HomeMy WebLinkAboutBack-Up Agreement FRMANAGEMENT AND OPERATING AGREEMENT
BY AND BETWEEN
THE CITY OF MIAMI,
a municipal corporation of the State of Florida
and
MUSEUM PARK CONSERVANCY,
a Florida not -for -profit corporation
, 2015
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TABLE OF CONTENTS
Page
ARTICLE 1 DEFINED TERMS 2
1.01 Defined Terms 2
1.02 References 7
ARTICLE 2 TERM 8
ARTICLE 3 FUNDING 8
3.01 Capital Funding 8
3.02 Funding for Operations 9
ARTICLE 4 DESCRIPTION OF PARK COMPONENT IMPROVEMENTS 9
4.01 Ownership 9
4.02 Intent 10
4.03 Development Plan 10
4.04 Phased Development 10
ARTICLE 5 PARK IMPROVEMENTS 11
5.01 Development of Park Improvements. 11
5.02 The Site 11
5.03 Existing Environmental Reports 11
5.04 Scope of Environmental Due Diligence 11
5.05 Remediation/Mitigation Disclosed in the Environmental Due Diligence
Report 11
5.06 Site Conditions 12
5.07 Development Requirements 12
5.08 Access to Site 12
ARTICLE 6 DESIGN 13
6.01 Implementation of Master Plan 13
6.02 Engagement of Architect 13
6.03 Architectural Style 13
6.05 Amendment to Development Plan 13
6.05 Design Professionals 14
6.06 Design Documents 14
6.07 Use of Plans 15
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ARTICLE 7 CONSTRUCTION 15
7,01 Construction Administration 15
7.02 Construction Manager 17
7.03 General Contractor 18
7.04 Change Orders 19
7.05 Permitting 19
7.06 Procurement of Construction Materials 19
7.07 Construction. 19
7.08 Punch List 19
7.09 Warranties 20
7.10 Liens 20
ARTICLE 8 OPERATING SERVICES 20
8.01 During Transition Period 20
8.02 After Transition Period 20
8,03 General Standards For Maintenance 21
8.04 Programming and Operations. 22
8.05 Concessions 23
8.06 Drug Free Workplace 23
8.07 Compliance with Florida Statutes 255.60 .23
ARTICLE 9 APPROVALS AND CONSENTS 24
ARTICLE 10 INSURANCE 24
10.01 Insurance 24
10.02 General Insurance Provisions 25
10.03 Hold Harmless/Indemnity Relative to Construction & Design Professionals, 26
10,04 Hold I-Iarmless/Indemnity - General .26
ARTICLE 11 REPRESENTATIONS, WARRANTIES AND COVENANTS 27
11,01 City Representations, Warranties and Covenants 27
11,02 Conservancy Representations, Warranties and Covenants 27
11,03 Mutual Covenants, 28
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ARTICLE 12 DEFAULT 29
12.01 Conservancy Default 29
12.02 City Default 29
12.03 Force Majeure 30
12,04 Obligations, Rights and Remedies Cumulative 30
12,05 No Indirect Damages 30
ARTICLE 13 PARTY REPRESENTATIVES 30
13,01 Designation of City Representative 30
13,02 Designation of the Conservancy Representative 31
ARTICLE 14 MISCELLANEOUS PROVISIONS 32
14,01 Sovereign Rights 32
14.02 No Partnership or Joint Venture 32
14.03 Prevailing Laws and Venue 32
14.04 Waiver of Jury Trial 33
14.05 Notices 33
14.06 Titles of Articles and Sections 34
14,07 Counterparts 34
14,08 Successors and Assigns 34
14.09 Construction and Interpretation 34
14.10 Attorneys' Fees 34
14.11 Entire Agreement 35
14.12 Incorporation of Provisions of the Leases by Reference 35
14.13 Assignments 35
14.14 Severability 35
14,15 Nonrecourse Liability of the Conservancy Personnel 35
14.16 Non -Recourse Liability of City Personnel 35
14,17 Exculpation of The Conservancy 36
EXHIBIT "A" LEGAL DESCRIPTION OF MUSEUM PARK 38
EXHIBIT "B" LEGAL DESCRIPTION OF PARK COMPONENT 39
EXHIBIT "C" DESCRIPTION OF EXISTING FACILITIES 40
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EXHIBIT "D" DESCRIPTION OF EXISTING FACILITIES 41
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MANAGEMENT AND OPERATING AGREEMENT
MUSEUM PARK
This Management and Operating Agreement (the "Agreement") is made and entered into
this day of , 2015 by and between the City of Miami, a municipal corporation of the
State of Florida (the "City") and Museum Park Conservancy, Inc., a Florida not -for -profit
corporation (the "Conservancy"). The City and the Conservancy constitute the "Parties".
RECITALS
A. WHEREAS, the City owns a parcel of land
as "Museum Park", for which the legal description of t
to this Agreement; and
B. WHEREAS, Museum Park is an
active, premier destination park, free and ope
provements commonly known
is set forth on Exhibit A attached
ith the pots
e public; and
C. WHEREAS, the City intends toe Mus
managed as a state-of-the-art park fo the benefit d
space, waterfront views and the ameni s and programs
D. WHEREAS, it is conte
future site, structures and appurtenances
E. WHE,
of such a park create.
