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HomeMy WebLinkAbout5-28-09 Exhibit SUBENVIRONMENTAL REMEDIATION AGREEMENT THIS ENVIRONMENTAL REMEDIATION AGREEMENT (the "Agreement") is made as of this 9th day of July 2009, by and among (i) the Miami Art Museum of Dade County Association, Inc., a Florida not-for-profit corporation ("MAM"), (ii) Museum of Science, Inc., a Florida not-for-profit corporation ("MSM"); MAM and MSM are collectively referred to herein as the "Museums"), and (iii) the City of Miami, a municipal corporation of the State of Florida (the "city") WITNESSETH: WHEREAS, Miami -Dade County, the City, the Miami Sports and Exhibition Authority, MAM, MSM, and the Historical Association of South Florida, Inc. have entered into the Memorandum of Understanding executed on September 12, 2008 Concerning the Development, Design, Construction and Operation of the Museum Park Project (the "MOU") on land located in the Greater Miami downtown area, known as both "Bicentennial Park" and "Museum Park"; and WHEREAS, pursuant to the MOU, on December 11, 2008, the City Commission adopted Resolution No. 08- 0707, approving the terms of, and authorizing the City Manager to execute a lease agreement between the City and MAM (as amended, modified, restated, extended and supplemented from time to time, the "MAM Lease"), and a lease agreement between the City and MSM (as amended, modified, restated, extended and supplemented from time to time, the "MSM Lease"), for the development and operation of the Museum Component of the Museum Park Project in Museum Park (collectively, the "Leases"); and WHEREAS, the Leases provide that the execution of an Environmental Remediation Agreement is a condition precedent to the possession date under the Leases and failure to execute the Environmental Remediation Agreement within 1 year from the effective date of the Leases may result in the termination of the Leases; and WHEREAS, the City, MAM and MSM have negotiated this Environ riental Remediation Agreement which, consistent with the terms of the Leases and the MOU, provides for, among other things, (i) the City's obligation to contribute up to $2 ' million toward the cost of environmental remediation of the property covered by the Leases, as amended (the "Subject Propert "), and (ii) the right of the Museums to terminate the Leases by June 9, 2009, if the expected cost of remediation exceeds $2 million and the Museums elect to. not fiend the deficiency, and WHEREAS, sampling conducted by environmental consultants for the Museums has indicated the presence on the Subject Property of contaminants of concern in excess of established soil and ground water clean-up target levels as set forth in Chapter 62777, Fla, Admin. Code (the "Contamination," as further defined below); and WHEREAS, the City has agreed in the MOU to pay up to $2 million towards the cost of remediation "necessary to provide -a clean site necessary for the Museums to construct their facilities." (M2825281;1) MIAMI 823440 (2K) 00 <, NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Museums and the City hereby agree as follows: 1. Recitals. The foregoing recitals are true and correct and are incorporated herein by reference. Capitalized terms used herein without definition shall have the meanings given to them in the Leases. 2. Definitions. (a) "Contamination" shall mean the presence of pollutants and hazardous substances in the soil and ground water in excess of federal, state, or county applicable standards or cleanup target levels, including but not limited to Ground Water Cleanup Target Levels and Soil Cleanup Target Levels as set forth in Chapter 62-777, Fla. Admin. Code. (b) "Environmental Cost" shall mean the actual cost to perform and complete the Environmental Remediation with respect to the Subject Property only. "Environmental Cost" shall not include any costs or fees incurred by legal counsel for the Museums or the City. (c) "Environmental Cab" shall mean, for purposes of this Agreement only, the $2 million limit on the portion of the Environmental Costs that the City is obligated to pay for Environmental Remediation pursuant to this Agreement or the Leases. (d) "Environmental Remediation" shall include all actions necessary to provide a clean site necessary for the Museums to construct their facilities, including without limitation any additional work required to delineate the extent of any Contamination beyond the work performed for the Museums as part of their environmental due diligence. Environmental Remediation shall also include all work required to address any Contamination pursuant to Chapters 62-770, 780, or 785, Florida Administrative Code, or Chapter 24, Miami -Dade County Code, including, but not limited to, preparation of a Site Assessment Report and/or Remedial Action Plan (the "Plan")..Notwithstanding the foregoing, nothing in this definition shall obligate the City to incur expenses or pay costs in excess of the Environmental Cap. (e) "Governmental. Authority" shall mean any federal, state, county, or local governmental agency asserting jurisdiction over the Environmental Remediation. (f) "No Further Action" shall mean a no further action determination as. provided for and in conformance with Rule 62-780,680, Fla, Admin. Code, either without Conditions or with Conditions. 3. Due Diliiience, Cost Estimate, and Election to Proceed. (a) The Museums have procured Phase I and Phase II Environmental Site Assessments prepared by EE&G Environmental Services, LLC ("EE&G") as part of the Museums' environmental due diligence, which were delivered to the City on April 9; 2009: The Phase Il Environmental Site Assessment contains EE&G's findings with respect to the current environmental condition of the Subject Property and recommended actions to perfonn the Environmental.Remediation with respect to the Subject Property. (b) On March 11, 2009, the Museums delivered to the City the cost estimate for the Environmental Remediation with respect to the Subject Property (the "Cost Estimate"). Because the Cost Estimate exceeds $2 million, the Museums shall have a period of ninety (90) days from delivery of the Cost Estimate to the City to agree how to apportion payment of the Environmental Cost in excess of $2,000,000 among themselves and to advise the City in writing pursuant to paragraph 14 herein that they intend to proceed with the Museum Park Project (the "Election to Proceed"). If the Museums do not reach an agreement allocating responsibility for the Environmental Cost in excess of $2,000,000 among themselves and do not provide the Election to Proceed within. said 90 -day period, then this Agreement shall be null and void and of no further force and effect and the Leases shall be deemed terminated. (c) If the Museums provide the Election to Proceed, the Museums shall be deemed to covenant and represent that they will be financially responsible and hold the City harmless for any and all of the Environmental Cost in Excess of the Environmental Cap until the Environmental Remediation at the Subject Property is deemed complete pursuant to paragraph 5 of this Agreement herein. At the same time they provide the Election to Proceed, the Museums shall provide the City with written evidence that they have the financial ability to pay any and all Environmental Cost in excess of the Environmental Cap. 4. Environmental Remediation. (a) By no later than July 1, 2009, the City shall engage an environmental consultant reasonably acceptable to the Museums (the "Consultant") to prepare a draft Plan that includes the Subject Property. The Museums and the City shall work jointly to support the Consultant's development of a Plan that is consistent with the intent of the MOU and reasonably acceptable to all Parties. (b) The City shall have final decision-making authority with respect to approval of the Plan, consistent with Section 10 of this Agreement. Nothing