HomeMy WebLinkAboutExhibit 1REVENUE SHARING AGREEMENT
This Revenue Sharing Agreement ("Agreement") is entered into effective as of the _day
of November, 2012 ("Effective Date") between the Miami Children's Museum, Inc., a Florida
not -for -profit corporation ("MCM") and the City of Miami, a municipal corporation of the State
of Florida ("City"), with the consent of Worldwide Amherst Media, LLC, a Delaware limited
liability company ("WAM").
RECITALS:
WHEREAS, on November 2, 2001, the City and the Miami Sports and Exhibition
Authority, an independent and autonomous agency and instrumentality of the City of Miami
("MSEA") entered into a Interlocal Agreement which leased to MSEA a portion of Watson
Island for the development of the Miami Children's Museum project ("Interlocal Agreement");
and
WHEREAS, on November 2, 2001, MSEA and MCM entered into a Sublease
Agreement, for the leasing of a portion of Watson Island, for the development of a world class
children's museum and other related facilities and improvements ("Sublease"); and
WHEREAS, MCM constructed, operates and maintains the children's museum located
on Watson Island at 980 McCarthur Causeway, Miami, FL ("Property"); and
WHEREAS, the City regulates Outdoor Advertising Signs in accordance with City
Ordinance 13321 of the City of Miami Code of Ordinances, as amended ("City Code"); and
WHEREAS, MCM and WAM have entered into a License Agreement, as may be
amended from time to time, in accordance with Article XV of the Sublease, for the installation
and operation of outdoor advertising signs at the Property in order to help the financial viability
of MCM's operation and programs ("License Agreement"); and
WHEREAS, In accordance with the Sublease, MCM is authorized to enter into the
License Agreement without MSEA's consent; and
WHEREAS, MCM is desirous of entering into this Agreement in order to help the
financial viability of other City wide initiatives and/or programs with the consent of WAM.
NOW, THEREFORE, in consideration of the foregoing and of the mutual promises
hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the parties, hereby agree as follows:
1. Term. This Agreement shall remain in full force and effect and run concurrently
with the term of the License Agreement by between MCM and WAM, its successors or assigns.
Furthermore, the term of this Agreement is subject to the Sublease and Interlocal Agreement
Term provisions, as may be applicable.
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Revenue Sharing Agreement
2. Permit Fee Payments and Revenue Share. During the Term of this Agreement,
MCM shall pay to the City:
(i) Revenue Share. In accordance with the License Agreement and the terms of this
Agreement, MCM shall pay to the City, twenty percent (20%) of the Gross Receipts
generated from the MCM Advertising Signs ("Sign Revenue"), inclusive of the Permit
Fees. In accordance with City Ordinance 13321, the City shall receive approximately two
hundred and fifty-two thousand dollars ($252,000) in Permit Fees for the two proposed
signs at the Property ("MCM Advertising Signs"), as illustrated in attached Exhibit "A".
MCM shall make the Sign Revenue payments within ten (10) days of receipt by MCM ,
and shall provide copies of all reports and logs evidencing the method of calculation of
such revenue.
3. Public Service Messages. MCM agrees to display Public Service Messages as
part of the museum signage, from time to time as requested by the City. The City shall notify
MCM fifteen (15) days prior to the Public Service Messages being displayed, except in the case
of Emergency/Advisory Messages, which are not subject to the time provisions described herein.
The City shall provide MCM with the required formatted media in order for the Public Service
Messages and/or Emergency/Advisory Messages to be displayed as scheduled. MCM shall not
be responsible for the creation, formatting, or design of the Public Service Messages. MCM and
the City shall coordinate the display time and schedule of when the Public Service Messages
and/or Emergency/Advisory Messages shall run on an case by case basis. The Public Service
Messages may run in coordination with other museum signage.
4. Audits and Log. During the Term of this Agreement, City may exercise the
same audit rights as those granted to MCM in the License Agreement, Sublease and Interlocal
Agreement.
5. Transaction Costs. Each party shall be responsible for the fees and expenses of
its legal counsel in connection with this Agreement, whether or not the transactions contemplated
hereby are consummated.
6. Waiver. The failure of any party hereto to insist upon strict performance of any
of the terms or provisions of this Agreement or to exercise any right contained in this Agreement
shall not be construed as a waiver of such term, provision, or right in the future. No waiver by
any party hereto of any term or provision of this Agreement shall be deemed to have been made
unless expressed in writing and signed by such party.
7. No Agency/Employment/Joint Venture. Nothing contained in this Agreement
shall be construed to constitute any party hereto as a partner, employee, joint venturer, or agent
of any other party hereto.
8. Applicable Law. This Agreement shall be construed under and shall be governed
by the laws of the State of Florida. All disputes arising out of or in connection with this
Agreement (including disputes concerning the existence and validity hereof), shall be resolved
by the courts in Miami -Dade County, Florida.