F. WHEREA
programrl
indepej
Code fq
residents" a
G.
members of its
Incorporation; and
yf`not-fo ` t
cure the ben
visitors; and
party
core
.4of th
lity to fn,
es to the
*the City
k; an
to be transformed into an
xn Park to esigned, built and
F'dents and vis to enjoy green
signature urban park; and
d
continue to own the current and
and'iong term operating expenses
ices of t'ity;
esires t the design, construction, management
us et flPark be handled by the Conservancy as an
tion quads a c� Section 501(c)(3) of the Internal Revenue
natory pailfor present and future generations of Miami
ty Mayor and City Commission will appoint a portion of the
etors in accordance with the Conservancy's Articles of
H. WHEREA City Mayor and City Commission desire to obtain the benefit of
professional management services from the Conservancy in connection with the design,
construction, management, programming and fundraising for, Museum Park; and
I. WHEREAS, the Conservancy, through its directors, executives, staff, and
relationships with other organizations has expertise in fundraising and may enlist that experience
and resources, including the fundraising resources of The Friends of Museum Park, a Florida
not -for -profit corporation; and
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J. WHEREAS, the Conservancy intends to consult and co-operate with Bayfront
Park Management Trust with respect to the transitional and long term programming, operation
and vision for the Park Component so that the various elements under the jurisdiction of either
entity will be operated efficiently and for the enhanced enjoyment of the residents of Miami; and
K. WHEREAS, the City has entered into that certain Development Agreement for
Museum Park Project dated July 9, 2009 between the City, Museum of Sciences, Inc., a Florida
not -for -profit corporation and Miami Art Museum of Dade County Association, Inc., a Florida
not -for -profit corporation (the "Museum Development Agreement") for the development of the
"MAM Museum" and "MSM Museum" (as those terms are fined therein) within Museum
Park, which developments been substantially completed - which Museum Development
Agreement contemplated the subsequent development `' "Park Components" of Museum
Park; and
L. WHEREAS, the City and the Cori;
the purpose of effecting the development of
Components with the MSM Museum and
enhance the enjoyment by the public of this civic
racy desire
ark Components;
Museum portions
et.
NOW, THEREFORE, for a consideratib
contained in this Agreement, the Cit
1.01 Define
Agreement, the following
meaningslow.
reement" ni
acknow1e4 , agree and a
possessory ii est in the Pi
Museum park ned by the
that are not expre specified
City from the Preis s the
reaffirm they do not halt
th
ses
does
Conserver
DEF
dition to
used in tl
ter into this Agreement for
to harmonize the Park
useum Park and to
e mutual promise 'and conditions
ree as follows:
other definitions contained elsewhere in this
greement and its attachments, shall have the
gement ah Operating Agreement. ". The parties expressly
s Agreement does not transfer any leasehold estate or
g any leasehold interest in subject Premises ( e.g.
of confer a right to use the Premises for any purposes
ein; and does not convey or transfer any right to exclude the
servancy is not a tenant and the City and the Conservancy
n the future a Landlord/ Tenant relationship.
"Applicable Law" means any applicable law, statute, code, ordinance, administrative
order, implementing order, charter, resolution, order, rule, regulation, judgment, decree, writ,
injunction, franchise, approval, consent, permit or license, of any Governmental Authority, now
existing or hereafter enacted, adopted, promulgated, entered, or issued.
"Architect Contract" means one or more contracts between the Conservancy and the
Architect providing the landscaping, architectural and engineering services for the Park
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Improvements. The Architect shall be certified under 481.219, Florida Statutes to practice
Architecture .
"Architect" means the Landscape Architect and the Improvements Architect, or both as
context may require, or the sole architect if the same firm is used for the design of both
landscaping and other Park Improvements, The Landscape Architect shall be certified under
481,319, Florida Statutes to practice Landscape Architecture,
"Bayfront Park Management Trust" means Bayfront Park Management Trust, a limited
agency of the Miami City Commission.
"Business Day" means any day other than a Satur
Miami -Dade County. If any time period set forth in thi
Business Day, such period shall be extended to and t
"Certificate of Occupancy" means a
Authority permitting public occupancy and u
"Change Order" means a written instr
Construction Manager authorizing a age in the sd
contract price and/or the date of Su r Completio
may be.
unday or legal or bank holiday in
ent expires on a day other than a
then t succeeding Business Day.
*ate issued brelevant Governmental
"the Park Improveme
"City" shall mea
Dade County, Florid
terms of an express
City Commission.
"Comm
applicable Phase
physical construction
eXity of Mi
ithout fu
pproval
by the vancy and the
-ork, the ConstruC= n Management
the Park Improvements, as the case
nicipalrporation located in Miami-
o del ' ation in this Agreement in
ment U = me action shall mean the Miami
ection 13,01.
uction" means a permit needed to begin construction of the
rovements has been issued and the Conservancy has begun
of the Park Improvements.
"Commission" mean he Board of Commissioners of the City of Miami.
"Conservancy" means Museum Park Conservancy, a Florida not -for -profit corporation
and its permitted successors and assigns. The Conservancy is one of the Parties to this
Agreement.
"Conservancy Default" is defined in Section 12.01.
"Conservancy Personnel" is defined in Section 14.15.
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"Conservancy Representative" is defined in Section 13,02,
"Concessions" is defined in Section 8,05.
"Construction Documents" means the architectural drawings, specifications and other
documents, as may be amended from time to time in accordance with this Agreement, setting
forth the design of the Park Improvements and the requirements for their respective construction
in sufficient detail for the permitting and construction of the Park Improvements,
"Construction Management Contract" means one
Conservancy (as "Owner") and the Construction Manager(s)
and/or general contracting services for the Park Improver
"Construction Manager" means an entity orleri
as the construction manager or general contractor
general contracting services with regard to the
a more contracts between the
ding construction management
provide co.
uction of the Pi
"Construction Schedule" means any ofr he cons
(or portions of the Work) to be prepared by
requirements of the Construction,; anagement Co
accordance with Section 7,05. A n Schedul`
Project Schedule adapted to a relevant hase of t
"Contractor " e F the contra
Conservancy and the . t ctor or as
Construction manager 1 irm. The ntractor s all certifie
engage in contracting.