in this Agreement shall divest or abrogate the City's right to final approval of the Plan which approval shall not be unreasonably withheld, in the event the Museums elect to proceed under Sections 4(c) or 9(b) of this Agreement. The City shall use its best efforts to prepare and submit the Plan to the. Governmental Authorities by no later than Septemberl, 2009. The City shall manage the Consultant's efforts to obtain all necessary approvals by Governmental Authorities, including approval of the Plan. With respect to the Subject Property, the City shall use its best efforts to obtain approval of the Plan by November 30, 2009. Once commenced, the City shall diligently proceed to perform the Plan to completion. (c) At their sole discretion, the Museums may perform the work authorized by the Plan with respect to the Subject Property provided that they notify the City in writing pursuant to paragraph 14 herein of their intent to do so within fifteen (15) calendar days of the Museums' receipt of DERM's approval of the Plan. Otherwise, the City shall manage the Consultant's performance of the Environmental Remediation. If the Museums elect to perform the work authorized by the Plan with respect to the Subject Property, they shall engage and manage an enviromnental consultant reasonably acceptable to the City' ("the Museums' Consultant"). (d) The agreements with the Consultant and,, if applicable, the Museums' Consultant (together, as may be the case, the "Parties' Consultants"), shall provide that the Environmental Remediation shall be conducted in a good and workman -like manner, consistent with good practices and standards of the environmental remediation industry in Miami -Dade County, Florida, and in accordance with Applicable Laws, and shall be initiated and completed as expeditiously as possible, consistent with the terms of this Agreement. The agreements shall also include indemnifications in favor of the City and the Museums and shall name the Museums and the City as additional insureds, providing scope and amounts of coverage mutually acceptable to the Museums and the City. Such policy shall remain in effect until the completion of the Environmental Remediation as defined in Section 5 of this Agreement. Prior to conducting any Environmental Remediation, the Parties' Consultants shall Rirnish the Museums and the City with certificates of insurance, reasonably acceptable to the Museums and the City. 5. Completion of the Environmental Remediation. The Environmental Remediation with respect to the Subject Property shall be deemed to be completed at the earliest of any of the following: (a) Any Governmental Authority with jurisdiction over the Environmental Remediation has issued, one or more No Further Action(s) without Conditions that includes the entirety of the Subject Property; or (b) Any Governmental Authority with jurisdiction over the Environmental Remediation has issued one or more No Further Action(s) with Conditions that includes the entirety of the Subject Property, which Conditions, in the reasonable judgment of the Museums, shall not adversely affect the construction of the Museums' Improvements (as defined in the Leases) as planned, including without limitation the cost of construction, or the use of the Subject Property for operation of the Museums in accordance with the Leases, and any conditions to the No Further Action have been completed to the Govermnental Authority's satisfaction, except for conditions to the No Further Action which by their nature are continuous or ongoing for the entire duration of the No Further Action, such as a requirement to maintain an impervious cap. 6. Compliance with No Further Action. The City and the Museums, to the extent applicable, shall comply with any conditions of the No Further Action, except that for the Subject Property only, (a) once the Environmental Cap has been exceeded, any cost of compliance with affirmative obligations under the No Further Actions) shall not be at the City's expense, and (b) neither the City nor the Museums shall modify the terms of the No Further Actions) without the written consent of the other party. 7. Site Access. , If the Museums do not elect to perform the Environmental Remediation of the Subject Property pursuant to this Agreement, the Museums shall provide the City and the City's Consultant unimpeded access to the Subject Property. 8. Communications. (a) The City shall cause the Consultant to report to the Museums and the City simultaneously on the progress of the preparation, submittal, and approval of the Plan, and the 4 progress and perfonnance of the Environmental Remediation at least monthly (the "Monthly Environmental Remediation Status Report"). (b) For purposes of Section 8 only, the City and the Museums shall, within five (5) Business Days following the executive of this Agreement, identify in writing one technical representative each to act as their environmental representatives (the "Designated Environmental Representatives") to transmit and receive all notices required under Section 8. In the event that the Designated Environmental Representatives are unavailable (e.g., on vacation or leave), an alternative person should be designated to ensure that communications between the Museums and the City continue without interruption. (c) The City's Designated Environmental Representatives shall provide or cause the Consultant to provide the Museums' Designated Environmental Representative with reasonable advance notice of any proposed meeting or telephone conference with Governmental Authorities concerning the Contamination or the Environmental Remediation so the Museums' representatives have the opportunity to attend and participate in such meeting or telephone conference. (d) The City's Designated Environmental Representative shall provide or cause the Consultant to provide the Museums' Designated Environmental Representatives with copies of all correspondence with any Governmental Authorities concerning the Contamination, the Environmental Remediation, or approvals related to the Contamination or Environmental Remediation promptly upon receipt or.transmittal. Said correspondence shall include but not be limited to any letters, email, electronic enclosures transmitted by email, reports, plans, documents, tables, graphs, photographs, or discs (herein after "Envirommental Correspondence"). (e) Prior to submission to any Governmental Authority, the Museums' Designated Environmental Representative shall be provided with, for their review and comment, a draft of any Environnmental Correspondence required to be submitted to any Govermnental Authority for its approval and/or consent. Except as required by Environmental Law, the Museums' Designated Environmental Representative shall have five (5) Business Days to review any draft materials and transmit their comments to the City's Designated Environmental Representative. Neither the Consultant nor the City may finalize any draft materials until the earlier of either the lapse of the 5 -day review period or the transmittal in writing of the Museums' continents, which comments the City shall consider and incorporate in their reasonable discretion. (fJ If, pursuant to this Agreement, the Museums elect to perform the Environmental Remediation of the Subject Property, the Museums shall have reciprocal obligations under this Section 8 to the City. (g) Notwithstanding Section 8 subparagraphs (a) through (e) above, the Museums shall have the right to communicate directly with the Miami -Dade County Department of Environmental Resources Management ("DERM") on any matter related to the Environmental Remediation contemplated for the Subject Property until such time as they submit the Election to Proceed to the City (the "Preliminary DERM Communications"). Any Preliminary DERM Conununications shall be made in cooperation with the City, including that the Museums will provide the City with final copies of all written materials submitted to DERM simultaneously with their submittal and shall provide the City with reasonable notice and opportunity to participate in any teleconference and meeting that the Museums schedule with DERM or that DERM schedules with the Museums. (h) All expenses incurred by the Museums in connection with any Preliminary DERM Communications, including but not limited to attorneys' and consultant fees and costs, shall be borne solely by the Museums and shall not constitute or otherwise be deemed an Environmental Cost that the City is obligated to pay for Environmental Remediation pursuant to this Agreement or the Leases. 