the City is owner in Pi e simple of all that certain land located in the Greater
Miami downtown area, in Miami -Dade Co ty, Florida, known as both "Bicentennial Park" and
"Museum Park", which is legally described or depicted in Exhibit A attached hereto ("Museum
Park"); and
WHEREAS, on July 25, 2002, the C_\ty Commission of the City of Miami (the "City
Commission") passed and adopted Resolution``No. 02-862 authorizing and directing the City
Manager and City Attorney, inter alia, to nego� ate (and finalize negotiations) with MAM and
MSM, for the development of new museum � cilities in Museum Park, including without
limitation the terms and conditions of each museuz�'s respective tenancies in Museum Park; and
WHEREAS, the Board of County Comm
passed and adopted Resolution Nos. R-912-04, R-!
917-04, R-918-04 and R-919-04, which authorized
obligation bonds for capital projects, including a nc
Museum Park, which bonds were approved by a maj
and
,ioners of Miami -Dade County, Florida,
3-04, R-914-04, R-915-04, R-916-04, R-
ae issuance of $2,926 billion in general
tof
museum and science museum within
those voting on November 4, 2004;
WHEREAS, on September 12, 2008, (i) the Cik, (ii) Miami Sports and Exhibition
Authority, an independent and autonomous agency an instrumentality of the City (the
"Authori "), (iii) Miami -Dade County, a political subdi�sion of the State of Florida (the
"Coun "), (iv) MAM, (v) MSM, and (vi) the Historical Asso` iation of Southern Florida, Inc., a
Florida not-for-profit corporation, entered into a Memorandurof Understanding (the "MOU"),
concerning the development, design, construction and operation f the various components of the
"Museum Park Project" (defined below) in Museum Park; and
WHEREAS, the MOU was approved by the Board of Dire tors of the Authority on May
14, 2008 and by the County Board of Commissioners and the Ci Commission by Resolution
Numbers R-435-08 and R-08-0290, respectively; and
WHEREAS, the MOU provides for the City to lease a portio of Museum Park more
particularly described or depicted in Exhibit B attached hereto and in orporated herein (the
"Pro e ") to the Authority, and for the Authority to thereafter sublease pD ions of the Property
to each museum, for the development and operation of a first class art miseum, a first class
MIA LASHN 180,509,934x5 5-7-09 090409.010000
science museum and other related facilities and improvements all in accordance with the
provisions of Section 29-B of the Cite Charter; and
WHEREAS, on Nov iber 13, 2008, the City Commission of the Cite passed and
adopted Resolution No. R-08-0 �3 authorizing and directing the City Matlaaer to negotiate and
finalize the definitive documents r the Museum Park Project directly «'ith MSM and 1�2.4M,
without the involvement of the Au ority, to implement the Museum Park Project in a more
efficient manner: and
WHEREAS, pursuant to that c
between the City, as landlord, and MSM,
resolution No. R-08-0707 adopted by the 1
ground leased to MSM a portion (the "M,1
four (4) acres as legally described on Exhi
now or hereafter constructed thereon, the "
n Lease Agreement dated April 6; 2009 by and
tenant (the "MSM Lease"), authorized pursuant to
>> Commission on December 11, 2008, the City has
Site") of the Property consisting of approximately
attached hereto (together with any improvements
)14 Premises"); and
WHEREAS, pursuant to that certain
between the City, as landlord, and MAM, as to
resolution No. R-08-0707 adopted by the City
ground leased to MAM a portion (the "MAM
four (4) acres as legally described on Exhibit DD
now or hereafter constructed thereon, the "MA2
;e Agreement dated April 6, 2009 by and
(the'IMAM Lease"), authorized pursuant to
nission on December 11, 2008, the City has
of the Property consisting of approximately
hed hereto (together with any improvements
, 'ses"); and
WHEREAS, MSM desires, pursuant to the OU and the MSM Lease and subject to
fulfillment of the conditions and in accordance with e other terms, provisions and conditions
hereinafter set forth, to develop, construct and operate a science museum on the MSM Premises;
and
WHEREAS, MAM desires, pursuant to the MO and the MAM Lease and subject to
fulfillment of the conditions and in accordance with the o er terms, provisions and conditions
hereinafter set forth, to develop, construct and operate an museum on the MAM Premises;
and
WHEREAS, the City desires, pursuant to the M0 and subject to fulfillment of the
conditions and in accordance with the other terms, pi visio s and conditions hereinafter set
forth, to develop, construct and operate a park on the Park Com onent.
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 City, MSM and MAM h eby covenant and agree as
follows:
ARTICLE i
GENERAL PROVISIONS
Section 1.1. Recitals and Exhibits. The recitals above and exhi� s attached hereto are
incorporated herein by this reference. \
2
MIA LASHN 160,509,934v5 5-7-09 090409.010000
Section 1.2. Definitions. Unless othenvise provided herein. all initial capitalized terms
used in this Agreement shall have the meanings indicated below:
(a) "Ag -reed Share" shall have the meaning ascribed to it in Section 3.2 of this
AEreement.
(b) "ARreement`-�all mean this Development Agreement.
(c) "Applicable Laws" hall mean any law (including without limitation, any
Environmental Lau), enactment, statute, code; ordinance, administrative
order, charter, tariff, resolution, order, rule, regulation, guideline,
judgment, decree; «rit, nj
authorization, or other 1
Authority, political subdi�
now existing or hereafter
issued.
(e)
(f)
(g)
(h)
"Approvals" shall mean all
under any Applicable Laws
Museums or the Park Con
Plans, as applicable.
nction, franchise, permit, certificate, license,
ction or requirement of any Governmental
ion, or any division or department thereof,
enacted, adopted, promulgated, entered, or
"Approval Procedure" shall have
of this Agreement.
nental approvals and permits required
commencement of construction of the
in accordance with the Construction
"Arbitration" shall mean the arbitrati
of this Agreement.
"Authori " shall mean Miami S]
independent and autonomous agency
meaning ascribed to it in Article VI
procedures set forth in Article XI
and Exhibition Authority, an
istrumentality of the City.
ts"
shall mean that certain agreement entitled Miami -Dade County Building
Better Communities Grant Agreement / Ne Miami Museum of Science
& Planetarium Facility/Historical Museum o South Florida / GOB Project
Number 297-70430" and dated June 16, 200 , together with that certain
agreement entitled "Miami -Dade County B 'lding Better Communities
Grant Agreement /New Miami Art Museu Facility /GOB Project
Number 296-70428" and dated May 29, 2008, d the subsequent similar
agreements to be executed by MSM and as a requirement of the
funding of the construction of the Museums by the County, all as
authorized under the Board of County Commi Toners of Miami -Dade
County, Florida, Resolution Nos. R-912-04, R-91 -04, R-914-04, R-915-
04, R-916-04, R-917-04, R-918-04 and R-919-04, which authorized the
issuance of $2.926 billion in general obligation bonds for capital projects
and as approved on November 2, 2004, by a maj ori of those voting.
3
MIA LASHN 180,509,934x5 5-7-09 090409.010000
(i) "Cin=' shall mean the Citi- of Miami. a municipal corporation of the State
of Florida.
�J
"City Commission' sh'�ll mean the Cin- Commission of the Clt\' of Miami.
(k) "City Proiect Liaison' sh 11 have the meaning ascribed to it in Section 4.3
of this Aareement.
(1) "Construction Plans" shall can the final construction drawings, «orking
plans and specifications in sufficient detail for the permitting and
construction of the MSM 1\ seum. the MAA4 Museum, and the Park
Component, as applicable, to t e extent required for permitting particular
improvements. The Construct n Plans for each component shall also
include a projected progress sche ule for completion of such component.
(m) "Cooper Robertson" shall mea Cooper Robertson & Partners, an
architecture and urban design firm.
(n)
(o)
(P)
(q)
(r)
(s)
''County" shall mean Miami -Dade
State of Florida.
"County Proiect Liaison" shall have
4.4 of this Agreement.
"CSBE" shall have the meaning
Agreement.
"CWP" shall have the meaning
Agreement.
, a political subdivision of the
meaning ascribed to it in Section
"DTA" shall have the meaning ascribed
Agreement.
"Effective Date" shall mean the date of
Agreement by the Parties.
to it in Section. 4.6 of this
to it in Section 4.6 of this
it in Section 4.6 of this
final signature of this
(t) "Environmental Laws" shall mean any federal, st te, regional, or local (a)
law, statute, ordinance, provision, regulation, rule�Iperee,
court order, judicial or
administrative order, decision, determination, consent order,
consent decree, consent agreement, or other legal re uirement, (b) permit,
license, authorization, or approval, or (c) administrative policy, guideline,
or standard required or legally imposed by a Gove ; ental Authority (as
hereinafter defined), whether now existing or hreinafter enacted,
promulgated, issued, or ordered (including as they may be amended from
time to time) relating to protection of the outd or environment
(concerning any and all environmental media), public health, or any
Hazardous Substance (as hereinafter defined). For p : oses of this
definition, the term "Environmental Law" shall include as applicable but
4
MIA L4SHN 180,509,934v5 5-7-09 090409.010000
not be limited to the follo« Ang: (A) the Federal «Water Pollution Control
Act; as amended (33 U.S.C. s 1251. et seq.)- (B) the Solid Waste Disposal
esource
Act, including the Rnser� anon and Recon erg _pct. as amended
(4_' U.S.C. § 6901; et seg.), (C) the Comprehensive Environmental
Response, Compensation, and Liabiliv, act. as amended (42 U.S.C. §
9601. et seg.); (D) the Superfun Amendments and Reauthorization Act of
1986, as amended (codified in ections of 10 U.S.C., 29 U.S.C.; and 42
U.S.C.); (E) the Federal Clean A r Act; as amended (42 U.S.C. § 7401, et
sem); (F) the Federal Insecticid , Fungicide, and Rodenticide Act. as
amended (7 U.S.C. § 136, et seq.) - (G) the Toxic Substances Control Act,
as amended (15 U.S.C. § 2601; et se .); (H) the Emergency Planning and
Community Right -to -Know Act, a amended (42 U.S.C. § 11001,
(1) the Occupational Safety and He lth Act; as amended (29 U.S.C. § 650,
et seq.); (J) the Safe Drinking Wat r Act, as amended (21 U.S.C. § 349
and 42 U.S.C. §§ 201 and 300f et e .); (K) the National Environmental
Policy Act, as amended (42 U.S.C., § 4321, et seg.); (L) the Hazardous
Materials Transportation Act, as ame�ded (49 U.S.C. § 1801, et_ seg.); (M)
the Atomic Energy Act, as amended) (42 U.S.C. § 2011, et seq.); (N) the
Federal Food, Drug and Cosmetic Apt. as amended (21 U.S.C. § 301, et
seg.); (0) the Endangered Species Ac (16 U.S.C. § 1531, et se ; (P) any
laws regulating the use of biologi4al agents or substances including
medical or infectious wastes; (Q) Cha ter 24 of the Code of Ordinances of
Miami Dade County, Florida and Chapters 373, 376, and 403 of the
Florida Statutes; and (R) as it relates t� subsections (A) through (Q) of this
definition, any and all related rules an' regulations, all as in effect on the
date hereof and as may hereafter be amended from time to time,
(u) "Environmental Remediation A., eeme t" shall have the meaning ascribed
to it in the Leases.
(v) "Governmental Authority" shall moan any federal, state, county,
municipal or other governMental entity or any instrumentality of any of
them, having jurisdiction over the Muse Park Project.