Docum
"De lt? cans a
"Desi
the Architect or
design and design"-
Design Professionals
requirements for certifica
ofessionalsi'�
Conservanc
ted eng
by the Conservancy to serve
r\uction management and/or
Iiprovements.
truct n schedul relating to the Work
o tion Manager pursuant to the
s such schedulesfare updated in
y consist of a portion of the Master
ork,
ore contracts between the
it d Firm or as part of the
der 481.119 , Florida Statutes to
cy Default,
e most rent from time to time) of the Schematic Design
ans thechitect and the engineers and consultants retained by
s the case may be, from time to time to provide architectural,
ring services for the Park Improvements, In the event the
sign Build Firm the Design Build Firm shall comply with the
er applicable Florida Statutes
"Development Plan" is defined in Section 4,03,
"Development Requirements" is defined in Section 5,08,
"Development Services" means the services rendered by the Conservancy under this
Agreement in connection with the design and construction of the Park Improvements and the
capital funding for the Park Improvements.
"Effective Date" shall mean the date on which the City executes this Agreement.
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"Engineer" means one or more contracts between the Conservancy and an Engineer to
provide Engineering Services, The Engineer shall be certified under 471.023, Florida Statutes
"Environmental Conditions" means any environmental pollution, flammable materials,
explosives, radioactive materials, infectious waste, hazardous materials, hazardous wastes,
hazardous or toxic substances, or environmental contaminants which are or become defined
under any Applicable Law including, without limitation, the following statutes or ordinances and
the regulations promulgated under their authority: (a) the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. §§ 9601 et seq.); (b)
the Hazardous Materials Transportation Act, as amended (49 U C. §§ 1801 et seq.); and (c) the
Resource Conservation and Recovery Act of 1976, as ame U.S.C. §§ 6901 et seq.); (d)
Florida Resource Recovery and
Pollutant Spill Prevention and
defined as "petroleum" or
nt, or hazardous substance
astes as defined in Fla.
of the Miami -Dade
the Water Pollution Control Act (33 U.S.C. § 1317);
Management Act, Florida Statutes § 403.702-403.78
Control Act, Florida Statutes § § 376.011-376.21;
"petroleum products" under Florida Statutes §
as defined in Florida Statutes § 376.301 or FtO
Stat § 403.031; and (i) ground or water pollu
County Code.
by math
1, (h) contain
Statutes § 403.0
s defined by Section -
"Environmental Due Diligen" defined in .03
"Existing Construction Docum
prepared pursuant to the terms of a profd
Robertson & Partners, owed by t
"Force Maleit
condition, flood, fire, e
but not limited to t]
disturban
comma;
corporation,
"Funding
"Governmenta
governmental departmen
instrumentality of any of them.
means ift
eniic, m
the engiing and construction documents
s agreebetween the City and Cooper
o 08-406 on July 10, 2008,
act of UQ ear hquake hurricane or other severe weather
accident, plosion, casualty, labor controversy (including
t>a1 locket boycott or strike), riot, terrorism, civil
nflit?(or threats of the foregoing), delay of a
other causeo causes of any similar nature.
The Friends of Museum Park, a Florida not -for -profit
n Article 3.
' means any federal, state, county, municipal or other
y, authority, commission, board, bureau, court, agency, or any
"Improvements Architect" means such architectural firm as the Conservancy or the City
may retain as the principal architect for the Park Improvements other than the landscape
improvements, and its respective successors or assigns.
"Insurance Policies" is defined in Section 10,01
"Landscape Architect" means such firm as the Conservancy shall designate as the
principal architects for the landscape design of the Park Component.
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"Lien" means any encumbrance, lien, lis pendens, security interest, pledge, easement,
license, right-of-way, covenant, condition, restriction or claim in, to, against or in any way
applicable to any portion of the Site or the Park Improvements.
"Master Plan" means the Museum Park Master Plan prepared by Cooper Roberson &
Partners, LLP, and accepted and approved by the City via Resolution No. 08-126 on March 13,
2008, as the same may be amended, substantially modified or replaced."Master Project
Schedule" means the Project schedule using a critical path method, prepared by the Construction
Manager, that identifies, coordinates and integrates the anticipated design, as necessary or
applicable, and construction milestones for the applica e\ Phase of the Project, the
Conservancy's responsibilities, Governmental Authority nr s and other activities as are
necessary for the timely completion of the Work, as sued ; dule shall be revised and updated
in accordance with Section 6.05(c).
"Museum Park" is identified in Recital A.
"Museum Park Liaison Committee" nwa s the committee formed: t psuant to Article 13,
"Operating Commencement Date" is define
"Operating Services" mean
Agreement in connection with the op
Phase of the Work and the ongoing fu
date,
"Ordinance"yin`+
policies relative to thi
ns City
greement.
ervices re d by the Conservancy under this
e Park Co,i i nent upon completion of the first
Rperatiofigthe Park Component after that
nances ' which"' slatively implement certain City
"Pa X°F p nent" gyp of �eum Park, consisting of approximately 21
acres w� hr e to l us to .jc facile at are capable of seating at least 5000 people in a
ermat Qnent is i-fied in Exhibit "B".
and construct ±
provements3,
i n the Park Co
means tha rovements and amenities to be designed, developed
onent purssuant to this Agreement.
"Party" mefiie City, Conservancy or both as context may require.
"Person" means `may al person, partnership, association, corporation, limited liability
company, trust, public body uthority, governmental unit or other entity.
"Phase" refers to a portion of the proposed Park Improvements.
"Project" means the design, renovation, development and construction of the Park
Improvements on the Park Component in accordance with this Agreement.
"Project Budget" means the capital budget, as it may be modified from time to time, for
the Project or any Phase thereof.
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"Project Coordination Team" is defined in Section 7,05,
"Remediation Costs" means only the costs of correcting, eliminating, monitoring,
remediating, or mitigating, any Environmental Conditions present on the Site as required by
Applicable Law.
"Resolution" means Resolution No.
"Schematic Design Documents" means the then current conceptual design documents of
the Park Improvements, as may be amended from time tp. time in accordance with this
Agreement, illustrating the scale and relationship of the compt?, `ts of the Park Improvements,
"Site" means the area of land described in Exhi
"Site Conditions means any site conditions other than ..Environmental Conditions,
including (i) subsurface or otherwise conceale s cal condition .ch differ materially from
those indicated or assumed in the Constructio n cuments; and (ii) u wn physical conditions
of an unusual nature which differ materially ff®, those ordi Zarily foun exist and generally
recognized as inherent in construction activities of char. � provided for .> c he Construction
Documents.