9. Time is of the Essence. The Parties shall be responsible for the diligent performance of their respective duties set forth herein. (a) No party shall be deemed to have violated this provision of the Agreement if the cause for delays is an Unavoidable Delay or otherwise beyond the party's control, including without limitation delays occasioned by the acts or omissions of any Governmental Authority. Except as expressly set forth herein, time is of the essence in completion of the Environmental Remediation. (b) In the event (i) the City fails to engage the Consultant by July 1, 2009, (ii) the Museums reasonably believe that the City will not submit the Plan to DERM by September 1, 2009, or, (iii) based on written comments from DERM to the Plan submitted by the City, the Museums reasonably believe that DERM will not approve the Plan by November 30, 2009, and, in the case of (i), the failure or, in the case of (ii) and (iii), the reasonably likely failure to meet any of these deadline is not caused by any lack of cooperation on the part of the Museums, the Museums may, within five (S) Business Days of the applicable deadline and provided that written notice is given to the City pursuant to paragraph Section 14 herein, elect at that time to perforin the Environmental Remediation with respect to the Subject Property (the "Early Remediation Assumption Notice"), Other than the costs associated with the finalization or modification of the Plan by the Museums that would be duplicative of those costs already incurred by the City in preparation of the Plan, the City shall pay for the Environmental Cost as set forth in subparagraphs (b), (c), and (d) of Section 12 of this Agreement from the date of the Early Remediation Assumption Notice, as may be applicable. By way of clarification, under no circumstances shall the amount paid by the City toward the Environmental Cost exceed the Environmental Cap, and the City's obligation, if any, to reimburse the Museums is governed accordingly. 10. Cooperation. Except as specifically set forth in this Agreement or in the event that the Museums elect to perform the Environmental Remediation with respect to the Subject Property, and as otherwise required by law, the Museums covenant and agree that to the extent that it has comments on the Environmental Remediation, it shall make such comments directly to the City and will not independently contact or meet with the Governmental Authority regarding the Environmental Remediation. The City shall, reasonably ' and in good faith, consider all comments offered by the Museums. The City and the Museums covenant and agree that they will use their respective good faith efforts to cooperate in connection with the tiunely and cost- effective performance of the Environmental Remediation, for both the Museum Park Parcel and the Subject Property, including without limitation, development and implementation of a cost- effective Plan for the Museum Park Parcel and, consistent with Sections 2(d) and 5 of this Agreement, the Subject Property (and any modification thereto that may become required by law or this Agreement or otherwise necessary), and the consideration of cost-effective remediation solutions such as raising the elevation of the Museums' facilities or the reuse of soil within Museum Park, and furtherance of the objectives of this Agreement. 11. Brownfield Designation and Rehabilitation. (a) Nothing herein shall preclude the City from electing to designate the Subject Property as a Brownfield Area and entering into a Brownfield Site Rehabilitation Agreement ("BSRA"), as those terms are defined in and processes provided by the Brownfields Redevelopment Act, §§ 376.77 - 376.85, Florida Statutes, and seeking one or more Voluntary Cleanup Tax Credit ("VCTC") certificates pursuant to Chapter 62-788, Fla. Admin. Code unless such actions conflict with this Agreement or any other agreements between the City and Museums. In no event shall the City's efforts to designate the Subject Property as a Brownfield Area be a reason or excuse for delay in the performance and completion of the Environmental Remediation or cause a delay in the commencement of construction. (b) If the City so elects, the Museums agree to cooperate in the efforts to designate the Subject Property as a Brownfield Area, enter into a BSRA, and obtain one or more VCTC certificates, except that the Museums shall not be required to expend funds to do so or delay performance of the Enviromnental Remediation for same. (c) All provisions of this Agreement relating to the City's obligations with respect to the Environmental Remediation apply to any actions the City may take under a BSRA relating to the Subject Property during the terms of the Leases. The terms of a BSRA with respect to the Subject Property shall not lessen or alter the City's obligations to perform the Environmental Remediation with respect to the Subject Property under this Agreement. To the extent that the terms of a BSRA relating to the Subject Property conflict with the terms of this Agreement, the terns of this Agreement shall govern. (d) Costs incurred in connection with the City's efforts to seek designation of the Subject Property as a Brownfield Area shall not be considered part of the Environmental Cost, 12. Payment of the Environmental Cost. (a) The Consultant shall provide estimates as needed for its work on the Environmental Remediation with respect to the Subject Property to the City and the Museums. The City and the Museums shall review the estimates and note any objections to the estimates in writing within ten (10) days of receipt. Failure to object within the time allotted shall constitute approval of the estimates. (b) The Consultant shall from time, to time, but no more - frequently than monthly, submit a detailed invoice or reimbursement request to the City and the Museums for the Environmental Cost authorized by this Agreement, along with reasonable substantiating documentation as requested by the City and/or the Museums and such other evidence as the City and/or the Museums may request to document verified compliance with the terms of the Consultant's agreement (by way of example, compliance with the insurance requirements) (collectively, a "Disbursement Request"). Unless the City or the Museums object to the Disbursement Request within ten (10) Business Days of receipt, the Disbursement Request shall be deemed approved and the City shall pay same in accordance with the Consultant's agreement no later than thirty (30) days within receipt of all properly documented invoices. Neither the City nor any Museum shall be permitted to object to a Disbursement Request unless it reasonably believes that the invoices and/or supporting documentation included in the Disbursement Request does not evidence a proper disbursement or a proper allocation to the Subject Property under this Agreement. If any Party gives timely written notice of its objections, (i) the City shall pay the portion (if any) of the Disbursement Request to which there was no objection, and (ii) the Consultant, City and Museums shall use commercially reasonable and good faith efforts to resolve the objections regarding the disputed portion of the