(w) "Improvements" shall mean all im)
installed at the Property, including
Parking Facility, and all walkways,
and other structures and facilities
Parking Facility.
(x)
(Y)
"Infrastructure and Coordination Plan" shall
it in Section 3.2 of this Agreement.
is to be constructed upon or
limitation the Museums, the
is, lighting facilities, utilities
int to the Museums and the
"Leasehold Mortgage" shall have the meaning
Lease as to the MSM Museum, and the mei
MAM Lease as to the MAM Museum.
5
MIA LASHN 980,509,934x5 5.7-09 090409.090000
the meaning ascribed to
ibed to it in the MSM
ascribed to it in the
(z) "Leasehold Mongagee" shall have the m aping ascribed to it in the MSM
Lease as to the MSM Museum. and thmeanina ascribed to it in the
MANN Lease as to the IN1A-1\1 Museum.
(aa) "Leases" shall mean, collectively, the ANI Lease and MSM Lease,
together with any amendments, mod- -cations. restatements and
supplements thereto as may be approved pur uant to the terms thereof.
(bb) ''MAM" shall :mean Miami Art Museum o Dade County Association;
Inc,; a Florida not-for-profit corporation,
(cc) " NIAM Building" shall mean the structure o be constructed upon the
MAM Site for the MAM Museum.
(dd) "MAM Commencement Date" shall mean the 1date the notice to proceed
for the construction of the foundation oft he MAM Museum is given
pursuant to Section 4,6 of this Agreement by MAIM to its general
contractor or construction manager, as applicab e, which date shall not be
earlier than the Possession Date or later than four (4) years after the
Effective Date, subject to Unavoidable Delay.
(ee) "MAM Completion Date" shall mean the date 'that the MAM Museum
(excluding exhibits) is substantially complete., as evidenced by the
issuance of a certificate of occupancy, for the M I Museum, which shall
be no later than seven (7) years after the E ective Date, subject to
Unavoidable Delay, .
(ff) "MAM Construction Contract" shall have the m aping ascribed to it in
Section 4.2 of this Agreement.
(gg) "MAM Funding Plan" shall have the meaning ascribed to it in Section 4.2
of this Agreement.
(hh) "MAM Lease" shall mean the lease by the City of the' MAM Site to MAM
dated April 6, 2009, together with any amendm` nts, modifications,
restatements and supplements thereto.
(ii) "MAM Museum" shall mean an art museum, together ith its portion of
the Parking Facility, loading docks, visitor drop -o s, access roads,
internal site roadways, outdoor features and relate amenities and
facilities, to be developed and operated on the MAM Site y MAM as part
of the Museum Park Project pursuant to the terms of this\\greement and
the MAM Lease.
0j) "MAM Premises" shall have the meaning ascribed to it in
(kk) "MAM Site" shall have the meaning ascribed to it in the
6
MIA LASHN 180, 509; 934v5 5-7-09 090409.010000
(11) "Management Agreement" shall hav the meaning ascribed to it in Section
7.1 of this Agreement.
(mm) "Minimum Park Improvements" shall have the meaning ascribed to it in
Section 5.3 of this Agreement.
(nn) '`MOU" shall have, the meaning ascribed to it in the Recitals.
(oo) "MSM" shall mean Museum of Science, Inc., a Florida not-for-profit
corporation.
(pp) "MSM Building` shall mean the strue e to be constructed upon the
MSM Site for the MSM Museum.
(qq) "MSI\4 Commencement Date" shall mean the date the notice to proceed
for the construction of the foundation o the MSM Museum is given
pursuant to Section 4.6 of this Agreem nt by MSM to its general
contractor or construction manager, as appli able, which date shall not be
earlier than the Possession Date or later an four (4) years after the
Effective Date, subject to Unavoidable Delay
(rr) "MSM Completion Date" shall mean the d to that the MSM Museum
(excluding exhibits) is substantially comp,ted as evidenced by the
issuance of a certificate of occupancy for the SM Museum, which shall
be no later than seven (7) years after the ffective Date, subject to
Unavoidable Delay.
(ss) "MSM Construction Contract" shall have the caning ascribed to it in
Section 4.2 of this Agreement.
(tt) "MSM Funding Plan" shall have the meaning asc 'bed to it in Section 4.2
of this Agreement.
(uu) "MSM Lease" shall mean the lease by the City of t e MSM Site to MSM,
dated April 6, 2009, together with any amen \ ents, modifications,
restatements and supplements thereto.
(vv) "MSM Museum" shall mean a science museum, toge�Y
of the Parking Facility, loading docks, visitor drop
internal site roadways, outdoor features and relat
facilities, to be developed and operated on the MSM Si
of the Museum Park Project pursuant to the terms of t]
the MSM Lease.
(ww) "MSM Premises" shall have the meaning ascribed to it in
(xx) "MSM Site" shall have the meaning ascribed to it in the
7^
MIA LASHN 180,509,934x5 5-7-09 090409.010000
with its portion
s, access roads,
amenities and
by MSM as part
Agreement and
Recitals.
(yy ) "Museum Park" shall have thAmeanina ascribed to it in the Recitals.
(zz) "INIuseum Park Master Plan" s all mean the master plan for the Museum
Park Project developed by CooAer Robertson dated December. 2006 and
approved bbl the City on March 13. 2008. MSM on July 29, 3008. and
MAM on March 18. 2008, as amen ded from time to time.
(aaa) `''Museum Park Project" shall ii
management and operation of the A
any other related facilities and imp
incidental and ancillary to the op,
Component, to be designed and
Museum Park Master Plan and this
�an the development, construction,
useums and the Park Component, and
vements in Museum Park, which are
Dtion of the Museums and the Park
eveloped in accordance with the
(bbb) "Museum Park Steering Group" shall have the meaning ascribed to it in
Section 3.9 of this Agreement.
(ccc) "Museums" shall mean the MAM (Museum and MSM Museum,
collectively.
(ddd) "NDZ" shall have the meaning ascribed to it in Section 4.6 of this
Agreement.
(eee) "Omni CRA" shall have the meaning as e, to it in Section 5.3 of this
Agreement.
(fff) "Park Component" shall mean the portion 'Qf the Museum Park Project
consisting of approximately 21 acres of land in Museum Park located
adjacent to the Property, which, subject to sections 3.5 and 5.3 of this
Agreement, is to be designed, developed and`: operated by the City or its
designees in accordance with the Museum Park Master Plan, including
without limitation all improvements necessary to support the park
landscaping, structures, infrastructure, access roads and parking, as same
may be amended from time to time in accordance with Section 3.5 of this
Agreement. 'i,
(ggg) "Parking Facility" shall have the meaning ascribed to it in Section 3.3 of
this Agreement. x
(hhh) "Fate" or "Parties" (whether or not by use of the lrapitalized term) shall
mean jointly or individually (as the context requires)�each of the parties to
this Agreement and their respective successors and asigns.
(iii) "Plaza Improvements" shall mean the plaza and the potion of the Parking
Facility to be located under the plaza between the Museums, as same may
be modified or redesigned pursuant to Section 3.3 of this'\,Agreement.
8
MIA LASHN 980,509,934v5 5-7-09 090409.090000
"Plaza Improvements Allocation" sha l have the meaning ascribed to it in
Section 4.2(a) of this Agreement.
(kU- —) "Possession Date" shall mean, for each ite, the date that the City delivers
possession of such Site to the applicable Tenant under the Leases;
provided that in no event shall the Posse'ssion Date occur prior to the date
that the conditions set forth in Section 2u of the respective Leases have
been satisfied.
(111) "Project Coordination Team'' shall have the meaning ascribed to it in
Section 3.10 of this Aareement. `.
ti ,
(mmm)"Property" shall have the meaning ascribed tow in the Recitals.
(nnn) "SBE'' shall have the meaning ascribed to `., it in Section 4.6 of this
Agreement.
V �i
(000) "Site" shall mean individually each of the MAM Site and MSM Site, and
"Sites'' shall mean collectively both the MAM Site and the MSM Site.
(ppp) "Tenant" shall mean each of MAM, as lessee under the MAM Lease and
MSM, the lessee under the MSM Lease (collectively, the Tenants), and
their respective successors and permitted assigns. °�
(qqq) "Unavoidable Delay" shall have the meaning ascrib''d to it in Section 10.4
of this Agreement.
(rrr) "Wind and Solar Restriction" shall have the meattling ascribed to it in
Section 3.8 of this Agreement. 1,
Section 1.3. Authority to Enter into Agreements. The City represents, covenants and
warrants to each of MSM and MAM that it has a valid right to enter into this Agreement and to
permit MSM to develop the MSM Museum on the MSM Site and to permit. to develop the
MAM Museum en the MAM Site. MSM represents, covenants and warr 'ts to the City and
MAM that it has a valid right to enter into this Agreement. MAM represe ts, covenants and
warrants to the City and MSM that it has a valid right to enter into this Agreement.
Section 1.4. Term of Agreement. The term of this Agreement shall c�mmence on the
Effective Date hereof and shall end, except as otherwise provided in this Agree ent, on the last
to occur of (i) the MSM Completion Date, (ii) the MAM Completion Date, (iiia, the applicable
completion date, if only one Museum proceeds under this Agreement, and (i�) the date of
completion of the Minimum Park Improvements, but in no event later than seven \7) years from
the Effective Date (unless extended by the Parties in writing).
9
MIA LASHN 180,509,934v5 5-7-09 090409.010000
ARTICLE II
SITE COl\DITIONS, INSPECTIONS, ACCEPTANCE
INISM and MAM have each conducted all tests, inspection and investigations of their
respective portions of the Sites as they have deemed necessary andl each accepts its respective
Site in "as -is" condition; and accepts complete responsibility for coten,
itions encountered at their
respective portions of the Site; including, but not limited to, unfores subsurface or otherwise
concealed physical conditions; but specifically excluding enviro'un `tal conditions, which shall
be dealt with pursuant to the terms of the Environmental Rem A�iation iation Agreement. For
avoidance of doubt, this does not include any environmental condrtior(on or relating to the Sites
which is not in compliance with any Environmental Laws and/or as `nay need remediation or
work to provide clean Sites read), for the construction of the Museums,+,«-hich issue is dealt with
in the Environmental Remediation Agreement.
ARTICLE III I
MUSEUM PARK PROJECT
Section 3.1. Development of Museum Park Project. MSM, KW, and the City, or the
City's designee, shall each serve as the developer of the MSM Museum, MAM Museum, and the
Park Component, respectively. Each shall (a) manage and control the design, development and
construction of its component, (b) be responsible for all pre -development i§sues required for its
component, including but not limited to, regulatory reviews and approvals; traffic, parking and
engineering analysis, all in accordance with Applicable Laws and in general conformance with
the Museum Park Master Plan, (c) retain appropriate professionals to assist in the performance of
these obligations, (d) except as otherwise expressly provided herein, in `the Leases or the
Environmental Remediation Agreement, pay the costs for same from its own funds, and (e)
coordinate its activities with the other Parties.
Section 3.2. Infrastructure.