"State" means the State of Flo
"Substantial Mo
programmatic elementti
b a permanent &Mill
functionality of' a prog
temporary private event
be for use o=
security ko )
Park (other than durin 'oc
provided under this Agre
50% o from th c oncept origin
Section 6.04 ofs Agreemen
"Term" me
Article 2, as context m
deleti�
matic e'
Bch a
t); of
Yappro
cation" shal
ter Plan
change
ent from.,
erwise p
yer, in
or deletion of any single
of ltich exceeds $3,000,000,00;
aster which would change the use or
hlic to private use (other than the occasional
fitted under this Agreement) or which would
ental uses for ingress, egress, maintenance,
emed tae this clause); (c) prevent public access to the
sure for 0 ' struction, repair, maintenance or as otherwise
wire the modification of the Master Plan by more than
(or most recently approved) by the City, as set forth in
initial term and/or any of the renewal terms described in
"Transition Period" idefined in Article 2.
"Work" means all work to be performed to construct the Park Improvements, or any
Phase thereof, in accordance with this Agreement.
1,02 References. All references in this Agreement to particular sections or articles
shall, unless expressly otherwise provided or unless the context otherwise requires, be deemed to
refer to the specific sections or articles in this Agreement. The words "hereof", "herein",
"hereunder" and words of similar import refer to this Agreement as a whole and not to any
particular section or article. All pronouns and variations thereof used in this Agreement shall,
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regardless of the pronoun actually used, be deemed to refer to the masculine, feminine, neuter,
singular or plural as the identity of the person or entity may require in the context in which such
pronoun is used. "Exhibits" refers to the exhibits attached to the body of this Agreement.
Exhibits constitute part of this Agreement.
ARTICLE 2
TERM
The City hereby engages, and the Conservancy hereby accepts such engagement, the
Conservancy to act as the developer of the Park Compone 'accordance with the terms and
conditions of this Agreement and in accordance wi licable laws, codes, rules and
regulations which have jurisdiction over the mattersE ` r erein. The initial Term of this
Agreement with respect to the Development Services shall �c enee on the Effective Date.
The initial Term of this Agreement with respecttt t1e Operating vices shall commence upon
the breaking ground or initial commencement o nstruction completionof the first Phase of the
Park Improvements, which is anticipated to cur on or about eighteen (18) months from the
Effective Date. The Parties agree to execute a ke ment c firming such commencement date
(the "Operating Commencement Date") after it has r he initial tern ` C this Agreement
tt
shall expire on the tenth anniversary
the Effective Date and the Operati
"Transition Period." Provided that t
Agreement shall may be extended for th
Manager gives the Con exv t y written
months prior to the
terminate this Agree
(180) days prior writte r
convenience
the Con r\
Florid
represe
City or the
in
termination rr%
time up
gre
tanicipal corporation
ns under claus(a),
nservancy sha
pursuant to
Operating
encement
tit is then.
Terms
s
tncement Date. Th`period between
e is sometimes referred to as the
good standing the Term of this
(10) years each, if the City
it to renew at least six (6)
then cui tkitl o al Term. The Conservancy may
enience at a y time upon of less than one hundred eighty
e City. e City may terminate this Agreement for its
one h ed eighty (180) days prior written notice to
nateat any time the City ceases to exist as a
e quail fi a ns of the Conservancy as set forth in its
(c) of Section 11.02 cease to be true and correct. The
ny recourse, redress or remedy against the other for a
of this Article.
ARTICLE 3
FUNDING
3.01 Capital Funding The Conservancy shall develop a capital funding plan for the
Park Improvement (the "Funding Plan") which shall include projected costs and draw down
schedules for City, private sector pledges, permitted financings and other funding for the design,
development and construction of the Park Improvements. The Conservancy 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
Construction Management Contract. The Funding Plan shall be prepared in consultation with the
City and the Conservancy shall give due consideration to comments made by the City. The
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Parties anticipate that the Conservancy shall receive capital funds from individuals, businesses,
foundations and other entities for private sector funding for some of the Park Improvements, and
that the agreements with such donors may include naming rights with respect to certain
components of the Park Improvements where the amount of the funding is sufficiently large to
justify naming rights as an inducement to the grant. Any agreements to establish naming rights
shall be made in consultation with the Miami City Commission and City Manager . The
Conservancy may also seek funding and grants from other governmental agencies. The City
agrees that it shall use reasonable good faith efforts to obtain funding from its allocated and
available revenues of its own and other sources (including funding from other agencies such as
the Omni Community Redevelopment Agency and Miami -Dada County ) in order to complete
the Park Improvements. No real property in Museum Parl ay be used to secure any debt nor
shall this or any other property owned by the City an agency / instrumentality of the
City be used to secure any debt nor will such p ; K t £, otherwise liened, pledged or
encumbered.. The Funding Plan shall reflect all a ci ,x ted soli and uses of funds, and shall
identify any dedicated grants which include n . rights or o : restrictions or conditions.
The Funding Plan may suggest phasing of v ,: o s components of' the rk Improvements and
propose alternative funding sources or cue- features for future etermination. The
Conservancy may revise the Funding Plan from to time, circumstances ay require. The
Funding Plan shall serve as the initial Projects T ° e Conservancy's _ , acting as the
developer under this Agreement, w:
private and public sources. With nil
Parties, the Conservancy shall provide
has received written pled e .;or gift agre
amount of not less Million
Conservancy shall d velop on got g or sub
later Phases of the Prof
e recipien o lunding for the Project from various
days of t xecution of this Agreement by all
th document ` evidence that the Conservancy
trd parts for the Project in an aggregate
Fousan "'Dollars ($7,500,000). The
ing Plans from time to time for
3.02 a in for er h s e Conservancy also shall prepare, for each year during
the Ter trating c menc'efat*an annual operating budget for the Park
Comp d " showing th source ci applicalfd''x - Hof all operating funds. The Parties anticipate
that theConservancy shallreceive operating funds from individuals, businesses, foundations and
other entities or private sefunding(which may include the Friends of Museum Park), as
well as fundingom the Cit e Co u ty, and other governmental agencies in amounts, and
subject to conditionsto be det coed from time to time during the Term of this Agreement.