Disbursement. (c) If the Museums elect to perform the Environmental Remediation of the Subject Property, the Museums shall be entitled to reimbursement from the City of each Disbursement Request paid by the Museums hereunder, subject to the terms hereof, including the provisions of Section 12(b) above. The City shall make payment within thirty (30) days after the date the City receives a "reimbursement request" from the Museums, which shall consist of a copy of the Disbursement Request for which the Museums seek reimbursement and evidence of the Museums' payment of same (such as cancelled checks or paid invoices). (d) The Museums shall be entitled to reimbursement from the City for the actual costs invoiced by EE&G and paid for by the Museums (the "EE&G Costs") for the combined Phase I and Phase II Environmental Site Assessments dated April 6, 2009. In consideration for reimbursing EE&G Costs to the Museums, the Museums shall authorize EE&G to issue a Right of Reliance Letter in favor of the City, which letter shall expressly state that the City may use any and all data from the EE&G Reports as may be necessary in connection with Site Rehabilitation at Museum Park (the "EE&G Right of Reliance Letter"). The City shall make reimbursement to the Museums consistent with this paragraph no later than thirty (30) days after receipt of the EE&G Right of Reliance Letter. All monies paid to the Museums pursuant to this paragraph shall be included in the definition of Environmental Costs and subject to the Environmental Cap. (e) If at any time it appears that the Environmental Cost associated with Remediation at the Subject Property will exceed the Environmental Cap, the City shall only be required to, as may be applicable, pay or reimburse the Museums for any invoice by the ratio of the Environmental Cap to the Environmental Cost, with the numerator being the Environmental Cap and the denominator being the Environmental Cost. By way of example, if the total anticipated Environmental Cost is $5 million, then the City shall be required to pay two-fifths of every disbursement request up to the Enviromnental Cap. Under no circumstances shall the amount paid by the City toward the Environmental Cost exceed the Environmental Cap, and the City's obligation, if any, to reimburse the Museums is governed accordingly. (i) The Parties acknowledge (i) the City's intent to cause the Omni Cominunity Redevelopment Agency ("CRA") to contribute the funds necessary to pay the Environmental Cost if the boundaries of the CRA are expanded to include Museum Park, and (ii) the City Commission requirement that payment of the Environmental Cost is subject to the City Manager identifying a funding source that does not impact the City's general fund in the event the CRA is not expanded or does not contribute the funds for the payment of the Environmental Cost. Notwithstanding anything herein to the contrary, the City shall identify a funding source to pay the Environmental Cost as soon as possible and, in any case, prior to incurring the Environmental Cost, and any delay in the City's identification of a funding source shall not affect the right of the Museums to proceed under Section 9(b) of this Agreement. 13. Indemnification and Allocation of Liability. Article VIII of each of the Leases contains certain provisions regarding indemnification and allocation of responsibility for Hazardous Materials and other enviromnental conditions before and after the Possession Date under the Leases. Such provisions are incorporated by reference into this Agreement. In the event of any conflict between the terms of this Agreement and Article VIII of the Leases, the provisions of Article VIII of the Leases shall govern. 14. Notices. All notices or other communications required or permitted to be given 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 deliver service, to the appropriate party or entity, at the address specified below or at such other address of which the other parties shall be duly notified in writing: If to the City: City of Miami Miami Riverside Building, 10th Floor 444 S.W. 2nd Avenue Miami, Florida 33130 Attn: City Manager with a copy to: Office of the City Attorney City of Miami 444 S.W. 2°a Avenue, 9`" Floor Miami, Florida 33130 Attn: City Attorney To MAM: Miami Art Museum of Dade County Association, Inc. 101 Flagler Street Miami, Florida 33130 Attn: Director To MOS: Museum of Science, Inc. 3280 South Miami Avenue Miami, Florida 33129 Attn: President 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. 15. Remedies. In the event of a breach of this Agreement, then in addition to any specific rights and remedies provided for under the terms hereof, the non -breaching party shall have all remedies available in equity and at law for the redress of such default, including without limitation (i) an action for damages, (ii) an action for temporary and/or permanent injunction, (iii) an action for specific performance of the terins, conditions and obligations of this Agreement, and (iv) any combination of the foregoing. In the event any action is brought to enforce the terms, conditions and obligations of this Agreement, the prevailing party in any such action shall be entitled to the recovery of costs and disbursements of such action, as well as reasonable attorney's fees incurred in and about such action, at trial on all appellate levels. Any sums not paid when due by a breaching party shall bear interest at the maximum lawful rate from the date due until paid. 16. Binding Effect. This Agreement shall be binding on the parties hereto, their successors and assigns, and all other persons claiming by, through, or under them. This Agreement shall not be assigned by any party hereto without the consent of the other parties hereto. 17. Interpretation. The Parties to this Agreement have all participated equally in the negotiation and preparation of this document, and the same shall not be more strictly construed against any one of them. 18. Duplicate Originals. This Agreement may be executed in any number of .duplicate originals and each duplicate original shall be deemed to be an original. 19. Applicable Law. This Agreement shall be governed by and construed according to the laws, from time to time in effect, of the State of Florida. 20. HeadinLys. The article, section, and subsection entitlements of this Agreement are inserted for convenience of reference only and shall in no way alter, modify, or define, or be used in construing, the text of such articles, sections, or subsections. 21. Amendment and Waiver. This Agreement contains the entire agreement between the parties with respect to the Environmental Remediation. The provisions of this Agreement may be amended or waived only by an instrument in writing signed by both the Museums and the City. No waiver of any provision of this Agreement shall be effective unless it is in writing, signed by the party against whom it is asserted and any such written waiver shall only be applicable to the specific instance to which it related and shall not be deemed to be a continuing or future waiver. 22. Waiver of Jury Trial. THE MUSEUMS AND THE CITY HEREBY VOLUNTARILY, KNOWINGLY, AND INTENTIONALLY WAIVE ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT. 10 23. No Third Party Beneficiary. Nothing expressed or implied herein is intended to or shall be construed to confer upon or give any person, firm or corporation other than the parties hereto any rights, remedies, obligations or liabilities under or by reason of this Agreement or result in their being deemed a third party beneficiary of this Agreement. [SIGNATURES APPEAR ON FOLLOWING PAGE] 11 o ° , ATTEST: As to the City: THE By: " y: riscilla A. Thompson '2 --Id ,aPedro G. Her City Clerk" ity Manager APPROVED AS TO FORM AND CORRECTNESS: APPROVED By:—By Julie 0� ru o City Attorney ,A WITNESSES: As to MSM: AMI, a municipal State of Florida CE Management MUSEUM OF SCIENCE, INC., a Florida not-for-profit corporation Dames � By: 3 �'rint ame: NaraO Gillian Thomas ✓ Title: President Print Name: As to MAM: WITNESSES MIAMI ART MUSEUM OF DADE COUNTY ASSOCIATION, INC., a Florida not-for-profit corporation Print Na ne: }�,N � � .