(a) Site Improvements. MSM and MAM shall each be responsible for the
performance of all work and the payment of all costs req! ired to design,
develop, construct, and maintain all site improvement required for
construction of their respective museums, which shall inclWe but not be
limited to demolition, utility relocations, water, sewer and sanitation work
(including any work required to bring utilities or sanit`a`tion for the
Museums to the Sites), street improvements, landscaping and'�hardscaping,
and other customary infrastructure work within the boundaries of the
MSM Site and MAM Site, as applicable. The City shall be responsible for
the performance of all work and the payment of all costs required to
design, develop, construct, and maintain all site improvements r�quired for
construction of the Park Component, which shall include b t not be
limited to demolition, utility relocations, water, sewer and sanitati , n work,
street improvements, landscaping and hardscaping, and other cu`,tomary
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MIA LASHN 180,509,934x5 5-7-09 090409. Of 0000
(b)
infrastructure work within the boundaries I
excluding the Sites.
of the Park Component but
Infrastructure and Coordination PIan. The tin- and 1, useums shall work
cooperatively, diligently, and in good faithith each other to develop an
infrastructure andy coordination plan (`'Inf structure and Coordination
Plan") for the Museum Park Project that i sets forth and coordinates
infrastructure needs for each of the Museums and, to the extent mutually
beneficial and economically feasible, for thel Park Component, provided
that the City agrees in advance and in writing to pay its Agreed Share in
connection with such shared infrastructure. Tie Agreed Share as to each
of the Parties in any item of shared infrastructure shall be the share of all
of the actual costs and expenses (hard and soft) on account of any such
infrastructure, as agreed in advance in writing siIped by each participating
Parry. The Parties shall use commercially reasonable, good faith efforts to
agree on the Agreed Share for each Party, tak�g into consideration the
rights of use and other benefits to inure to each of.the participating Parties.
If a provider of utilities requires that capacity be', provided for the entire
Museum Park Project in order for the Museums to obtain service, then the
City shall participate in all negotiations with `'.the utilities provider
regarding each Party's Agreed Share of such shared infrastructure. The
City agrees that it will pay its Agreed Share of such: shared infrastructure
at the time payment is due to the utility provider if the City currently has
available funds for such use, and otherwise on a reimbursement basis to
MSM and MAM when the City has such funds available. Any disputes
regarding the Agreed Share for any Party in connection with such
provider -required shared infrastructure shall be resolved pursuant to
Article XI below. As of the Effective Date, the City h4 not yet identified
sufficient funds to complete the Park Component as shoVvn in the Museum
Park Master Plan, and it is likely that the Park Component and related
infrastructure will not be developed on the same schedule'.as the rest of the
Museum Park Project. The Museums have submitted a preliminary draft
of the Infrastructure and Coordination Plan showing proposed connections
to the existing water, sanitary sewer and stormwater drain mains, MSM's
connection to the bay for its seawater lines (and related utilities), electrical
utilities and conduits within and outside Museum Park, and other
necessary infrastructure, to the City and to Cooper Robertson, a copy of
which is attached hereto as Exhibit E. The City shall have lintil July 15,
2009 to review the preliminary Infrastructure and Coordination Plan for
compliance with Article III of the Leases and with this Agreement, and
shall approve or disapprove same with recommended changes and
adjustments to bring it into compliance, all in accordance "'with the
Approval Procedure. The Parties shall grant the easements required under
the approved Infrastructure and Coordination Plan (subject to City
Commission approval, if necessary), ori a reasonable and timely baits. The
Parties agree to work cooperatively, diligently, and in good faith with each
other to finalize the Infrastructure and Coordination Plan no Mater
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MIA LASNN 180, 509, 934v5 5-7-09 090409.010000
September 1 2009, and to upd 4te same from time to time as necessan7
for the orderly, timely, and proer coordination and construction of the
Museum Park Project.
Section 3.3. Museum Common Areas and Aarkina. MAM and MSM shall work
together to design. develop and operate the common o shared areas of the Museums including
without limitation the plaza, Museum Drive (as defined in the Leases), and the parking
facilities (the "Parking Facility"). The Parkin& Facili. , shall be designed and operated as a
single; continuous under -building and under -plaza par'dng structure with a minimum of 440
parking spaces in the aggregate, as provided in Article I I of the Leases. The Parties recognize
the likelihood that the Improvements on each Site \N ill be constructed and completed at
different times. Accordingly, the portion of the Parkin,, Facility under each of the Museums
may be designed and constructed (and, if necessary, opera ed) as an independent structure from
the portion of the Parking Facility under the other muse to allow each of the Tenants to
obtain building permits, certificates of occupancy, o cupational licenses and all other
applicable authorizations, approvals, permits and license as may be necessary to develop,
construct, operate, manage, maintain and repair such Imp ovements, irrespective of whether
the Improvements on the other Site are underway, complet d andJor in operation. The Plaza
Improvements may, at the option of MSM and MAM, be co structed after completion of both
Museums to allow for coordination of construction but in n event later than seven (7) years
after the Effective Date. MAM and MSM shall each be esponsible for the construction,
operation and management of the portion of the Parking Faci ity located within its Site, at its
sole cost and expense. If one of the Leases is terminated prior t the completion of construction
of the Plaza Improvements under that terminated Lease, then t e Tenant under the remaining
Lease shall provide a minimum of 300 below grade parking s aces in conformance with the
Museum Park Master Plan, provided the City makes availabl and leases to such Tenant
additional adjacent land sufficient to accommodate the addition 1 parking spaces. However,
the sole remaining Tenant and the City will work diligently togeth r and in good faith to obtain
funding (including without limitation the right to use the Plaza Im ovements Allocation of the
terminated Tenant), execute necessary lease amendments, coo erate in the redesign and
redevelopment of the Plaza Improvement area and otherwise Facili to the construction of the
plaza and related parking facility, all in light of the changed circumstances at that time. The
terminated Tenant will cooperate with the remaining Tenant and the City in pursuing and
obtaining any necessary authorization for the use of such Plaza Impm�nts. ements Allocation for
the redesign, redevelopment and/or construction of the Plaza Improve
Section 3.4. Park Component Parking. The City shall be sol y responsible for all
costs required to design, construct, develop and operate parking located ind necessary for the
Park Component.
Section 3.5. Changes to Park Component. The City reserves the riot at any time and
from time to time, subject to Section 3.8 below and the other provisions o`this Agreement,
including without limitation Section 5.3 to: (a) make or permit reasonable chan!s or revisions in
its plan for the Park Component, including additions to, subtractions from, rea7angements of,
alterations of, modifications of, or supplements to building areas, improvements, walkways,
parking areas, driveways and other Park Component areas; (b) construct othez buildings or
improvements in the Park Component, all in general conformance with the Museum\,Park Master
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Plan: and (c) convey all or portions of the Park: C mponent for the purpose of constructing
thereon other buildings or impro-vements, including a ditions thereto and alterations thereof. all
in general conformance with the -Museum Park 'haste Plan and an -v restrictions on transfer set
forth in the Management Agreement; provided that th re is consensus among the members of
the Museum Park Steering Group (defined as an agree ent reached by the vote of the majority
of members of the Museum Park Steering Group voti g on a particular matter ) that: (i) such
development, changes or alterations do not materially ffect the Museums' ability to operate or
construct their respective projects as intended and (ii) any such change is consistent with the
purpose and design intent of the Museum Park Mas er Plan. Provided that the foregoing
conditions are met, the Museums agree to cooperate wi h the City in the development, changes
and/or alterations to the Park Component consistent with the provisions of this Section, including
specifically by providing necessary approvals pursuant o the Approval Procedure described in
Article VI below required for such development, chane s and/or alterations, including being a
co -applicant as necessary, provided that the City is resp nsible for all costs related thereto. y If
there is a lack of consensus among the members of thMuseum Park Steering Group under
clauses (i) and (ii) above, the matter shall be resolved in Arbitration pursuant to Article XI
below. If necessary, the Museums shall cause anyone obtaining an interest in the Property
through the Museums (or either of them) including, but no limited to, a Leasehold Mortgagee, to
execute such approvals as may be necessary in order for 037 development, change or alteration
meeting the requirements of this Section to take plac in accordance with the Approval
Procedure, provided that the City is responsible for all cos s related thereto. Any such additions
or changes to or expansion of the Park Component sha 1 be developed and constructed in
accordance with the terms and conditions applicable to he initial construction of the Park-
Component
arkComponent under this Agreement. This provision shall survive the expiration or earlier
termination of this Agreement.
Section 3.6. Cooperation during Development and P annin . The Parties acknowledge
the likelihood that the Improvements on each Site will be cons cted and completed at different
times, and that the Park Component may not be fully del' loped until the opening of the
Museums, as more particularly described in Section 3.2. Th Parties agree to cooperate and
work in good faith with each other in coordinating developmen of each of their components of
the Museum Park Project in order not to unreasonably interfere with each others' construction
activities and schedules. Each Party shall work cooperatively anin good faith with the other
Parties to maintain project timetables. The Parties agree to coop rate and work in good faith
with each other, with each other's design teams and with Coo�er Robertson in creating a
coherent ensemble of buildings and open spaces which acc mmodate the operational
requirements of the Museums, are enhanced by the park setting, and reinforce the activities and
character of the Museum Park Project. In order to enable the Parti to achieve this goal, the
City agrees to allow MSM and MAM to participate in City meeting with Cooper Robertson.
However, the City shall not be obligated to call special meetings wiiCooper Robertson for
MSM or MAM unless the requesting entity agrees to pay Cooper R ,bertson's fees for such
meetings. Moreover, any work requested by MAM or MSM of Cooper Robertson must be made
through the City's designated representative and shall be paid for by the requesting entity unless
it is a request that is expressly included in the basic services to be ',provided by Cooper
Robertson under its agreement with the City. Unless otherwise provided irii,,wrkting by the City
Manager, the City's designated representative shall be the same as the City`s representative in
the Project Coordination Team.
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Section 3.7. Replat. The Parties ackno« 1 dge that the City is currently in the process
of replattina Museum Park to vacate all previousl , existing utility easements and correct the
boundary line of Pump Station =?. The Circ- agrees that it shall proceed diligently to pursue the
submittal and finalization of the tentative and final replat with the appropriate Governmental
Authorky. The City shall keep the Museums update on the status of the replat at the monthly
Museum Park Steering Group meetings.
Section 3.8. Wind and Solar Restriction. In l ddition to the City's agreement to restrict
improvements within the Park Component to be consistent with the Museum Park Master Plan,
the City agrees to limit the height of permanent impro'.vements within an area of 400 feet from
the Museums to a maximum height of 40 feet. Flagpoles will be excepted from the foregoing
restriction. The initial term of the Wind and Solar Restriction shall run concurrently with the
first thirty (3 0) year term of the Leases. Not later than thirty-six (3 6) months (x) prior to the end
of the initial thirty year term; and (y) if then extended, prior to the end of each subsequent
renewal term, the City agrees to give good faith consideration to extending the term of the Wind
and Solar Restriction for the period of the next applicable term under the Leases, with the
approval of the City Commission. The City agrees to execute and record a Wind and Solar
Restriction in favor of the Museums in substantially the form attached hereto as Exhibit F
simultaneously with providing record notice of the Leases. .
Section 3.9. Museum Park Steering Group.
(a) Composition, Function, and Governance. The Museum Park Steering
Group shall be comprised of the president of MSM, executive director of
MAM, the City Mayor, the County Mayor, the Director of the City's Parks
and Recreation Department, and the Executive Director of the Bayfront
Park Management Trust of the City of Miami (or its successor, if any) or
their designees. The function of the Museum Park Steering Group is (i) to
oversee and assist in coordinating the planning, design and construction of
the Museum Park Project, (ii) to assist in expedited good faith,
collaborative problem -solving and conflict resolution among the Parties
pursuant to this Agreement and commercially reasonable rules to be
adopted by the Museum Park Steering Oroup, which rules shall be
designed to achieve the goals of the Museum Park Steering Group
(including those specifically described in;• the Leases), and (iii) to
constitute the governing body under the Masher Management Agreement.