The Conservancy, 'ts operpn of the Park Component, may generate fees from users,
vendors, special even , d sp r ors, which fees shall be used for the expenses of operating the
Park Component. The er ancy shall also seek to establish operating endowments and other
sources of operating funds or some of the Park Improvements, and that the agreements with
such donors may include naming rights or other consideration.
ARTICLE 4
DESCRIPTION OF PARK COMPONENT IMPROVEMENTS
4.01 Ownership. The Conservancy shall cause the Park Component to be developed
and improved by the Construction Manager and their consultants and contractors as a municipal
park, and shall continue to be owned at all times by the City. At all times, the City shall own all
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Park Improvements developed pursuant to this Agreement, including any structures, permanent
fixtures, furniture, other improvements, and equipment affixed permanently to the Site.
4.02 Intent. The Conservancy and the City agree and recognize that the development
of the Park Improvements as set forth within this Agreement is intended to: (a) ensure that the
Park Component remains an attractive destination in order to provide recreation for its visitors,
stimulate the local economy, showcase the City and enhance the City's reputation as an
international tourism destination; and (b) create new and attractive recreational features and
enhance the public's ability to use and enjoy the Park Component throughout the year.
4.03 Development Plan. The Development Plan z Development Plan") for the Park
Improvements identified in the original plans developed Al ooper Robertson & Partners, LLP
(the "Master Plan") will be created by the ConservancyCation with the City. As part of
the Development Plan, the Conservancy shall e ea e "B hag Program" and a separate
"Existing Facilities Program." A description o existing fac > ti s and features of the Park
Component is set forth in Exhibit "C". The B .iil ` ng Program shall iris ` t orate the Funding Plan
and shall identify the proposed Park Improveik is identified in the Plan. The Existing
Facilities Program shall document and analyze c xisting ; to of the Park..including existing
improvements and natural conditions on the Site Co ancy shall esI ' ;h the elements
to be included in the Developn-te to l , The De o e ent Plan shall inc uude a narrative
description of' the renovations, ents anc`F. kkstruction constituting the Park
Improvements. The narrative description i�rlf ded to add "ess the development, sequencing
and modification of' the various prograt ^. atic el f e is ide ti t red in the Master Plan, which
elements constitute the ovements n erea < y" e evel _: -tent Plan, the Conservancy
shall be governed by . Mas an and sh 2 such*adjustments to the same necessary to
effectuate the design , t of the ester Plan `` le accounting for those programmatic elements
that have already be onstrl d or whi have been superseded by improvements
subsequentlytcooleted b = ding th existing Facilities described in Exhibit "C".
The Con W ? 4 also consult an p 11for other premier urban parks and consult
such e s as the e vane y e. ires in o to :incorporate and adapt best practices and to
ue world c ss, a
create a�=,�. �� rkh reflects the needs and aspirations of Miami's residents
and visitors. '1 he Development Plan t e same maybe amended from time -to -time, shall be
submitted to City. Shou d, 'mplem ation of the Development Plan require Substantial
Modifications Master Pl then the proposed amendment to the Master Plan shall be
submitted to the Ci r its revs and approval.
4.04 Phased Dveioi? ent. The Parties recognize that funding for the Project will
come from various sources Ind that funding for the entire Project may not be available at the
time of commencement of construction of the initial Park Improvements. Accordingly, the
Parties agree that the Project may be developed in one of more Phases. The Conservancy shall
propose suggested phasing of the Park Improvements and a timeline for construction of each
Phase, subject in each case of the availability of funding. The Conservancy shall endeavor to
cause the completion of all elements of the subsequent Phases no later than the dates suggested
in the Development Plan. To this end, the Conservancy and the City agree to meet promptly and
regularly after the execution of this Agreement to discuss phasing and to report on its progress in
completing each Phase of the Project.
#4435018 v8
10
ARTICLE 5
PARK IMPROVEMENTS
5.01 Development of Park Improvements. The Conservancy shall serve as the
developer of the Park Component. Subject to the provisions of Section 14.17, the Conservancy
shall (a) manage and control the design, development and construction of the Park Component
consistent with the Master Plan, (b) be responsible for managing and resolving all pre-
development issues required for the Park Component, including but not limited to, regulatory
reviews and approvals, traffic, parking and engineering�alysis, all in accordance with
Applicable Laws and the Development Plan and (c) coordi s activities with the developers
and operators of the MAM Museum and MSM Museum.
5.02 The Site, The City shall deliver '® sical F session of the Site to the
Conservancyso that the Conservancymayco r e construe i cif the Park Improvements
�� ,l?� p
within the Site.
5.03 Existing Environmental Reports
copies of all existing reports of Environmental
Phase I and Phase II environmental,
of any certificates or notices from D
with the City, shall determine if, ba
engagement of a consultant to perform
Site at a cost to be pa
acknowledge and a
Environmental Due
liable to the other for a
report.
e Conser
raf 1
ence rep
errors of
a cons
for the
missions is
s. The Cit
erning they
reports,
ental
e City shall provide `t Conservancy with
ition 03 the Site, in cling the existing
urnish the Conservd cy with copies
The Conservancy, in consultation
necessity or advisability of the
w, testing or monitoring of the
e Diligence"). The Parties
�n he consultant will prepare its
it of both "Parties and neither Party shall be
ch report or for either Party's reliance on the
t
Scope <of F viro m tal Due $ e Vie. The Environmental Due Diligence shall
include ii e entire Site e consultant shall investigate and test, to the extent practicable
those areas of the Site where'each p Improvement is to be built. The Environmental Due
Diligence repots shall set for fx the co ul▪ tant's findings, and the report shall identify any
Environmenta!Conditions preso ; on the S▪ ite, the known or presumed location or radius of' any
Environmental Co nit ons, and ^ anticipated impact of such Environmental Conditions in light
of the Project Impro t pr ed to be built on each such location within the Site.