� /Yl A -w 0 B.y: Print Name: C R0114WD Title: f KvIrrM5 12 5/21/2009 ENN%IRONMENTAL REMEDIATION AGREE)IENT THIS ENVT�ONT\IENTALRE-MEDIATION AGREEMENT (the "Agreement") is made as of this _day May, 2009, by and among (i) the Miaini Art 'Museum of Dade County Association, Inc., a Florida not-for-profit corporation ("MA,M"). (ii) Museum of Science. Inc., a Florida not-for-profit AToration ("MSM)"; l\4M and MSM are collectively referred to herein as the "Museums"), and (,N ii) the City of Miami, a municipal corporation of the State of Florida (the "City"). WITNESSETH: WHEREAS, Miami -Dad' County, the City, the Miami Sports and Exhibition Authority, MAM, MSM, and the HistoricAssociation of South Florida, Inc. have entered into the Memorandum of Understanding a�cuted on September 12, 2008 Concerning the Development, Design, Construction and Operation f the Museum Park Project (the "MOU") on land located in the Greater Miami downtown area, _ , wn as both"Bicentennial Park" and "Museum Park"; and WHEREAS, pursuant to the MO , on December 11, 2008, the City Commission adopted Resolution No. 08- 0707, approving the ts of, and authorizing the City Manager to execute a lease agreement between the City and (as amended, modified, restated, extended and supplemented from time to time, the " Lease"), and a lease agreement between the City and MSM (as amended, modified, restated, tended and supplemented from time to time, the "MSM Lease"), for the development and oper tion of the Museum Component of the Museum Park Project in Museum Park (collectively, the " eases"); and WHEREAS, the Leases provide that the xecution of an Environmental Remediation Agreement is a condition precedent to the posses 'on date under the Leases and failure to execute the Environmental Remediation Agreement 'thin 1 year from the effective date of the Leases may result in the termination of the Leases; and WHEREAS, the City, MAM and MSM have nego 'ated this Environmental Remediation Agreement which, consistent with the terms of the Leases nd the MOU, provides for, among other things, (i) the City's obligation to contribute up t$2 million toward the cost of environmental remediation of the property covered by the L ases, as amended (the "Subject Pro e '), and (ii) the right of the Museums to terminate theeases by June 9, 2009, if the expected cost of remediation exceeds $2 million and the Mu eums elect to not fund the deficiency, and WHEREAS, sampling conducted by environmental consult s for the Museums has indicated the presence on the Subject Property of contaminants o concern in excess of established soil and ground water clean-up target levels as set forth in Chapter 62-777, Fla. Admin. Code (the "Contamination," as further defined below); and WHEREAS, the City has agreed in the MOU to pay up to $2 million t wards the cost of remediation "necessary to provide a clean site necessary for the Museums t, construct their facilities." WM4 823"0 c2 M NON'S', THEREFORE, in consideration of the mutual covenants algid agreements contained in this Agreement, and for other good and valuable consideration, ie receipt and sufficiency of which is hereby acknowledged, the ? 4useurns and the City hereby agree as follows: Recitals. The foregoing recitals are true and correct and are incotaninas rated herein by reference. Capitalized terms used herein without definition shall have the t given to them in the Leases. Definitions. (a) "Contamination" shall mean the presence of p llutants and hazardous substances in the soil and ground water in excess of federal, st te, or county applicable standards or cleanup target levels, including but not limited t � Ground Water Cleanup Target Levels and Soil Cleanup Target Levels as set forth in C apter 62-777, Fla. Admin. Code. (b) "Environmental Cost" shall mean the actual /ost to perform and complete the Environmental Remediation with respect to te Subject Property only. "Environmental Cost" shall not include any costs or fees ir}curred by legal counsel for the Museums or the City. J (c) "Environmental Cap" shall mean, for pu , oses of this Agreement only, the $2 million limit on the portion of the Environmental qosts that the City is obligated to pay for Environmental Remediation pursuant to this Adreement or the Leases. (d) "Environmental Remediation" shall ' clude all actions necessary to provide a clean site necessary for the Museums to construct their facilities, including without limitation any additional work required to delineate the extent of any Contamination beyond the work performed fo the Museums as part of their environmental due diligence. Environmental Rerr ediation shall also include all work required to address any Contamination pursuant to rhapters 62-770, 780, or 785, Florida Administrative Code, or Chapter 24, Miami -Dade qounty Code, including, but not limited to, preparation of a Site Assessment Report and/ r Remedial Action Plan (the "Plan"). Notwithstanding the foregoing, nothing in this d 'tion shall obligate the City to incur expenses or pay costs in excess of the Environme . tal Cap. (e) "Governmental Authority" shall ean any federal, state, county, or local governmental agency asserting jurisdiction ove the Environmental Remediation. (f) "No Further Action" shallm an a no further action determination as provided for and in conformance with Rule 6 -780.680, Fla. Admin. Code, either without Conditions or with Conditions. Due Dili ence Cost Estimate and Eleeti to Proceed (a) The Museums have proc ed Phase I and Phase Il Environmental Site Assessments prepared by EE&G Enviro ental Services, LLC ("EE&G") as part of the Museums' envirom ental due diligence, which were delivered to the City on April 9, {M2814247;1} WAMI 823440 (2P - 2009. The Phase II Environmental Site Assessment contains EE&G's findings with respect to the current environmental condition of the Subject Property and reconuTa nded actions to perforin the Environmental Remediation with respect to the Subject PropdKty. (b) On March 11, 2009. the Museums delivered to the City the cost esti nate for the Environmental Remediation with respect to the Subject Property (the '/Cost Estimate"). Because the Cost Estimate exceeds $2 million, the Museums shall ave a period of ninety (90) days from delivery of the Cost Estimate to the City to agree}"ow to apportion pa}nnent of the Environmental Cost in excess of 52,000,000 among thi�e`ums hselves and to advise the City in writing pursuant to paragraph 14 herein that they tend to proceed with the Museum Park Project (the "Election to Proceed"). If the M do not reach an agreement allocating responsibility for the Environmental Cost i�excess of $2,000,000 among themselves and do not provide the Election to Proceed wi hin said 90- day period, then this Agreement shall be null and void and of no further forc,and effect. (c) If the Museums provide the Election to Proceed, the M 'seums shall be deemed to covenant and represent that they will be financially respons, blc and hold the City harmless for any and all of the Environmental Cost in Excess of Aie Environmental Cap until the Environmental Remediation at the Subject Property ' deemed complete pursuant to paragraph 5 of this Agreement herein. At the same t' e they provide the Election to Proceed, the Museums shall provide the City with wti en evidence that they have the financial ability to pay any and all Environmental Cost in excess of the Environmental Cap. Environmental Remediation. (a) By no later than July 1, 2009, the City s fall engage an environmental consultant reasonably acceptable to the Museums (the " consultant") to prepare a draft Plan that includes the Subject Property. The Museums and the City shall work jointly to support the Consultant's development of a Plan thati consistent with the intent of the MOU and reasonably acceptable to all Parties. (b) The City shall have final decision-making authority with respect to approval of the Plan, consistent with Section 19 of this Agreement. Nothing in this Agreement shall divest or abrogate the City's ''Wit to final approval of the Plan which approval shall not be unreasonably withheld, ' t the event the Museums elect to proceed under Sections 4(c) or 9(b) of this Agreem t. The City shall use its best efforts to prepare and submit the Plan to the GgEmental Authorities by no later than Septemberl, 2009. The City shall manage the Consultant's efforts to obtain all necessary approvals by Governmental Authorities, ' eluding approval of the Plan. With respect to the Subject Property, the City shall us its best efforts to obtain approval of the Plan by November 30, 2009. Once commene d, the City shall diligently proceed to perform the Plan to completion. 