In addition to rules for expedited problems resolution, the Museum Park
Steering Group shall adopt reasonable rules reg4rding its own governance,
(b) Meetings. The Museum Park Steering Group �rshall establish a regular
meeting schedule and beginning in September, 009, shall meet no less
frequently than monthly to allow members to provide applicable reports,
plans, and other information, discuss the progress and coordination of the
various components of the Museum Park Project so 4s not to unreasonably
interfere with each other's work or the operation of the Museums, and
address issues and problems that arise in a good \'faith, collaborative
manner. The City Project Liaison, County Project LiaiS' Pn, and the Project
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MIA LASHN 180,509,934x5 5-7-09 090409.010000
Coordination Team
Group meetings.
(c) Reports. Each Partyl
its design team's sco
updates) for each majc
its component of the
cost and budget info:
Museum Park Steerin
design development
Museum Park Project.
this Section is intei
coordination of the d
Project, and not for p
Party.
Section 3.10.
be entitled to attend all Museum Park Steering
agrees to provide the other Parties with (i) copies of
e for ivork. (ii) estimated timetables (with periodic
r stage of the architectural and engineering Nvork on
?Museum Park Project; and (iii) reports containing
anon. These reports shall be delivered at the
Group meetings on a monthly basis donna both
d durina construction of the components of the
The provision of information and materials under
idfd solely for informational purposes in the
.v�lopment of each portion of the Museum Park
urlioses of consent, approval, or comment by any
1
The Parties shall form an
administrative committee (the "Project Coordination Team'') that shall include one representative
M
each to be designated in writing by MSM, AM, and the City. Those representatives or their
designees shall attend all meetings of the Project Coordination Team, and shall work together to
assist in coordinating the planning, design and cons`,truction of the Museum Park Project. The
Project Coordination Team shall agree on a start date, which shall be no later than January 4,
2010, and, thereafter, meet no less frequently than weekly to make available (with any copies to
be made at the receiving party's expense) applicably schedules, reports, plans (including the
Construction Plans), construction contracts, updates to`'`the foregoing.and other information, and
to discuss the progress and coordination of the various `components of the Museum Park Project
in order to allow the Parties to develop their component' without unreasonable interference with
each other's work or the operation of the Museums, and i.o address issues and problems that arise
in a good faith, collaborative manner. It shall be the res onsibility of the representatives of the
Project Coordination Team to make available at such me4tings any necessary additional staff or
representative of such Party and/or additional informa'Tion in order to enable the Project
Coordination Team to carry out its duties. The City Proj'eet Manager and the County Project
Manager shall be entitled to attend meetings of the Proj�ct Coordination Team. The Project
Coordination Team shall make provision to call special meetings upon reasonable prior notice
from any member of the Project Coordination Team. The iembers of the Project Coordination
Team or their designees will attend the meetings of the MoserPark Steering Group in order to
provide information to the Museum Park Steering Group, including without limitation regarding
the reports of the Parties described in Section 3.9 above.
ARTICLE IV
MSM MUSEUM, MAM MUSEUM, AND PARK COMPONENT PLANS AND
CONSTRUCTION
Section 4.1. Plans. The City acknowledges that it has no interest or ownership rights to
the Plans or any other plans developed by either MSM or MAM for the Museums (including
without limitation the Construction Plans) and, if either MSM or htAM does not proceed with
15 '�
MIA LASHN 980, 509, 934v5 5-7-09 090409.070000
the NISIM Museum or MAM Museum for any re son whatsoever, each of the Museums shall
retain any and all rights it may have with respect tc all such plans. Each of the Museums agrees
to provide a set of final "as -built" drawings to the ity not later than thirty (3 0) days following
the issuance of its certificate of occupancy, '
Section 4.2. Construction Agreements.
(a) Museum Construction Ag-Teements, Each of MSM and M-01 shall select
Florida licensed contractor(s) and/or construction manager(s) to construct
its component of the Museum Park Project in accordance with state and
local law. Each of MSM and MAM shall enter into a fixed price
construction contract (the "MSM Construction Contract" and the "MAM
Construction Contract". respectively) for the construction of the MSM
Museum and the MAM Museum; respectively, either in the form of (i) a
stipulated sum or (ii) on the basis of the cost of the work plus a fee, with a
guaranteed maximum price or (iii) construction manager at risk with a
guaranteed maximum price, with a completed Schedule of Values and
projected construction schedule. Such initial fixed prices shall not exceed
the amounts for same shown in the MSM Funding Plan and MA.M
Funding Plan to be provided to the 'City Manager no later than 90 days
prior to each Museum's Commencement Date, and shall include a
contingency fund in an amount not less than three percent (3%) of the
Cost of Work (as defined in such construction contracts). In addition, the
MSM Funding Plan and MAM Funding Plan shall each show (x) a
separate owner -controlled contingency fund in an amount not less than
four percent (4%) of the Cost of Work to be used for unforeseen
conditions, and (y) an allocation (the "Plaza Improvements Allocation")
for each Tenant's share of the cost to construct its portion of the Plaza
Improvements, which shall not be less; than $3,000,000. The Plaza
Improvements Allocation may be used by 'each Tenant for the construction
of its portion of the Plaza Improvements, aid for no other purpose.
(b) City Construction and Agreements. The City shall select Florida licensed
contractor(s) and/or construction manager(s) to construct the Park
Component of the Museum Park Project in.,accordance with Applicable
Laws. The City shall, at its option, engage a general contractor or
construction manager under a fixed pric'%. contract or oversee the
construction of the Park Component directly. T,,,�he City shall, at its option,
be permitted to perform some of the work on the Park Component itself,
provided such work is done in compliance with Applicable Laws.
Section 4.3. City Project Liaison. The City may'utilize its owns,staff or it may hire and
designate by written notice to MSM and MAM a third patty independent project management
firm, which is not a member of the design team for either of the Museums`,or the City (the "City
Project Liaison") to (i) review the plans and specifications for the MuseuYns (but only for the
purposes and as specifically described in this Article IV); (ii) review the reports regarding
progress of construction as described in Article III above; and (iii) attend meei�ngs and otherwise
c
VIA LASHN 180,509,934V5 5-7-09 090409.010000
review and monitor on the City's behalf the design d construction of the Museum Park Project.
The costs of such services shall be paid by the Cit<-.
Section 4.4. County Project Liaison. The arties acknowledae that the County may
utilize its own staff or may hire a third party independ It project management firm. Nvhich is not
a member of the design team for either of the Muse ms or of the Cite (the "County Project
Liaison"), to review and monitor on the County's blalf the design and construction of the
Museum Park Project. The costs of such services shall bF paid by the County. The Parties shall
cooperate with the County to facilitate the County's revieN�,.
Section 4.5. Conformity with Applicable Laws
Plans, and all work performed by MSM with respect to t
respect to the MAM Museum and the construction of the
this Agreement, the Museum Park Master Plan, and all
Plans, all work performed by the City with respect to the
of the Park Component shall be in conformity with this
Plan, and all Applicable Laws,
Section 4.6. Construction of the Museums.
(a) Each of MSM and MAM shall be ei
utility work on the Possession Date, pt
applicable insurance requirements of S
The Construction
MSM Museum and by MAM with
iseums, shall be in conformity with
)plicable Laws. The Construction
-k Component, and all construction
�eement, the Museum Park Master
to commence site work and
that it has complied with the
13.2 of the Leases.
(b) Each of MSM and MAM shall be entitled,to commence construction of
the foundations and any other component of its Improvements once it has
provided to the City evidence reasonably sati�faetory to the City Manager
that (i) it has secured funds for construction of the MSM Museum or
MAM Museum (as applicable), in each case a cludmg exhibits, as more
particularly described in the MSM Funding Pl and MAM Funding Plan
(as applicable) described in Article V of th Agreement, (ii) it has
obtained the applicable required permit(s) fo the current stage of
construction, (iii) it has obtained a fixed or gul, anteed maximum price
construction contract for the applicable componeri to be constructed, (iv)
it has complied with the applicable insurance requ' �, ments of Section 13.2
of the Leases for the current stage of construction, ``(v) it has provided to
the City a cost -loaded construction schedule for t'\e MSM Museum or
MAM Museum (as applicable), in each case excl ding exhibits, that
demonstrates its ability to complete the construction f its facility within
the time stipulated in this Agreement, and (vi) it has �Issued a notice to
proceed for the foundation work, which shall be deeme to be the MSM
Commencement Date or the MAM Commencement Date,' applicable.
(c) During the construction of each of the Museums, the work of each of
MSM and MAM shall be available for reasonable observatiaTt by the City
Project Liaison and the County Project Liaison, duzing normal
construction hours (7 a.m. to 3 p.m. on weekdays except for legal
17
MIA LASHN 180,509,934v5 5-7-09 090409.010000 \
holidays) provided that all safety ah insurance requirements are complied
with and such inspection does not interfere with the progress of the
construction v, ork. I
I
(d) It is anticipated that the MSM M*urn shall be no less than 250,000
progran square feet, The square footage for the MSNI Museum size is
subject to change based on factors sudh as construction market conditions.
Any increase or decrease of greater than fifteen percent (15%0) in program
square feet shall be subject to the review and approval of the County and
the City and subject to the requirements of the Building Better
Communities General Obligation Bond Agreements. However, if the
County requires revie�� and approval of increases or decreases of less than
15% in program square feet, then the approval of the City shall also be
required,
(e) It is anticipated that the MAM Museum shall be no less than 100,000
program square feet. The square footage for the MAM Museum size is
subject to change based on factors such as construction market conditions.
Any increase or decrease of greater than fifteen percent (15%) in program
square footage shall be subject to the review and approval of the County
and the City and subject to the requirements of the Building Better
Communities General Obligation Bond Agreements. However, if the
County requires review and approval of indreases or decreases of less than
15% in program square feet, then the appi;oval of the City shall also be
required.
(f) The Museums acknowledge that they will ',be subject to, and shall use
diligent good faith efforts to comply with, the Miami -Dade County
Community Small Business Enterprise (' CSBE") and Miami -Dade
County Small Business Enterprise ("SBE") `;goals established for each
construction trade package in the construction of the Museums. The
Museums agree that CSBEs and SBEs having 4n actual place of business
in the City, including areas that have been `'designated in the City's
Community Development Plan as Neighborhd.,od Development Zones
("NDZ"), as depicted in Exhibit G, shall be given,, an equal opportunity to
compete for business in the construction of the',,,Museums. MAM and
MSM agree to include in each of the MAM Construction Contract and
MSM Construction Contract a prohibition against imposing any
requirements on CSBEs/SBEs that are not customary, not in compliance
with law, or that impose a financial burden that i.rtentionally impacts
CSBEs and/or SBEs. MAM and MSM also agree to iz'clude in each of the
MAM Construction Contract and MSM Construction 6,ontract and in each
bid package a commitment to use diligent efforts to co-i'ply with all of the
CSBE and SBE goals set forth in this section. The cons#uction of each of
the Museums shall be subject to a Miami -Dade County Community
Workforce Program ("CWP") goal of 15%. MSM and 'MAM may utilize
SBD's hiring clearinghouse, to recruit workers to fill needed positions for
18
MIA LASNN 180, 509, 934v5 5-7-09 090409.010000
skilled laborers for the construclon of the Museums, as well as any
available 'Workforce Deyelo ment Organizations. Workforce
Reeruitmenv" eferral Organizatio s and other job hiring databases
(including the South Florida \Vork orce and other union and non-union
elearinahouses), and including rhos to designated target areas ("DTAs")
in Miami -Dade Counn,, andtheOTA in which the Sites are located.