5.05 Remediatioligation Disclosed in the Environmental Due Diligence Report, If
the Environmental Due Diligence report discloses Environmental Conditions on the Site, then
the City shall be responsible for completing the required remediation or mitigation work and
paying the Remediation Costs out of its separate funds. The Remediation Costs shall not be part
of the Funding Plan or Project Budget or constitute an operating expense of the Park Component.
Subject to any requirements of applicable law, the Parties agree that the time for undertaking any
specific remediation of Environmental Conditions at the Site shall be scheduled in a
commercially reasonable way and consistent with the phasing of construction of Park
Improvements located within (or affected by) the Environmental Condition in question. If the
Conservancy undertakes any remediation or mitigation of Environmental Conditions on behalf of
#4435018 v8
11
utilities, including, witho
storm drainage faciliti
negatively impact any
Requirements"). The Cit;
and application o atis
join in any
such doc
Days foilt
or petitions
the Park Impr
time to time
petition in which
or designee cannot be
objection. The City agrees
would substantially delay or
the City, the City shall the Conservancy for the underlying Environmental Conditions as well as
the remediation or mitigation work undertaken by the Conservancy for the City's benefit.
5.06 Site Conditions. The City presents the site in "AS IS" condition, and makes no
warranty, representation or affirmation as to the condition or suitability of the site or any
conditions o elements on the site. As necessary for the Conservancy to complete its construction
obligations related to the Work, the Conservancy shall have the right to inspect the Site and to
perform such tests as it deems necessary or appropriate from time to time to determine the
existence of Site Conditions, The Conservancy shall cause the Park Improvements to be
designed taking such Site Conditions into account and s provide in the Construction
Documents for the removal of any objectionable Site t� Ions such as debris and non-
hazardous materials necessary for construction of the Par t ovements.
5.07 Development Requirements,
(a) The City, subject to the riements of Appl
with and upon application by the Conserva cy shall use reasonab , expeditiously process all applications for consents, app ovals andpermits ne
construction of the Park Improvements; which may
warranty, waiver or special permits
public right of way closure(s) and arc
applications; (iv) those from Miami -Dade
overseeing environmental regulations and
ion, elect'
in the
public f cilities, (vi
ressly `thorizes t'
equirca
ts on beh
g receipt of' a
onably necessary
o : ants preparec.
unle =e City Man
cask .
. parties
�1 We
special exce
ram.
petition'
S ewer
titions
airs;(
Laws, in consultation
;ood faith efforts to
y to allow for the
plicable, with t; limitation; (i)
applications; (ii) r, alley, and/or
ii) re -zoning or zoning variance
artment and/or City departments
locate all public and private
elecomi,nication, water, sewer, and
ocation will not materially and
ing permit lvV (collectively, the "Development
Conservancy to apply for and obtain permits
;ants, and to the extent the City is required to
ons, t c he eby authorizes the City Manager to execute
The City tiger or designee shall, within five (5) Business
t from the Conservancy, execute any applications, forms
o mood P (, renew, or obtain any Development Requirements for
the Conservancy or its consultant, as may be necessary from
er has a concern or objection to such an application, form or
1 confer on the matter and further provided the City Manager
o execute an application to which they have a reasonable
act unreasonably, or unreasonably fail to act, in a manner that
in jeopardy, or would reasonably be expected to jeopardize, the
timely completion of any Phase of the Park Improvements.
(b) To the extent permitted by Applicable Laws, any City permit fees and other
City Development Requirements fees applicable to the Project shall be waived.
5.08 Access to Site,
(a) The City shall provide authorization for the Conservancy and its agents,
consultants and contractors (including the Construction Manager and the Design Professionals) to,
#4435018 v8
12
immediately upon the Effective Date, enter upon the Site in order for them to be able to perform
various tests and studies of the Site, and other preconstruction work as contemplated by this
Agreement.
(b) Upon the date set forth in the Master Project Schedule as the commencement
of construction date for a particular Phase, the Conservancy shall cause the Construction Manager
to be responsible for securing that part of the Site under construction for a particular Phase and
providing the insurance required by this Agreement. All or part of the Park Component may be
closed to the public during testing, site preparation or construction of Park Improvements, some of
which may be conducted as early as the Transition Period. The cpnservancy shall be permitted to
fence off and/or exclude the public from those portions of the i which the Work and/or staging
for the Work are being performed while the Park undergo ' , development contemplated under
this Agreement under this Agreement. The Consery 11 cause all construction areas
(including staging areas) shall be covered by the bons anted insuranc \obtained by the Construction
Manager, in conformance with the requirement under th s Agreement.
(c) The City, through its Cit , resentative or any of h: r xepresentatives, shall
continue to have access to the Site at all times, including those portions unde a truction.