7 (c) At their sole dis 6tion, the Museums may perform the work authorized by the Plan with respect to the S liject Property provided that they notify the City in writing pursuant to paragraph 14 he bin of their intent to do so within fifteen (15) calendar days of the Museums' receipt 97DERM's approval of the Plan. Otherwise, the City shall {M2814247;1) i MIAMI 823440 (2K) - -3 manage the Consultant's performance of the Enviromilental Remediation. If the Museums elect to perfonn the work authorized by the Plan with respect to the Subject Property, they shall engage and manage an enviromnental consultant reasonably acceptable to the City ("the Museums' Consultant.") j (d) The agreements with the Consultant and. if applicable. the Mus I ins' Consultant (together, as may be the case, the "Parties' Consultants"), shall provide that the Environmental Remediation shall be conducted in a good and Nvorkman-like i/aimer, consistent with good practices and standards of the enviromnental remediation in • ustry in Miami -Dade County, Florida, and in accordance with Applicable Laws, and/shall be initiated and completed as expeditiously as possible, consistent with the terms of this Agreement. The agreements shall also include indemnifications in favor of the City and the Museums and shall name the Museums and the City as additional insureds, providing scope and amounts of coverage mutually acceptable to the Museums and rhe City. Such policy shall remain in effect until the completion of the Environmental Remediation as defined in Section 5 of this Agreement. Prior to conducting ary Environmental Remediation, the Parties' Consultants shall furnish the Museums:'and the City with certificates of insurance, reasonably acceptable to the Museums and the City. Completion of the Environmental Remediation. The Enviror�nental Remediation with respect to the Subject Property shall be deemed to be completed atfjthe earliest of any of the following: (a) Any Governmental Authority with juris detion over the Environmental Remediation has issued one or more No Further A tions) without Conditions that includes the entirety of the Subject Property; or (b) Any Governmental Authority with jLrisdiction over the Environmental Remediation has issued one or more No Further Aion(s) with Conditions that includes the entirety of the Subject Property, which Condit' ns, in the reasonable judgment of the Museums, shall not adversely affect the construe on of the Museums' Improvements (as defined in the Leases) as planned, including wi ut limitation the cost of construction, or the use of the Subject Property for operation f the Museums in accordance with the Leases, and any conditions to the No F er Action have been completed to the Governmental Authority's satisfaction, exce t for conditions to the No Further Action which by their nature are continuous or ong ing for the entire duration of the No Further Action, such as a requirement to maintain ; impervious cap. 1. Compliance with No Further tion. The City and the Museums, to the extent applicable, shall comply with any conditionof the No Further Action, except that for the Subject Property only, (a) once the Envi nmental Cap has been exceeded, any cost of compliance with affirmative obligations un r the No Further Action(s) shall not be at the City's expense, and (b) neither the City nor the useums shall modify the terms of the No Further Action(s) without the written consent of tlf other party. 2. Site Access. If the useums do not elect to perform the Environmental Remediation of the Subject Property p suant to this Agreement, the Museums shall provide the City and the City's Consultant unimpgd ed access to the Subject Property. {M2814247;11 MIAMI 823440 (2K) -4- 3. Communications. (a) The City shall cause the Consultant to report to the Museums and the City simultaneously on the progress of the preparation, submittal and approval of the Pl iii, and the progress and performance of the Environmental Remediation at least mon lily (the "Monthly Fi.n,iroiunental Remediation Status Report"). (b) For purposes of Section 8 only, the City and the Museums shall l'within five (5) Business Days following the executive of this Agreement, identify in w ting one technical representative each to act as their environmental represent"tives (the "Designated Enviromnental Representatives") to transmit and receive all noti4es required under Section 8. In the event that the Designated Environmental Representatives are unavailable (e.g., on vacation or leave), an alternative person should be designated to ensure that communications between the Museums and the City ontinue without interruption. (c) The City's Designated Environmental Representat kes shall provide or cause the Consultant to provide the Museums' Designated Environ ental Representative with reasonable advance notice of any proposed meeting or tel hone conference with Governmental Authorities concerning the Contamination or the Environmental Remediation so the Museums' representatives have theo portunity to attend and participate in such meeting or telephone conference. (d) The City's Designated Environmental R cause the Consultant to provide the Museums' Representatives with copies of all correspondence with concerning the Contamination, the Environmental ReFito e the Contamination or Environmental Remediation prp Said correspondence shall include but not be limit enclosures transmitted by email, reports, plans, dor enor discs (herein after "Environmental Corresnondert e"). e fesentative shall provide or Designated Environmental any Governmental Authorities diation, or approvals related to tly upon receipt or transmittal. any letters, email, electronic ts, tables, graphs, photographs, (e) Prior to submission to any, G wermnental Authority, the Museums' Designated Environmental Representative shal be provided with, for their review and comment, a draft of any Environmental Corre pondence required to be submitted to any Governmental Authority for its approval d/or consent. Except as required by Environmental Law, the Museums' Design ed Environmental Representative shall have five (5) Business Days to review any dra materials and transmit their comments to the City's Designated Environmental Repre entative. Neither the Consultant nor the City may finalize any draft materials until t e earlier of either the lapse of the 5 -day review period or the transmittal in writing of e Museums' comments, which comments the City shall consider and incorporate in the' reasonable discretion. (f) If, pursuant toAgreement, the Museums elect to perform the Environmental Remediation of e Subject Property, the Museums shall have reciprocal obligations under this Section 8 o the City. {M2814247;1 } MIAMI 923440 (2K) -5` (g) IN, onvithstand in- Section S subparagraphs (a) tlurough (e) above, the 1\4useums shall have the right to