MSM and MAM shall use good farts}i efforts to recruit workers from the
DTAs and NDZs to satisA, the C'AT goal. in addition, MSM and MAM
will aspire to have as many local w6rkers and local firms as reasonably
practical and aspire to have at lest 50% of the workers for the
construction of the Museums be residents of Miami -Dade County, 20% of
which are City of Miami residents, and, aspire to have at least 35% of the
firms hired as subcontractors for the construction of the Museums be firms
located within Miami -Dade County. During the term of construction,
MSM and MAM shall provide quarterly, reporting regarding the progress
on the CSBE, SBE, and CWP goals described above. MSM and MAM
shall implement a small business outreach program designed to increase
small business participation during the construction of the Museums with
a view to supporting the aspirational small business and local hiring goals
described above, subject to Applicable Law. MSM and MAM shall
comply with all conditions and requirements imposed on them by the
County related to the construction of the Museums and the goals described
above,
Section 4.7. Permits and Approvals. MSM and MAM shall each secure and pay for
any and all Approvals necessary for proper construction and completion of its museum, as and
when required for the then current stage of development and/or construction of such museum.
The City recognizes its role in the development of the Museum. Park Project and shall use
reasonable, diligent efforts to take actions necessary to facilitate the permitting process in order
to facilitate the corrirnencement and completion of construction of each of the MSM Museum
and the MAM Museum, as soon as practicable. The City, in its role ;as a municipality, shall
designate an individual within the City Manager's office who will have a primary (though not
exclusive) duty to serve as the City's point of contact and liaison with My , M and MAM in order
to facilitate and coordinate the review and processing of all permit and license applications
across all of the various departments and offices of the City which have tbie authority or right to
review and approve all applications for permits and licenses. )
Section 4.8. Payment and Performance Bond. Each of MSM and MAM shall secure
and pay for a payment and performance bond in accordance with SectiaV 255.05 of Florida
Statutes for the construction of the MSM Museum and MAM Museum, as ap'�licable, issued by a
bonding company reasonably satisfactory to the County and the City, or reasonably equivalent
security. The rights of the County and the City under the bond(s) shall baksubordinate to the
rights of any Leasehold Mortgagee.
Section 4.9. Access; Construction Staging and Parking, Seawater'Line Easement.
MSM and MAM shall use (i) the access area described in the access easement shown on Exhibit
H attached hereto, and (ii) the construction staging and parking areas described in the
19
MIA LASNN 180,509,934Y5 5-7-09 090409.010000
Construction Staging and Parking Easement horn on EJubit I attached hereto, each of which is
to be granted pursuant to Section 3.1 of th Leases. The Construction Staging and Parking
Easement shown on Exhibit I replaces in its en iren Exhibit D-3 to the Leases. For its seawater
line and related equipment, A4S14 shall use tl e easement area described in the seawater line
easement shown on Exhibit J attached hereto to e granted pursuant to Section 3.1 of the Leases.
Section 4.10. Mechanics' Liens.
(a) MSM shall not knowingly sdfer or permit any mechanics' liens to be filed
against the title to the Prope , or the Museums or the Park Component,
nor against MSM's nor MAM' interest in the Property by reason of work,
labor, services or materials sup, lied to MSM or anyone having a right to
possession of the MSM Site o the MSM Museum. Nothing in this
Agreement shall be construed as constituting the consent or request of the
City, 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 4ny specific work on the MSM Site or
the MSM Museum nor as giving Iv{SM the right, power or authority to
contract for or permit the rendering 'of any services or the Ru-nishing of
any materials that would give rise 6 the filing of any mechanics liens
against the City's interest in the MSM �ite. if any mechanics' lien shall at
any time be filed due to the actions o or by a person or entity claiming
through MSM against the MSM Site or ` he Property, MSM shall cause it
to be discharged of record within thirty QO) days after the date MSM has
knowledge of its filing. If MSM shall fall to discharge such mechanics'
lien within that period, then in addition toy other right or remedy, either
MAM (if such lien affects the MAM Site) othe City may, but shall not be
obligated to, discharge the lien either by pa)4 ng the amount claimed to be
due or by procuring the discharge of the Dien by deposit in court or
bonding. Either MAM or the City as applica�le shall be entitled, if it so
elects, and without waiving any rights or remedies for default hereunder,
to compel the prosecution of any action fdr 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 either (if such lien affects
the MAM Site) or the City, as applicable, shall bd�repaid to MAM or the
City by MSM, immediately upon rendition of any invoice or bill by MAM
or the City. MSM shall not be required to ply or discharge any
mechanics' lien so long as MSM shall (i) in good faith proceed to contest
the lien by appropriate proceedings, (ii) have given 1 otice in writing to
MAM and the City of its intention to contest the valikity of the lien and
(iii) famish reasonably satisfactory evidence that fan4s are or will be
available to pay the amount of the contested lien claim v th all interest on
it and costs and expenses, including reasonable attomn ys' fees to be
incurred in connection with it. Neither MAM nor the City §hall be entitled
to pay the lien or compel the prosecution of any action with respect thereto
during any time that MSM is contesting such lien and had, provided to
20
MIA LASHN 180,509,934x5 5-7-09 090409.010000
l,Z,k-Ta1 and the Citi- reasonably kaiisfaciory evidence that it has the funds
available to pay the amount of th contested lien as proN-ided above.
1
(b) ?`SIAM shall not knowingly suffe or permit any mechanics` liens to be
filed against the title to the Pr pem, or the Muscums or, the Park
Component, nor against IMSM's n r 1�2 M's interest in the Property by
reason of work. labor, sen. -ices or aterials supplied to MAM or anyone
having a right to possession of th `', MAM Site or the MAM Museum.
Nothing in this Agreement shall be onstrued as constituting the consent
or request of the City, expressed or i' plied; 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 MA Siteor the MAM Museum n r as giving MAINZ the right, power
or authority to contract for or permit t e rendering of any services or the
furnishing of any materials that «you d give rise to the filing of any
mechanics liens against the City's int rest in the MAM Site. If any
mechanics' lien shall at any time be fil d due to the actions of or by a
person or entity claiming through against the MAN Site or the
Property, MAM shall cause it to be disch ged of record within thirty (3 0)
days after the date MAM has knowledge o its filing. If MAM shall fail to
discharge such mechanics' lien within tha period, then in addition to any
other right or remedy, either MSM (if suc lien affects the MSM Site) or
the City may, but shall not be obligated t , discharge the lien either by
paying the amount claimed to be due or by rocuring the discharge of the
lien by deposit in court or bonding. Either SM or the City as applicable
shall be entitled, if it so elects, and without w iving any rights or remedies
for default hereunder, to compel the prosection of any action for the
foreclosure of the mechanics' lien by the lieno 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 amo nts paid by either MSM
(if such lien affects the MSM Site) or the Ci as applicable, shall be
repaid to MSM or the City by MAM, immediate) upon rendition of any
invoice or bill by MSM or the City. MAM shall nit be required to pay or
discharge any mechanics' lien so long as MAM 11 hall (i) in good faith
proceed to contest the lien by appropriate procee ings, (ii) have given
notice in writing to MSM and the City of its rote tion to contest the
validity of the lien and (iii) furnish reasonably satisf�tory 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, incl ding reasonable
attorneys' fees to be incurred in connection with it. Neit er MSM nor the
City shall be entitled to pay the lien or compel the pro' ecution of any
action with respect thereto during any time that MAM is pretesting such
lien and has provided to MSM and the City reasonably' satisfactory
evidence that it has the funds available to pay the amount of e contested
lien as provided above.
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MIA L4SHN 180,509,934x5 5-7-09 090409,010000
(c) The City shall not knowingly Vuffer or permit any mechanics' liens to be
filed against the title to the Pr ern' or the Museums. nor against MS.Ms
nor M. -M's interest in the Pro ertv by reason of ��,ork, labor; sen -ices or
materials supplied to the City ozl anyone having a richt to possession of the
Park Component or any portion hereof. Nothing in this Agreement shall
be construed as constituting the, consent or request of either MS- or
MAM; expressed or implied; by i� ferenee or othenvise; to any contractor,
subcontractor, laborer or material `lan for the performance of any labor or
the furnishing of any materials; for, any specific work on the Sites or the
MSM Museum or the MAM Muse m nor as giving the City the right,
power or authority to contract for or ermit the rendering of any services
or the famishing of any materials tha would give rise to the filing of any
mechanics liens against the Sites or the MSM Museum or the MAM
Museum. If any mechanics' lien sha at any time be filed against the
Property or the MSM Museum or the M Museum due to the actions of
or by a person or entity claiming through the City, the City shall cause it to
be discharged of record within thirty (30 days after the date the City has
knowledge of its filing. If the City shall1 fail to discharge a mechanics'
lien within that period, then in addition to y other right or remedy, either
MSM or MAM may, but shall not be obliga ed 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. e entity that paid shall be
entitled, if it so elects, and without waivin any rights or remedies for
default hereunder, to compel the prosecute n of any action for the
foreclosure of the mechanics' lien by the lien o and to pay the amount of
the judgment, if any, in favor of the lieno with interest, costs and
allowances with the understanding that all am ants paid by the paying
entity shall be repaid by the City to MSM r MAM, as applicable,
immediately upon rendition of any invoice or bi ,l to the City. The City
shall not be required to pay or discharge any me ,hanics' lien so long as
the City shall (i) in good faith proceed to contest he lien by appropriate
proceedings, (ii) have given notice in writing to MSM or MAM, as
applicable, of its intention to contest the validity of the lien and (iii)
furnish reasonably satisfactory evidence that funds ar or will be available
to pay the amount of the contested lien claim with a 1 interest on it and
costs and expenses, including reasonable attorneys' fe` to be incurred in
connection with it. Neither MSM nor MAM shall be titled to pay the
lien or compel the prosecution of any action with respe, t thereto during
any time that the City is contesting such lien.
Section 4.11. Development Schedules. The Construction Plans for \\ each of the
Museums and the City shall include a projected progress schedule setting forth �'he projected
construction start date and time parameters required for completion of each of the M�,seums and
at least the Minimum Park Improvements as described in Section 5.3. The Parties shaft cause the
progress schedule to be updated periodically and shall deliver copies of same to the other Parties
in the reports to be delivered at the monthly Museum Park Steering Group meetings desc 'bed in
Section 3.9 of this Agreement. MSM and MAM shall complete the MSM Museum Zd the
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MIA LASHN 180, 509, 934v5 5-7-09 090409.010000
NLkM 'Museum as applicable on or before the '\1S?N-1 l ompletion Date and MAM Completion
Date; as applicable. subject to Unaz•oidable Delay. The Cite shall complete the Nlinimum Park
Improvements and the balance of the Park Component as rovided in Section 5.3.
Section 4.12. Procurement. The Parties acknowl edge that construction of the Museums;
which is not funded by the City. is not subject to the Cin- p ocurement code.