6.01 Impleme
Conservancy to hale
�
Improvements idea
Documents, subject to
conditions or otherwise
require
t
to over
Improvem
architectural
Conservancy
and intere
engage a separate Imp
functions should be comb
disciplines.
d therein
h mo
ebiterg
Eng
dification or ess1on,
e selection
e The Cons
for the cr
sh 1. ct the A .G
st in the Pr ct ana
ARTICLE
of the Mani
Master
s the s
cations a
this
e expr intent of both the City and
the construction of the Park
e reflect in the Existing Construction
ay be reasonably necessary to address site
ement,
itect. o e.. extent the Existing Construction Documents
onservancall form an architectural selection committee
esign P fessionals and approval of the designs of the Park
ncy sfl interview experienced architectural or landscape
ton of' the Development Plan and Design Documents. The
tect for the Project after review of qualified firms expressing
ving qualifications for its execution. The Conservancy may
s Architect and Landscape Architect, or determine that those
and awarded to a single Architect who is qualified in both
6.03 Architectural Style, The architectural style of the Park Improvements shall be
consistent with the architectural/design style set forth in the Master Plan. Substantial
Modifications to the architectural/design style may be advanced by the Conservancy in
consultation with the City and the Architect, subject to approval by the City Commission,
6,04 Amendment to Master Plan & Development Plan. The Conservancy shall manage
and control the implementation of the Park Improvements, including the hiring of the Design
#4435018 v8
13
Professionals and the development of all of the Design Documents that may be required. As
necessary, the Conservancy shall direct the Design Professionals to prepare Design Documents
that are consistent with the Development Plan and all Applicable Laws. If the Development Plan
is subsequently modified by the Conservancy by more than 50% from the original Development
Plan originally approved by the City, then the Conservancy shall submit the amended Master
Plan to the City for review, consideration and approval.
6.05 Design Professionals. The Conservancy will, as necessary, retain the Architect
for architectural and design services required in connection with the design and construction of
the Park Improvements. All architectural and engineering fe and sums paid to the Architect
and other Design Professionals shall be paid as part of th n ject Budget. The Conservancy
shall enter into an Architect Contract with the Architec may enter into other professional
services agreements with other Design Professionalschitectural and design services
required in connection with the design and co s„ ruction ofk°'e Park Improvements, The
Architect Contract and professional services a r y-, > is shall be c tstent with the terms of this
Agreement.
6.06 Design Documents.
(a) Generally. Thy
Documents, the Design Documents an
Improvements. To assist the City in its re
with any future Design Documents a sun
and guidance The Cisentative
Documents referenced
Construction. All De
practice in the State of Fld
to the limits of.,.construction
ingress and
Documents,
renderings, pla
The Schematic DI
Agreement, the Res
Documents to address
submit revised Schematic
Representaty shall review all Schematic Design
struction s cments, as applicable, for the Park
nservancy ll cause the Architect to provide
aterial changes and provide commentary
rvisi directing or controlling the
ties or any o lant or the means or methods of
shall be ,pared by an architect or engineer licensed to
describe al � ements of the Work including, but not limited
vehict? circulation and locations of construction
De'St
pleme
11best
Documents
�t on, and 4
ctnments
Documi is, As necessary, the Schematic Design
et forth in the Development Plan, including updated
itted to the City Representative to provide comments.
all be designed in accordance with all of the provisions of this
licable Law. If the Architect revises the Schematic Design
sed by the City Representative, then the Conservancy shall
ocuments to the City Representative.
(c) Master Project Schedule. As necessary or applicable, within ninety (90) days
after the finalization of the Schematic Design Documents, the Conservancy shall prepare and
deliver to the City Representative the master project schedule ("Master Project Schedule") for the
Work, the Project Budget and the proposed completion date, broken down, as appropriate, for the
applicable Phases of the Work.
(d) Construction Documents, The Conservancy shall, as necessary, prepare the
Construction Documents for each Phase of the Work (as applicable) at such time as the
Conservancy is ready to proceed with the Work for that particular Phase, all in accordance with the
#4435018 v8
14
Master Project Schedule. The Construction Documents shall conform to Applicable Law. Prior to
commencing the development of' any revised Construction Documents for a particular Phase of the
Work, the Conservancy shall consider all comments and requests for modifications by the City
prior to submitting the Construction documents to the regulatory agencies for permitting. The
Conservancy shall apply for all required permits from the regulatory agencies having jurisdiction
over the Site and the Work. The Conservancy may revise the Design Documents for the Park
Improvements from time to time provided that they conform to Applicable Law, and remain
consistent in all material respects with the then current Development Plan. Any revisions to the
Design Documents which would require regulatory review and approval by any Governmental
Authority for permitting or otherwise, shall be submitted to the City,Representative.
6.07 Use of Plans. All Architect Contracts ent to by the Conservancy shall grant
to the Conservancy and the City, and subject to the u ity d other procedures set forth in
Chapter 119 Florida Statutes, a perpetual license it the n Documents in connection
with the development, operation and modificatio he Park Imp ov; ments; such license being
conditioned, however, on the payment of 1 undisputed amounts ue and owing under the
Architect Contract. All construction docum ts, plans, specificatio > drawings, revisions,
modifications, models, samples and the like su i ted to the City or th ' y Representative
pursuant to this Agreement are f informations 3`, r only, except q,,the extent (a)
otherwise expressly provided here , b)theyare fitted to the City regulatory or
p Y ��( g Y
permitting purposes.
7.01
Conservane
funding
the Cc �t Project
dction Doc n } e t
get as any of ` e
Parties act wledge that t
that funding 11 be governed k
design and construction will
Manager, Genera0,14ractor, A
otherwise specificallyiovided
action for the orderly p5 �.