conumunicate directly with the Miami -Dade County Department of Envirolumental Resources Management (-DER-1\4") on any matter related to the Environmental Remediation contemplated for the Subject Property until such time as they submit the Election to Proceed to the City (the "Preliminary DERM Communications"). Any Preliminary DERM Communications shall be made in cooperation with the City, including that the Museums will provide the City with final copies of all written materials submitted to DERM simultaneously with their submittal and shall provide the City with reasonable notice and opportunity to participate in any, teleconference and meeting that the Museums schedule with DERM or that DER�2 schedules with the Museums. (h) All expenses incurred by the Museums in connection with any Prelim�ir'lary DERM Communications, including but not limited to attorneys' and consultant fes and costs, shall be borne solely by the Museums and shall not constitute or other /, nse be deemed an Environmental Cost that the City is obligated to pay for EnvirA;ental Remediation pursuant to this Agreement or the Leases. / 4. Time is of the Essence. The Parties shall be responsibleforJthe diligent performance of their respective duties set forth herein. (a) No party shall be deemed to have violated this provision 9T the Agreement if the cause for delays is an Unavoidable Delay or otherwise beyond t e party's control, including without limitation delays occasioned by the acts or missions of any Governmental Authority. Except as expressly set forth herein, time is of the essence in completion of the Environmental Remediation. (b) In the event (i) the City fails to engage the Consul ant by July 1, 2009, (ii) the Museums reasonably believe that the City will not sub the Plan. to DERM by September 1, 2009, or, (iii) based on written comments' om DERM to the Plan submitted by the City, the Museums reasonably believe thatt ERM will not approve the Plan by November 30, 2009, and, in the case of (i), the fa}y'. ure or, in the case of (ii) and (iii), the reasonably likely failure to meet any of these deddline is not caused by any lack of cooperation on the part of the Museums, the Muse s may, within five (5) Business Days of the applicable deadline and provided that ritten notice is given to the City pursuant to paragraph Section 14 herein, elect at t t time to perforin the Environmental Remediation with respect to the Subject Propert (the "Early Remediation Assumption Notice"). Other than the costs associated with �e finalization or modification of the Plan by the Museums that would be duplicative of those costs already incurred by the City in preparation of the Plan, the City shall pay for the Environmental Cost as set forth in subparagraphs (b), (c), and (d) of Section of this Agreement from the date of the Early Remediation Assumption Notice, as may be applicable. By way of clarification, under no circumstances shall the amount paid b the City toward the Environmental Cost exceed the Environmental Cap, and the City's obligation, if any, to reimburse the Museums is governed accordingly. {M2814247;11 / MIAMI 823W (M -6- 5. Cooperation. Except as specifically set forth in this Agreement or in the event that the Museums elect to perforin the Environmental Remediation with respect to the Subject Property, and as otherwise required by law. the Museums covenant and agree that to the extent that it has conunents on the Envirornnental Remediation. it shall make such continents directly to the City and will not independently contact or meet with tli� Governmental Authority regarding the Emdronmental Remediation. The City sha'f , reasonably and in good faith, consider all continents offered by the Museums. The 1ty and the Museums covenant and agree that they will use their respective good faith e or to cooperate in connection �� A the timely and cost-effective performance o the Environmental Remediation, for both the Museum Park Parcel and the Subject Prq erty, including without limitation, development and implementation of a cost-effective Plan for the Museum Park Parcel and, consistent with Sections 2(d) and 5 of this A cement, the Subject Property (and any modification thereto that may become required/ y law or this Agreement or otherwise necessary), and the consideration of st-effective remediation solutions such as raising the elevation of the Museums' facilitie or the reuse of soil within Museum Park, and furtherance of the objectives of this Agree ent. 6. Brownfield Designation and Rehabilitation. (a) Nothing herein shall preclude the City from electinj to designate the Subject Property as a Brownfield Area and entering into a Brownfie � Site Rehabilitation Agreement ("BSRA"), as those teens are defined in and proce ses provided by the Brownfields Redevelopment Act, §§ 376.77 - 376.85, Florida St totes, and seeking one or more Voluntary Cleanup Tax Credit ("VCTC") certificlason ts ursuant to Chapter 62- 788, Fla. Admin. Code unless such actions conflict with Agreement or any other agreements between the City and Museums. In no eveall the City's efforts to designate the Subject Property as a Brownfield Area be a or excuse for delay in the performance and completion of the Environmental Raj ediation or cause a delay in the commencement of construction. / (b) if the City so elects, the Museums a ee to cooperate in the efforts to designate the Subject Property as a Brownfield Are enter into a BSRA, and obtain one or more VCTC certificates, except that the Mus s shall not be required to expend funds to do so or delay performance of the Enviro;IQntal Remediation for same. (c) All provisions of this Agreem iit relating to the City's obligations with respect to the Environmental Remediation apply to any actions the City may take under a BSRA relating to the Subject Property di g the terms of the Leases, The terms of a BSRA with respect to the Subject Propeq. shall not lessen or alter the City's obligations to perform the Environmental Remedi 71ion with respect to the Subject Property under this Agreement. To the extent that th terms of a BSRA relating to the Subject Property conflict with the terms of this Agree d ent, the terms of this Agreement shall govern. (d) Costs incurred in qnnection with the City's efforts to seek designation of the Subject Property as a Br-wnfield Area shall not be considered part of the Environmental Cost. (M2814247;1) tuJrE$Z 409TQ -7- 7. Payment of the EnN-ironmental Cost. (a) The Consultant shall provide estimates as needed for its «'ork on the Envirolunental Remediation with respect to the Subject Property to the City and the Museums. The City and the Museums shall review the estimates and note any objections to the estimates in writing witlun ten (10) days of receipt. Failure to object within the time allotted shall constitute approval of the estimates. (b) The Consultant shall from time to time, but no more frequently than monthly; submit a detailed 'invoice or reimbursement request to the City and the Museums for the Enviromnental Cost authorized by this Agreement, along with reasonable substantiating documentation as requested by the City and/or the Museum�. and such other evidence as the City and/or the Museums may request to doeumeilt verified compliance with the terms of the Consultant's agreement (by way of examl5le, compliance with the insurance requirements) (collectively, a "Disbursement Request"), Unless the City or the Museums object to the Disbursement Request within to " (10) Business Days of receipt, the Disbursement Request shall be deemed approved d the City shall pay same in accordance with the Consultant's agreement no later thdn thirty (30) days within receipt of all properly documented invoices. Neither the City, nor any Museum shall be permitted to object to a Disbursement Request unless it seasonably believes that the invoices and/or supporting documentation included in the D sbursement