Section 4.13. Cost Overrun Guarantv. N4SlN1 shall ay (and hereby guarantees payment
of) all cost overruns in connection with the construction of e MSM Museum. MAM shall pay
(and hereby guarantees payment of) all cost overruns in cd ection with the MAM Museum.
The City shall pay all cost overruns in connection with the P4c Component.
Section 4.14. Requests for Information. The Parties s all make available for inspection
by the other Parties on a secure website to be established for 1 his purpose copies of each RFI
(request for information) submitted in connection with its compo` ent, together with the response
to same within a reasonable time after such response is received.
Section 4,15. FDOT Area. The MAM Building is currentjy designed to be constructed
along the boundary of the MAM Site and the FDOT Area (as defined in the MAM Lease), such
that MAM will require access to the FDOT Area in order to cons ruct the MAM Building as
currently contemplated and/or to perform any environmental remed;ation that may be required
by MAM to construct its building. The City agrees to use commer` Tally reasonable efforts to
assist and facilitate MAM, at no expense to the City, in obtainings ch permits, licenses, site
access agreements and other entry rights (by persons and vehicles) - om FDOT which permit
MAM to enter the FDOT Area, both on the ground and by cranes throw h air space, as necessary
or desirable for the construction of the MAM Museum and/or enviro ental remediation, if
needed. The City will apply for, accept and enter into such permits, lice ses and agreements in
its own name and/or on behalf of MAM if required to do so by FDOT, a,l of which shall be on
terms and conditions mutually acceptable to MAM and the City, provided \1that the City shall not
be required to assume any liability as a result of such permits, licenses and/dr agreements.
ARTICLE V
MeRtUINC
Section 5.1. Funding by MSM. The MSM Funding Plan shall includ. projected costs
and draw down schedules for County, private sector pledges, permitted fmari ings and other
funding for the design, development, and construction of the MSM Museum. MS agrees that it
shall use diligent, commercially reasonable efforts to secure funds sufficient to pa such design,
development, and construction costs, as and when due pursuant to the terms of t "s Agreement
and the MSM Construction Contract. Prior to the issuance of the notices to proceed described in
Sections 4.6(b), MSM shall deliver to the City Manager evidence reasonably satisfactory to the
City Manager that it has written commitments for such funds as required in Sections 4,�(b).
Section 5.2. Funding by MAM, The MAM Funding Plan shall include projected costs
and draw down schedules for County, private sector pledges, permitted financings and other
funding for the design, development, and construction of the MAM Museum. MAM agre�s that
23
MIA LASHN 180, 509, 934v5 5-7-09 090409.010000
it shall use diligent, commercially reasonab]
design, development, and construction costs.
Agreement and the Construction Contr,
described in Section 4.6 (b), MAM shall di
satisfactory to the City Manager that it has
Sections 4.6 (b).
Section 5.3. Funding by the Citv.
efforts to secure funds sufficient to pay such
as and when due pursuant to the terms of t1,1s
:t. Prior to the issuance of the notices top roceed
Iver to the City Manager evidence reasonably
yen commitments for such funds as required in
(a) If the boundaries of the 'Omni Community Redevelopment ,agency
("Omni CRA") are expande ,,, to include Museum Park, the City shall use
good faith efforts to cause the10mni CRA to contribute sufficient funds for
development of the Park Com�onent in accordance with the Museum Park
Master Plan. The Parties ac.Qwledge that the decision to use Omni CRA
funds for the Park Component'is subject to approval by the Omni CRA
Board of Commissioners. n
(b) As of the Effective Date, the
extended, and the City has not y4 i
the Park Component as shown in t `e
agrees that (i) it shall construct ce ' a
scope of which shall be agreed upon
into consideration the City's f nanciz
(12) months prior to the Museums'
museum, as described below, to
opening and operation of the Museun
to obtain funding and complete the
accordance with the Museum Park A
mm CRA boundaries have not been
dentified sufficient funds to complete
Museum Park Master Plan. The City
in Minimum Park Improvements, the
by the City and the Museums, taking
con
lotic
soon as possible thereafter. The provisi',
dition, by no later than twelve
e of proposed opening of the
the Park Component for the
(ii) it shall use diligent efforts
cc of the Park Component in
Plan and Applicable Laws as
n set forth in (ii) above shall
survive the expiration or earlier termin do
Minimum Park Improvements shall be co pl
the first of the Museums to be completed, pr,
received not less than twelve (12) months
proposed opening of such Museum and suffic
discretion of the City Manager, to allow it to
Improvements within said twelve (12) month
cooperate and work in good faith with e
development of each of their components of
the City's construction of the Minimum Par
where necessary, provision by the City of alt
and provision by the Museums of sufficient
discretion of the City Manager, to the property
Park Improvements) in order not to unreas
others' construction activities and schedule
n of this Agreement. The
eted by the opening date of
vided that the City shall have
dvanee written notice of the
ent access, in the reasonable
erform the Minimum Park
p' riod. The Parties agree to
ac other in coordinating
the useum Park Project and
k Improvements (including,
,mat, e construction access
acce�s, in the reasonable
to pe`�form the Minimum
onably �terfere with each
s. To the extent that the
construction of the Museums interferes with the City's a%ity to construct
the Minimum Park Improvements, then the deadline for co pletion of the
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MIA LASHN 180,509,934v5 5-7-09 090409.010000
N-linimum Park Improv
period of time.
Section 5.4. N
shall be extended for a commensurate
ontributions. :? 4SI\1. IMAM and the
City each agree to notify the other Parties promptly in ��vritinQ in the e�-ent that it becomes aware
of any material variation in the amounts of. schedules Ar or uses of amounts to be contributed by
such Party pursuant to this Agreement.
ARTICLE VI
APPROVAL PRO
Section 6, 1. Procedure. Any approvals of written ubmissions (for lack of doubt, these
do not include building and other permits issued by the City'n its municipal regulatory capacity)
requested pursuant to this Agreement shall be reviewed in ccordance with the procedure (the
"Approval Procedure") described in this Article. Each pers6V, including without limitation the
City, MAM, MSM, the Museum Park Steering Group, and any Leasehold Mortgagee, who is
requested to review and approve a written submission, shall, have a period of fifteen (15)
business days after the receipt of the written submission (vr submission must be complete
and detailed enough to allow reasonable review) to advise the re uesting parte, in writing, of its
approval or disapproval of same. If no written disapproval is re eived by the requesting party
within said 15 business -day period, then the written submission s. all automatically be deemed
approved by such person. In the event such person disapproves ` f part or all of such written
submission, that disapproving person shall include in its written not ication the specific reasons
for disapproval (which must be commercially reasonable and Mtbiri, any parameters for review
specified in this Agreement, if any) and the recommended steps nec`,,ssary to correct same. In
the event of a disapproval that complies with the requirements of this ', ction (including without
limitation time periods), the requesting party may at its option resu it the revised written
submission to the disapproving person revised to cure the ground of," he disapproval. Any
resubmission shall be subject to review by the disapproving person puf uant to the foregoing
plan approval process except that the time period for review shall be se',en (7) business days
until the same shall be finally approved by such person provided, however, t at if a submission is
resubmitted regarding substantially the same issue and is disapproved two (; times in total, the
matter shall be resolved as provided in Article XI of this Agreement. All Part s shall attempt to
resolve any disputes concerning any such written submissions in good faith`, d such Parties
shall not unreasonably withhold or condition or delay their consent to any , such requested
approval. `\
Section 6.2. Approvals and Consents. Wherever in this Agreement the approval or
consent of any party (including without limitation the City Manager) is required, it is�nderstood
and agreed that unless specifically stated to the contrary, such approval or consent s1*1 not be
unreasonably withheld, conditioned, or delayed. Wherever in this Agreement the approval or
consent of the City is required, except as otherwise specifically provided herein, or as may
otherwise be required by Applicable Laws in the opinion of the City Attorney, the written
approval or consent regarding the matter in question by the City Manager or his/her designee, on
behalf of the City shall satisfy the requirement for approval or consent of the City for `all
purposes. Each of MSM and MAM acknowledges that when the City acts or exercises any rights
25
MIA LASHN 180, 509, 934v5 5-7-09 090409.010000
or obligations under this Agreement, it is doing so in it capacity as the fee owner of the Property
and not as a municipalin,-. and that the role of the Cite s a municipality is separate and distinct
from the role of the City as the fee owner of the Prope •n, under this Agreement. NVherever in
this Agreement the approval or consent of MSM is re wired, except as othenvise specifically
provided herein; the written approval or consent regarding the matter in question by Gillian
Thomas shall satisfy the requirement for approval or c, nsent of the MSM for all purposes.
Wlierever in this Agreement the approval or consent of 1�C M is required, except as othervise
specifically provided herein; the written approval or consent regarding the matter in question by
Terry Riley or Jose Garcia shall satisfy the requirement for`.approval or consent of the MAM for
all purposes.
'1
ARTICLE VII
RELATED DOCUMENTS
Section 7.1. Master Management Agreement. Thi City, MSM and MAM shall
negotiate and execute an overall Management and Operation Agreement (the "Management
Agreement") with respect to the operation, maintenance, r�pair and replacement of each
component of the Museum Park Project, including the MAM Museum, MSM Museum, Park
Component and any shared facilities. The Management Atement will incorporate, at a
minimum, the provisions specifically contemplated by the IOU to be addressed in the
Management Agreement, to the extent not addressed or agreed io in the Leases and/or in this
Agreement. The Management Agreement mill also contain an a�greement by the City for the
initial thirty (30) year term of the Leases that it shall operate the P�k Component in accordance
with the Museum Park Master Plan and the Management Agree'ent, and it shall only sell,
convey or otherwise transfer the Park Component to an entity that (� agrees to operate the Park
Component as a park in accordance with the Museum Park Master' Plan and the Management
Agreement, (ii) provides satisfactory evidence to the Museumsthat it has the financial
wherewithal to meet the obligations of the City with regard to the Pqrk Component under the
Leases, this Agreement and the Management Agreement during that irty year term, and (iii)
agrees to bind itself and any subsequent transferees of the Park Component to all of the
foregoing restrictions and those set forth in Article XXV of the Leases.\ To the extent that the
terms and conditions of the Leases and/or this Agreement are inconsiste�t or conflict with the
terms and conditions of the Management Agreement addressing the s e subject matter, the
terms and conditions of the Management Agreement shall control.
Section 7.2. Building Better Communities General Obligation Bo d A eements and
GOB Administrative Rules. The Parties acknowledge that the County is pro iding funding for
each of the Museums pursuant to the terms of the Building Better Co unities General
Obligation Bond Agreements and the County administrative rules applic ble thereto, the
provisions of each of which are incorporated into this Agreement by reference. +. e Parties agree
to such provisions and shall abide by and cooperate in good faith to assist MS Mand MAM in
complying with the terms and conditions of such agreements and rules. To the extent that the
terms and conditions of this Agreement are inconsistent or conflict with' unexpired and
conditions terms of the Building Better Communities General Obligation Bond Agreements
and/or the County administrative rules applicable thereto addressing the same subj ed,,matter, the
26
MIA LASHN 180,509,934v5 5-7-09 090409.010000
terms and conditions of the Buildina Better Communities General Obliaation Bond Aareements
and the Counts- administrative rules shall control.
ARTICLE VIII
MORTGAGEES
The City agrees for the benefit of any Leake
Leasehold Mortgage, that any such holder, during tli��
of the same rights with respect to this Agreement as
Article XVII of the MSM Lease and the MAM Lease
the right to take over any and all of the applicable
and/or cure any default of the applicable Tenant herei
ARTICLE
INSURANCE, CASUALTY AND
Section 9, 1. Insurance and Casualtv. The
with any casualty as required under the Leases.