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Revenue Sharing Agreement
9. Construction. For the purpose of construing this Agreement, unless the context
indicates otherwise, words in the singular shall be deemed to include words in the plural, and
vice versa; words in one gender shall be deemed to include words in other genders, the word "or"
is not exclusive. Headings of Articles and Sections are inserted only for convenience and are
not, and shall not be deemed a limitation on the scope of the particular Articles or Sections to
which they refer. The word "including" (or other forms of the word "include") shall not be and
shall not be construed as being limiting.
10. Indemnity. MCM and WAM are subject to the Indemnity Provisions in the
Interlocal Agreement, Sublease and License Agreement. Specifically, WAM shall indemnify the
City, MSEA and all of their officers, employees and agents in the same manner as MCM is
required to do so pursuant to the Sublease.
11. Insurance. WAM shall be required to maintain the insurance coverage set forth
in Article XII of the Sublease and also name the City and MSEA as additional insured.
12. Bond. WAM shall be required to name the City as an additional payee under any
bonds related to the erection of the MCM Advertising Signs.
13. Remedies in Case of Default. In the event of a default by MCM in its payments
of the Sign Revenue to the City, the City shall have the right and authority to collect such Sign
Revenue directly from WAM, upon ten (10) business day's written notice to MCM and WAM.
If WAM is required to make payment of the Sign Revenue directly to the City, WAM shall be
required to make the payment with ten (10) business days after receipt of the City's notice.
14. Time is of the Essence. Time is of the essence as to the performance of the
provisions of this Agreement.
15. Notices. Unless otherwise provided herein, all notices or other communications
required or desired to be given with respect to this Agreement shall be in writing and shall be
delivered by hand or by registered or certified mail, return receipt requested, bearing adequate
postage and properly addressed as provided below. Each notice given by mail shall be deemed
to have been given by the sender when received or refused by the party hereto intended to
receive such notice; each notice delivered by hand or by courier service shall be deemed to have
been given and received when actually received by the party hereto intended to receive such
notice or when such party refuses to accept delivery of such notice. Upon a change of address by
any party hereto, such party shall give written notice of such change to the other party in
accordance with the foregoing. Inability to deliver because of changed address or status of
which no notice was given shall be deemed to be receipt of the notice sent, effective as of the
date such notice would otherwise have been received.
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Revenue Sharing Agreement
If to City:
If to MCM:
If to WAM:
City of Miami
Attn: City Manager
444 SW 2' Avenue, 10th Floor
Miami, FL 33131
With Copy to:
City of Miami
Attn: City Attorney
444 SW 2" Avenue, 9th Floor
Miami, FL 33131
Miami Children's Museum
Attn: Chief Executive Officer
980 McCarthur Causeway
Miami, FL 33131
Worldwide Amherst Media, LLC
Attn: Mr. Barry Rush
19 Beechwood Road
Summit, New Jersey 07901
With Copy to:
Greenberg Traurig
Attn: Lucia Dougherty
333 Avenue of the Americas, 44th Floor
Miami, FL 33131
16. Assignment; Successors and Assigns. WAM is allowed to make an assignment
or transfer of any interest described herein, in accordance with the provisions of the Interlocal
Agreement, Sublease and License Agreement, as may be applicable, after written consent of the
City Manager, whose consent may not be unreasonably withheld.
18. Counterparts. This Agreement may be executed in two (2) or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument.
19. Modification. This Agreement may not be modified except in writing signed by
authorized representatives of each of the parties hereto.
20. Entire Agreement. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior agreements between the
parties whether oral or in writing.
[SIGNATURE PAGE FOLLOWS]
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Revenue Sharing Agreement
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
MIAMI CHILDREN'S MUSEUM, a Florida not
for profit corporation.
ATTEST: By:
Jeff Berkowitz, Executive Director
THE CITY OF MIAMI, a municipal corporation
of the State of Florida
ATTEST:
By:
Dwight Danie, Interim City Clerk Johnny Martinez, City Manager
APPROVED AS TO FORM AND APPROVED AS TO INSURANCE
CORRECTNESS: REQUIREMENTS:
Julie O. Bru
City Attorney
Calvin Ellis
Risk Management Director
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Revenue Sharing Agreement
ATTEST:
CONSENT OF WAM
WORLDWIDE AMHERST MEDIA, LLC, a
Delaware limited liability company
By:
Mark Van Fossan, Managing Member
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Revenue Sharing Agreement
EXHIBIT A
WAM OUTDOOR ADVERTISING SIGN PROPOSAL TO MCM
A, West Face of MCM Property: Permit Fee $126,000
* Sign to be approved in accordance with Ordinance 13321 of the City Code,
B. East Face of MCM Property: Permit Fee $126,000
* Sign to be approved in accordance with Ordinance 13321 of the City Code,
Total Anticipated Permit Fees $252,000
REVENUE EXAMPLE
Sign Revenue Generated
$2,000,000
Total Sign Revenue due to City -- 20%
$ 400,000
Permit Fees Paid to City
$ 252,000
Additional amount due to City to equal total Sign
Revenue
$ 148,000
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