Request does not evidence a proper disbursement or a proper allocation the Subject Property under this Agreement. If any Party gives timely written notice o its objections, (i) the City shall pay the portion (if any) of the Disbursement Request to hich there was no objection, and (ii) the Consultant, City and Museums shall e commercially reasonable and good faith efforts to resolve the objections regarding the disputed portion of the Disbursement. (c) If the Museums elect to perform the Environmen 1 Remediation of the Subject Property, the Museums shall be entitled to reimburseme t from the City of each Disbursement Request paid by the Museums hereunder, subct to the terms hereof, including the provisions of Section 12(b) above. The City hall make payment within thirty (30) days after the date the City receives a "reimb sement request" from the Museums, which shall consist of a copy of the Disbursement Request for which the Museums seek reimbursement and evidence of the Museums' payment of same (such as cancelled checks or paid invoices). (d) The Museums shall be entitled to rbursement from the City for the actual costs invoiced by EE&G and paid for by the useums (the "EE&G Costs") for the combined Phase I and Phase II Environmental Si Assessments dated April 6, 2009. In consideration for reimbursing EE&G Costs to Museums, the Museums shall authorize EE&G to issue a Right of Reliance Letter in fa/,or of the City, which letter shall expressly state that the City may use any and all data 6m the EE&G Reports as may be necessary in connection with Site Rehabilitation at useum Park (the "EE&G Right of Reliance Letter"). The City shall make reimbur ement to the Museums consistent with this paragraph no later than thirty (30) day. after receipt of the EE&G Right of Reliance {M2814247;1) WAM 823440 (2x) -8- Letter. All monies paid to the Museums pursuant to this paragraph shall be included in the definition of Envirolunental Costs and subject to the Envirolunental Cap. (e) If at any time it appeals that the Environmental Cost associated with Remediation at the Subject Property will exceed the Envirolunental Cap, the City shall only be required to, as may be applicable; pay or reimburse the Museums for any invoice by the ratio of the Envirolunental Cap to the Enviromnental Cost, with the numerator being the Envirolurlental Cap and the denominator being the Environmental Cost. By way of example, if the total anticipated Emdroarlental Cost is S5 million, then the City shall be required to pay two-fifths of every disbursement request up to the Environmental Cap. Under no circumstances shall the amount paid by the City toward the Environmental Cost exceed the Environmental Cap, and the City's obligation, if any, to ID reimburse the Museums is governed accordingly. f 8. Indemnification and Allocation of Liability. Article VIII of each of the Vases contains certain provisions regarding indemnification and allocation of responsibi0y for Hazardous Materials and other environmental conditions before and after the Possession Date under the Leases. Such provisions are incorporated by reference into this Agreem6nt. In the event of any conflict between the terms of this Agreement and Article VIII of theo` Leases, the provisions of Article VIII of the Leases shall govern. 9. Notices. All notices or other communications required or permitted to be given under this Agreement shall be given to the parties and become effectivel'a0 provided in this Agreement as follows: If to the City: City of Miami Miami Riverside Building, 10th Floor 444 S.W. 2nd Avenue Miami, Florida 33130 Attn: City Manager with a copy to: and: {M2814247;1) MAN 923440 = Office of the City Attorney City of Miami 444 S.W. 2nd Avenue, 9d' F. Miami, Florida 33130 / Attn: City Attorney Michael R. Goldsterl, Esq. Akerman Sentet 25a' Floor One Southeast' ' d Avenue Miami, Florida 33131 0 To MA M: Miami Art Museum of Dade County Association, Inc. 101 F1agler Street Miami. Florida 33130 Attn: Director To MOS: Museum of Science. Inc. 3280 South Miami Avenue Miami, Florida 33129 Attn: President 10. Remedies. In the event of a breach of this Agreement; then in addition to any specific rights and remedies provided for under the terns hereof the non -breaching party shall have all remedies available in equity and at law for the redress of such default, including without limitation (i) an action for damages, (ii) an action for temporary and/or permanent injunction, (iii) an action for specific performance of the terms, conditions and obligations�pf this Agreement, and (iv) any combination of the foregoing. In the event any action is brdught to enforce the terms, conditions and obligations of this Agreement, the prevailing party i any such action shall be entitled to the recovery of costs and disbursements of such action as well as reasonable attorney's fees incurred in and about such action, at trial on all appellat levels. Any sums not paid when due by a breaching party shall bear interest at the maximum 14ful rate from the date due until paid. / 11. Bindine Effect. This Agreement shall be binding on the p dies hereto, their successors and assigns, and all other persons claiming by, through, or under them. This Agreement shall not be assigned by any party hereto without the corse , of the other parties hereto. 12. Interpretation. The Parties to this Agreement have all articipated equally in the negotiation and preparation of this document, and the same shall nqt be more strictly construed against any one of them. 13. Duplicate Orisinals. This Agreement maybe executed in any number of duplicate originals and each duplicate original shall be deemgd to be an original. 14. Applicable Law. This Agreement shall P6 governed by and construed according to the laws, from time to time in effect, of the State of Florida. 15. Headings. The article, section, an6ubsection entitlements of this Agreement are inserted for convenience of reference only and/ Shall in no way alter, modify, or define, or be used in construing, the text of such articles, seq�ions, or subsections. 16. Amendment and between the parties with respect Agreement may be amended or Museums and the City. No waiver is in writing, signed by the party only be applicable to the specific/ continuing or future waiver. (M2814247;1) MAK 823440 (2K) Waiver This Agreement contains the entire agreement to th Environmental Remediation. The provisions of this waiv d only by an instrument in writing signed by both the many provision of this Agreement shall be effective unless it ast whom it is asserted and any such written waiver shall instance to which it related and shall not be deemed to be a -10- 17. Walver of Jury Trial, THE Mt:,SEU?\2S AIN --D THE CITY HEREBY VOLLTiTARILY, KNOWINGLY, AND INTE'�TTIONALLY NAIVE A"Z' AND ALL RIGHTS TO TRIAL BY JURY IN AWTI LEGAL ACTION OR PROCEEDI'�Ci ARISING UNDER OR PNT COINTECTION WITH THIS AGREEMENT. 18. No Third Party Beneficiary. expressed or implied herein is intended to or shall be construed to confer upon or g ve any person; firm or corporation other than the parties hereto any rights, remedies; obligations or liabilities under or by reason of this agreement or result in their being, deemed a third party beneficiary of this Agreement. [SIGNATURES APPEAR ON FOLLOWING PAGE] {M2814247;1 } As to the City: ATTEST: THE CITY OF 1t1I_A-'17I. a municipal corporation of the State of Florida By: Priscilla A. Thompson City Clerk APPROVED AS TO FORM AND CORRECTNESS: By: Julie O. Bru City Attorney WITNESSES: Print Name: Print Name: WITNESSES Print Name: Print Name: (M2814247;1) MIAMI 823M (219 By: Pedro G. Hernandez City Manager APPROVED AS TO I NSURAN REQUIREMENTS: By: LeeAnn Brehm, Risk Administrator As to MSM: MUSEUM OF S not-for-profit co By: Name: Title: 1 L;��kv/141 �1 Thomas INC., a Florida ZIY ART MUSEUM OF D.A-DE ASSOCIATION, INC., a Florida for-profit corporation By: Name: Title: -12-