Section 9.2. Indemnification.
.old Mortaaaee which is the holder of any
pendency of this Agreement, shall have all
-e afforded to Leasehold Mortgagees under
as applicable, including without limitation
,Tenant's obligations and riahts hereunder
CATION
shall maintain insurance and deal
(a) To the maximum .extent permitted by'
defend and hold harmless the City, and
agents and instrumentalities from and
liability, cost or expense, including re
arising out of (a) any breach, default or
this Agreement, or (b) any personal or
e law, MSM shall indemnify,
officers, employees, attorneys,
.inst any claim, loss, damage,
viable attorneys' fees, directly
representation by MSM under
'ily injury, including death, to
any person and destruction of property fsulting from the negligent
performance (or failure to perform) by MS in the construction of the
MSM Museum; provided, however, that the\foregoing indemnification
shall not extend to those claims, losses, d ages, liabilities, costs or
expenses asserted against or suffered by the`City (or its officers or
employees) which are due to the negligent acts omissions of the City
(or its officers, employees, contractors, subco tractors, licensees, or
invitees), or to any action taken by the City in viola 'on of this Agreement
or any action not taken that is required un r this Agreement.
Notwithstanding the foregoing, MSM shall not be liab e for any liabilities,
damages, suits, claims and judgments of any nature (i eluding reasonable
attorneys' fees and expenses) arising from or in conned ion with any loss
or liability due to an Unavoidable Delay.
(b) To the maximum extent permitted by State law, MAM shall indemnify,
defend and hold harmless the City, and its officers, employees, attorneys,
agents and instrumentalities from and against any claim, loss, damage,
liability, cost or expense, including reasonable attorneys' fees, directly
27
MIA LASHN 180,509,934v5 5-7-09 090409.010000
arising out of (a) any breach, defau t or misrepresentation by MAN-4 under
this Agreement; or (b) any persona 1 or bodily injun-. including death; to
any person and destruction of pr�pem� resulting from the negligent
performance (or failure to perform)`by l\Z41\,Z in the construction of the
MAIM Museum; provided; ho«•ever, that the foregoing indemnification
shall not extend to those claims; 1�sses, damages, liabilities; costs or
expenses asserted against or suffer4d by the City (or its officers or
employees) which are due to the neg4gent acts or omissions of the City
(or its officers. employees; contractors, subcontractors, licensees, or
invitees), or to any action taken by the �ity in violation of this Agreement
or any action not taken' that isequired under this Agreement
Notwithstanding the foregoing, MAM sh 11 not be liable for any liabilities,
damages, suits, claims and judgments oPany nature (including reasonable
attorneys' fees and expenses) arising frorp or in connection with any loss
or liability due to an Unavoidable Delay.
(c) To the extent and within the limitations of Section 768.28 Fla. Stat., and
subject to the provisions of that statute whe6by the City shall not be held
liable to pay a personal injury or property `damage claim or judgment by
any one person which exceeds the sum set. forth in said statute, or any
claim or judgments of portions thereof, which., when totaled with all other
occurrences, exceeds the sum set forth in 'said statute, the City shall
indemnify and hold harmless the Museums, aiid their respective officers,
directors, trustees, employees, attorneys and 'agents from any and all
personal injury and property damage claims, losses, liabilities and causes
of action arising from the same claim which may arise solely as a result of
the negligence of the city in connection with i s nghts and obligations
under this Agreement. However, nothing hefem shall be deemed to
indemnify a Museum from any liability or cldm arising out of the
negligent performance or failure of performance d., the Museum or of its
respective officers, directors, trustees, employees, contractors or
subcontractors. Notwithstanding the foregoing, the 6ty shall not be liable
for any liabilities, damages, suits, claims and judgments of any nature
(including reasonable attorneys' fees and expenses) from or in
connection with any loss or liability due to an Unavoidable Delay.
(d) The provisions of this Section 9.2 shall survive the expii ion or earlier
termination of this Agreement.
ARTICLE X
DEFAULT
Section 10.1. MSM Default. In the event of the failure of MSM to perform any. of the
covenants, conditions or agreements which are to be performed by MSM under this Agreement,
and the continuance of such failure for a period of ninety (90) consecutive days after written
notice in adequate detail from the Parry asserting the default to MSM (provided, however, if such
28
MIA LASHN 180,509,934v5 5-7-09 090409.010000
failure cannot reasonably be cured within ninety (90) days
day period, shall have commenced and thereafter continue
such failure, said failure shall not constitute a default herei
Leasehold Mortzaaee shall have such rights of notice and el
MSM as granted herein as are made available to such Le
Lease for any default by MS? l as the tenant thereunder), th
the fullest extent permitted by law. shall have the right to p
at law or in equity, including the right to terminate this A2
thirty (30) days notice to the Parties, sue for and collect dar.
rights of the Party asserting the default and to enjoin MSM.
and MSM. within said ninety (90)
diligently to prosecute the cure of
ider, and provided further that any
,e With respect to the obligations of
>ehold Nlortgagee under the NISM
n the Party asserting the default, to
-sue an}, and all remedies available
-ement as to MSM after providing
iges and to specifically enforce the
Section 10.2. MAM Default. In the event of the failure of MAM to perform any of the
covenants, conditions or agreements which are to be performe by MAA4 under this Agreement,
and the continuance of such failure for a period of ninety (9) consecutive days after written
notice in adequate detail from the Party asserting the default to MAM (provided, however, if
such failure cannot reasonably be cured within ninety (90) da s, and MAM, within said ninety
(90) day period, shall have commenced and thereafter continue diligently to prosecute the cure
of such failure, said failure shall not constitute a default hereund r, and provided further that any
Leasehold Mortgagee shall have such rights of notice and cure ith respect to the obligations of
MAM as granted herein as are made available to such Leaseho d Mortgagee under the MAM
Lease for any default by MAM as the tenant thereunder), then th Party asserting the default , to
the fullest extent perrnitted by law, shall have the right to pursue y and all remedies available
at law or in equity, including the right to terminate this Agreeme t as to MAM after providing
thirty (30) days notice to the Parties, sue for and collect damages d to specifically enforce the
rights of the Party asserting the default, and to enjoin MAM.
Section 10.3. City Default. In the event of the failure of thk City to perform any of the
covenants, conditions or agreements which are to be performed by i under this Agreement, and
the continuance of such failure for a period of ninety (90) consecuti days after written notice
(provided, however, if such failure cannot reasonably be cured wit - said ninety (90) day
period, and the defaulting party, within such ninety (90) day period, sh 1 have commenced and
thereafter continued diligently to prosecute the cure of such failure, said failure shall not
constitute a default hereunder), then the Party asserting the default, to the llest extent permitted
bylaw, shall have the right to pursue any -and all remedies available at law` r in equity, including
the right to terminate this Agreement after providing thirty (30) days notice o the Parties, sue for
and collect damages and to specifically enforce the rights of the Party arse ' ing the default, and
to enjoin the City.
Section 10.4. Unavoidable Delay. For the purpose of any of the rovisions of this
Agreement, neither the City (including the City Manager) nor MAM, nor MSM, as.the case may
be, shall be considered in breach of or in default in any of its obligations under this Agreement in
the event of "Unavoidable Delays" (defined below). As used herein, the term"Unavoidable
Delays" shall mean delays due to strikes, slowdowns, lockouts, acts of God, inabili' y to perform
due to court order, inability to obtain Iabor or materials, or to settle insurance claims due to
governmental restrictions, delays relating to Applicable Laws or Approvals beyond th�\control of
the Party seeking same, war, enemy action, acts of terrorism, civil commotion, fire,'.;casualty,
flood, unusually severe weather conditions (such as tropical storms or hurricanes), delays by the
29
MIA LASHN 180,509,934x5 5-7-09 090409.010000
Citi•. the Count• or anv other Government agency. in any negotiation; review approval or
inspection required herein (which impact the obligations hereunder of the entity claiming
Unavoidable Delay), the application of any Applicable Laws, or an), other cause beyond such
Party's reasonable control, but not including such Pam's financial condition or inability to
obtain funding or financing (unless such condition arises fro i an Unavoidable Delay). All
Unavoidable Delays must be beyond the reasonable control of t le party asserting the delay. In
the event of the occurrence of any such Unavoidable Dela the time or times for the
performance of the covenants and provisions of this Agreement all be extended for the period
of Unavoidable Delay; provided, however, that (i) the Party seeld g the benefit of the provisions
of this Section shall, within thirty (30) days after such Parry sh 1 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; and (ii) no Unavoidable elay shall serve to extend the
time for performance of the covenants or provisions of this Agre ment by more than three (3)
years (unless extended by the Parties in writing).
Section 10.6. Obligations. Rights and Remedies Cumulative: Cure Periods. The rights
and remedies of the Parties, whether provided at law, in equity or utder 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 r medies for the same default
or for any other default or breach by the other party. No waive made by either parry with
respect to performance, manner or time of any obligation of any o , r party or any condition to
its own obligation under this Agreement shall be considered a waive of any rights of said party
with respect to the particular obligations of any other party or condit n to its own obligation, or
a waiver in any respect in regard to any other rights of said party. ` 11 notice and cure periods
applicable to alleged defaults shall be tolled in the event that a Party hallenges the existence of
the alleged default in an Arbitration or other legal proceeding until th date that the arbitrator or
presiding authority renders a decision in the proceeding, at with time, i such Party is found to be
in default, the cure period shall commence. All notice and cure perio s shall not apply to the
outside dates for the commencement and completion of construction ereunder; however, the
foregoing shall not limit the applicability of Unavoidable Delay or an Leasehold Mortgagee
protections granted in this Agreement or the Leases.
Section 10.6. No Indirect Damages. In no event shall any P qbe liable under any
provision of this Agreement for any special, indirect, incidental, conseque tial, exemplary, treble
or punitive damages, in contract, tort or otherwise, whether or not pro ided by statute and
whether or not caused by or resulting from the sole or concurrent neglige e or intentional acts
of such parry. Furthermore, the limitation of liability herein shallnot apply to any
indemnification for third party claims available at law or pursuant to, but subject to the
limitations in, Article IX. This provision shall survive the expiration or e lier termination of
this Agreement.
ARTICLE XI
DISPUTE RESOLUTION PROCEDURES
Section'l 1. 1. General Dispute Resolution. The Parties acknowledge that litigation is
expensive and time consuming, and that the parties to a dispute are frequently in�\a much better
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MIA LASHN 980,509,934v5 5-7-09 090409,090000
position to reach a satisfactory resolution- whkn v,-orking in a good faith, commercially
reasonable. collaborative manner. Accordingly he Parties agree that they Evill each work to
resolve anN- disputes in a good faith. commerciallyj reasonable. collaborative manner as follows:
(a) The Parties shall first «vork'to resolve any problems at the weekly Project
Coordination Team meeting s. MSM. N M\4 and the Cit) each agree to
notify the other Parties and the members of the Museum Park Steering
Group promptly in writing n the event that it becomes aware of any
continuing or repeated ma erial unreasonable interference with the
complaining party's work or operations where the offending party has
been informed of the problem but has not sufficiently addressed it. Such
mitten notification shall recite he foregoing facts with specifics and shall
be a condition precedent to the making of any claim for such damages in
any Arbitration or litigation pro ,eeding hereunder.
(b) If the problem is not resolved at "he Project Coordination Team meetings,
any Party may present the problem at a Museum Park Steering Group
meeting. The Museum Park Steeping Group will work with the members
of the Project Coordination Team tb resolve the issue. If the problem is not
resolved with the assistance of the. Museum Park Steering Group within
thirty (30) days after presentation, the issue may be submitted for
Arbitration at the request of any Party as provided below.
Section 11.2. Arbitrator(s). Any dispute hereunder which is expressly stated to be
resolved under this arbitration provision, shall be referred t0 and exclusively and finally settled
by binding arbitration, conducted in accordance with the 'Construction Arbitration Rules (or
similar successor rules thereto) and this Article XI. The place of arbitration shall be Miami,
Florida. In the event that any Party calls for a determination in arbitration pursuant to the terms
of this Agreement, the Parties shall have a period of ten (10) aays from the date of such request
to mutually agree on one arbitrator who, at a minimum, must l e an attorney with at least fifteen
(15) years experience practicing real estate construction laW� (with significant experience in
construction contracts and development projects and related litl;gation) in Miami -Dade County,
Florida. If the Parties fail to agree, each Party shall have an dditional ten (10) days to each
select an individual meeting the same minimum qualifications'. set forth above, and the three
arbitrators selected shall select an arbitrator to be the arbitrator fbthe dispute in question. If any
Party fails to make its respective selection of an arbitrator withii�1 the additional 10 -day period
provided for above, then the remaining Parties' selections shall seld'pt the arbitrator.
Section 113. Arbitration Process. The arbitrator shall de&ide the issues submitted to
him/her in accordance with (i) the language, commercial purposed restrictions contained in
this Agreement (including exhibits hereto, if any) and (ii) what is 1j, t and equitable under the
circumstances, provided that all substantive issues shall be determi ed under the laws of the
State of Florida and all matters involving the discretion of the City ', ommission shall not be
subject to arbitration, but instead shall be subject where appropriate t„ judicial review. With
respect to any arbitration proceeding hereunder, the following provisions'shall apply:
`i
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MIA LASNN 180, 509, 934v5 5-7-09 090409.010000
(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 conductin*a any arbitration shall be bound by the provisions
of this agreement and shall not have he power to add to, subtract from or
othenvise 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 j 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 pf 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 Parry shall be responsible for its own costs and expenses incurred in
the arbitration, including attorneys' fees, but the costs of the presiding
arbitrator and 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 with the assistance of the Museum Park Steering Group
and/or by submission to Arbitration, all disputes between the Parties shall
be resolved by litigation.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.1. Sovereign Rights. The City shall retain all of its sovereign prerogatives
and rights as a municipality under State law with respect to the Museum Park Project. It is
expressly understood that;
(a) The City retains all of its sovereign prerogatives and rights and regulatory
authority (quasi-judicial or otherwise) as a municipal corporation under
State law and shall in no way be estopped by virtue; of its execution of this
Agreement from withholding or refusing to issue', any approvals in its
municipal regulatory capacity of applications for building, zoning,
planning or development under present or future haws and regulations
whatever nature applicable to the planning, design, construction and
development of the Museum Park Project, or the operation thereof, or be
liable for the same; and
(b) The City shall not by virtue of this Agreement or any. other agreement
entered into by the City relating to the Museum Park Prosect, be obligated
32
MIA LASHN 980, 509, 934v5 5-7-09 090409, 010000
in its municipal regulatory capacity to ant N,1SM or l Lk,1\4 any approvals
of applications for building. zoning, planning or development under
present or future laws and ordinances o wahateN,er nature applicable to the
planning, design, construction; devel pment and/or operation of the
Museum Park Project.
Not-w-ithstanding and prevailing over any contrary provisic in this Agreement, any
covenant or obligation of the City in its municipal regulato y capacity that may be contained
in this Agreement shall not bind the City Commission or arly City department or authority,
committee or agency to Grant or leave in effect any zoning hanaes, variances, permits,
waivers; or any other approvals that may be granted, withhe d or revoked in the discretion
of the City in its municipal regulatory capacity or other applicable governmental agencies in
the exercise of its police power.
Section 12.2. 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 any of the Parties or as
constituting any Party as the agent or representative of any other Panty.
Section 12.3. Prevailing Laws and Venue. This Agreemd'nt 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 }crm, 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 Ci cuit Court of the Eleventh
Judicial Circuit in and for Miami -Dade County, Florida.
Section 12.4. Waiver of Jury Trial. The Parties hereby each '� knowingly, irrevocably,
voluntarily and intentionally waive any right such Party may have to a
any action, proceeding or counterclaim based on this Agreement, or art' i
connection with this Agreement or any amendment or modification of i
other agreement executed by and between the Parties in connection with
course of conduct, course of dealing, statements (whether verbal or writ
Party hereto. This waiver of jury trial provision is a material inducement
into this Agreement.
Section 12.5. Notices. Any notice or communication under this
writing and shall be deemed sufficiently given if hand delivered or dispat
certified mail, postage prepaid, return receipt requested, or by nationally
delivery service, to the appropriate party or entity, and their respective c
representatives as set forth below, at the address specified below or at
which the other parties shall be duly notified in writing:
by jury in respect of
out of, under or in
Agreement, or any
s Agreement, or any
n) or actions of any
i the Parties to enter
Agreement shall be in
che` by United States
ree ` zed overnight
ounse, and authorized
such other address of
(a) In the case of a notice or communication to the City, to:
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MIA LASNN 180,509,934v5 5-7-09 090409.010000
City of Miami
Attention: Cite Mana_er
Miami Riverside Buildina. 10th F1
444 S. Vv . 2nd Avenue
Miami. Florida 33130
City Attorney
Cit, of Miami
Miami Riverside Building, 9`h Floor
444 S.W. 2nd Avenue
Miami, Florida 33130
Department of Public Facilities
City of Miami
Miami Riverside Building, 3rd Floor
444 S.W. 2nd Avenue
Miami. Florida 33130
(b) In the case of a notice or communication to the gity Project Liaison, to:
City of Miami
City Manager's Office
444 S.W. 2nd Avenue
Miami, Florida 33130
Attn: Roger Hernstadt
(c) In the case of a notice or communication to
Museum of Science, Inc.
3280 South Miami Avenue
Miami, Florida 33129
Attn: President
With a copy to:
The Lumpkin Law Firm, P.A.
Gables International Plaza, 5th Floor
2655 Le Jeune Road
Coral Gables, Florida 33134
Attn: Peyton White Lumpkin, Esq.
34
MIA LASHN 180, 509, 934x5 5-7-09 090409.010000
to:
' White & Case LLP
200 South Biscayne Boulevard
Wachovia Financial Center, Suite 4900
Miami. Florida 33131
Attn: Victor M. Alvarez, Esq.
(d) In the case of a notice or communication to MA�2, to:
Miami Art Museum of Dade County Association, Inc.
101 Flagler Street
Miami, Florida 33130
Attn: Director
With a copy to:
Greenberg Traurig, P.A.
1221 Brickell Avenue
Miami, Florida 33131
Attn: Matthew B. Gorson, Esq.
Nancy B. Lash, Esq.
All notices shall be deemed received when actually delivered if deliverd by hand or by a
nationally recognized overnight delivery service and shall be deemed deli eyed five (5) days
following mailing in the event mailed as provided above. All no'ces of approval,
disapproval or default to be given under this Agreement must be in wr ting and must be
given as provided in this Section.
Section 12.6. Titles of Articles and Sections. The titles of the several pArts, Articles and
Sections of this Agreement are inserted for convenience of referencc tj and shall be
disregarded in construing or interpreting any of its provisions.
Section 12.7. Counterparts. This Agreement is executed in severalcount arts, each of
which shall be deemed an original, but all of which shall constitute one and the s e instrument.
Section 12.8. Successors and Assigns. All of the covenants, conditions an obligations
contained in this Agreement shall be binding upon and inure to the benefit oft e respective
successors and assigns of the Parties.
Section 12.9. Construction and Interpretation. Reference to any Art -1 e, section,
paragraph, exhibit, or subpart thereof, unless otherwise provided, shall refer tots greement.
Use of the term "including" shall mean "including, without limitation", Each of e Parties
hereto and their counsel have reviewed and revised, or requested revisions to, this A eement,
and the usual rule of construction that any ambiguities are to be resolved against th , drafting
parry shall be inapplicable in the construction and interpretation of this Agreement ,,and any
amendments or exhibits to this Agreement. I
Section 12.10. Attorneys' Fees. If it shall become necessary for any party to em�loy an
attorney to enforce or defend any of its rights or remedies hereunder because of the de?cult or
35
MIA LASHN 180, 509,934V5 5.7-09 090409, 010000
breach of any covenant. condition, or agreement hereunder by any other pam•. each party shall
be responsible for its men atnorneys' fees and court costs, including fees and costs incurred at
trial level and on appeals.
Section 12.11. Entire Aareement, This Agreement, including the
documents described or referenced in this Agreement, together contai
among the Parties with respect to the subject matter hereof, and supe:
��Titten or oral agreements among the Parties with respect to sucl
modification or amendment of this Aareement shall be binding upon
modification or amendment is in writing and signed by the Party to be boi
Section 12.12,
the Leases are incorporated into this Agreement by reference.
Section 12.13. Assignments, This Agreement may not be assign
part, by any parry, without the express written consent of the other party.
:? 1libits hereto and all
the entire agreement
-de any and all prior
subject matter. No
e Parties unless such
d thereby.
The provisions of
either in whole or in
Section 12.14. Severability. 1f any term or provision of this Agreem*' t or the application
thereof to any person or circumstance shall, to any extent, be invalid or', unenforceable, the
remainder of this Agreement or the application of such term or provision% to the persons or
circumstance other than those as to which it is held invalid or unenforcdable, shall not be
affected thereby, and each term and provision of this Agreement shall be vali� and be enforced
to the fullest extent permitted by law.
Section 12.15. Conflict with the Leases. To the extent that the terms And conditions of
this Agreement are inconsistent or conflict with the terms of the Leases that add' ess construction
related issues, the terms and conditions of this Agreement shall control.
[remainder of this page intentionally left blank]
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MIA LASFIN 180, 509, 934v5 5-7-09 090409.010000
IN `T1ITIN-ESS *\THEREOF. the Parties hereto have and replaced with executed this
Development Agreement on the day, month and year first above -written.
Attest:
By:
Priscilla A. Thompson, City Clerk
Approved as to form and correctness
By:
Julie 0. Bra, City Attorney
Witnesses:
Print Name.-
Print
ame:
Print Name:
37
MIA LASHN 180,509,934v5 5-7-09 090409.010000
AS TO THE. CITY:
THE CITY OF M1A\11, a municipal
corporation of the State of Florida
By:
Pedro G. Hernandez,
City Manager
Approved as to Insurance Requirements:
By:
LeeAnn Brehm, Risk Management
Administrator
As to MSM:
MUSEUM OF SCIENCE, INC., a Florida not-
for-profit corporation
By:
Name: Gillian Thomas
Title: President
'Witnesses:
Print Name:
Print Name:
38
MIA LASHN 180,509,934v5 5-7-09 090409.010000
As to INIAM:
INILAMI ART'\MUST
ASSOCIATION. r-\,-
corporation
Ncorporation
By:_
Name:
Title:
'M OF DADE COUNTY
a Florida not-for-profit