construction of the Park Im
CON
Constru ti n Admi tration. S > feet to the provisions of Section 14.17, the
1 overse a? �t . direct ii g, supervising, coordinating, controlling and
coi stir" tl n ode Park Improvements in accordance with,
s, th e( nstructihedule, the Master Project Schedule, and the
foreg may be odified as permitted by this Agreement. The
onser `. is not obligated to provide any of' its own funds, and
the 1' ;riding Plan. The Parties further acknowledge that all
performed not by the Conservancy but by the Construction
hitect and Design Professionals, as the case may be. Except as
this Agreement, the Conservancy agrees to take all reasonable
ice of all aspects of the Work required in connection with the
ovements, including, but not limited to:
(a) retaining the services of the Architect, compliance with the requirements of
the Architect Contract, and coordinating the design of the Park Improvements;
(b) retaining, as necessary, the services of specialty consultants;
(c) retaining the services of the Construction Manager pursuant to Section 7,02,
who shall cause the Park Improvements to be constructed in accordance with the requirements of
#4435018 v8
15
this Agreement, the Construction Schedule, the Master Project Schedule, the Construction
Documents, and the Construction Management Contract;
(d) preparing and updating, or causing to be prepared and updated from time to
time, the Construction Schedule and the Master Project Schedule, and delivering copies to the
Project Coordination Team;
(e) retaining and supervising the personnel reasonably required by the
Conservancy in order to properly perform or cause to be performed the Work; and the
compensation and expense of such personnel shall be reflected inland paid as part of, the Project
Budget;
(f) maintaining, or causing to be mai
records, consistent with industry standards, regardin
including but not limited to, the Construction Docu
Orders, as -built drawings, applications for payl
receipts, lien waivers, customary periodic reports:
and bid calculation sheets;
(g) taking all actio
the Resolution] and taking all reas
Construction Manager and all other agen
and construct the Park Improvements in ac
provisions of the Architect, tt� et and Con
(h)
be provided to the City i i
the Project that they may rea
Documentrid any matey
completion for ea+
City Re
ursuant t
pmplete and accurate books and
tl®'esig. construction of the Project,
s, shop drat , testing, surveys, Change
permits, insura policies, bills, vouchers,
Spector daily reports,iates, correspondence
onably requi
ction regi
actors
,comply with Appl= ble Laws [and
to cause the Architect and the
e ged by the Conservancy to design
pplic aws, [the Resolution] and the
rnent : y tract;
five doe ents and information required to
s Agreement and other information relating to
amity en Live, with copies of the Construction
s reflect] . eviations from the Construction Document;
managin nd en
hase undertaep is achi
g that all punch list and warranty work after
ed;
(k) blishin„ d updating, as necessary and in accordance with the
requirements of this Agr t Schedule of dates for delivery of various Design Documents for
review by the City Represen`
(1) inviting the City Representative to Project meetings and preparing or causing
to be prepared minutes for all scheduled project meetings (including construction meetings) and
providing the City Representative with copies of minutes prepared by the Conservancy, or by its
contractors that are received by the Conservancy, with respect to relevant Project meetings for the
Park Improvements, as the case may be;
(m) endeavoring to cause the completion of the Park Improvements in accordance
with the Design Documents, the Construction Schedule, the Master Project Schedule and within the
Project Budget;
#4435018 v8
16
(n) obtaining or causing to be obtained permits necessary for construction of the
Project;
(o) maintaining, or causing to be maintained, the Park Improvements
construction sites in safe condition and properly secured against unpermitted access from and after
the Commencement of Construction;
(p) providing the City Representative the monthly progress reports required by
this Agreement and the Construction Management Contract as prepared by the Construction
Manager;
(q) supervising and coordinating, or uSirs easonable efforts to cause the
Construction Manager to supervise and coordinate, the< ,t f c��St`�t�,etion of the Park Improvements,
including the scheduling of all construction work o 'ar provements, so that the Park
Improvements are constructed, equipped, furnished�pnd complete a good and workmanlike
manner, in accordance with the Design Documen Master Projec ?edule and otherwise in
accordance with this Agreement; and
(r) causing the Construction Man to ec dinate work a sl ant appropriate
access to the Site for contractors appropriately performs
(s) causing the requsl�trt t and p`eoirmance bonding as required by
255.05, Florida Statutes , to be in place pri to tl p tnencem of construction and throughout
the course of the work unti.
permit is issued, namin
shall be in the amount
amount of one hundred
of Miami as a co- obligee
.................
designee an
legal ford;
the Proie1
market rate
equipment ,
purpo
ecified by t
ith reas
including
�� ,
The Pardee cknowled
imum, a
the Co
prescri
nt of the
The bon
ect to itr
this se C
he chitec
onabp•lIowane;
copensatio
occ>p ley or the equivalent building
as provided herein. Such bonds
55.05,I iida Statutes and shall be in the
struction Cost .The bond shall name the City
ust be kept on file with the City Manager or
Risk Manager and the City Attorney as to
on Con most shall mean the cost of all elements of
the Desig :y3iild Firm , as applicable , including at current
or overhead and profit, the cost of labor, material or
the Architect or other Design Professionals.
and agree that the Conservancy's obligations under this
Agreement are to ma t age, aditster, and implement the development, design, renovation and
construction of the Pre 1. F t twithstanding any term or condition in this Agreement to the
contrary, the intent of the tes is that the Conservancy shall not perform any services (and
shall not act) as a contractor within the meaning of Chapter 489, Florida Statutes, and that all
such services shall be performed by licensed contractors (as so defined under Chapter 489,
Florida Statutes).
7.02 Construction Manager..
(a) The Conservancy shall select the Construction Manager. Any Construction
Manager selected by the Conservancy shall be in good standing with the City, cannot be an entity or
#4435018 v8
17
deemed a waiver of any rights of
Management Contract shall include pro
Applicable Laws, and provide the requisi
Statutes, the insurance requirements set
Construction Manageme Ct may be
Conservancy under this e° eemen or under th
(d)
of the Construe
the same ex
Construe
person that is debarred from doing City work, and cannot be in arrears or delinquent in its debts or
obligations to the City.
(b) The Construction Manager shall oversee construction of' the Park
Improvements. The Construction Manager shall select and engage such other service providers in
connection with the Work as the Conservancy and the Construction Manager may deem necessary.
(c) The Conservancy shall enter into a Construction Management Contract with
the Construction Manager to oversee the construction of the Park Improvements, or the
Conservancy may elect that the City enter into the Construction Management Contract. The
Construction Management Contract shall be consistent wi lie terms of this Agreement,
Applicable Law [and the Resolution] and shall at all times c the requirements set forth below.
The Construction Management Contracts shall provide f. ' ,. tingencY of not less than five
percent [5%]. The Conservancy shall submit to the copy o..'=e Construction Management
Contract. The City's review and any comments slat to complete FAprovided within those ten
(10) Business Days, which time shall be extended to thirty (30) adc fional days if so requested
by the City Manager.. In the event that the City does not deliver written o tions to the proposed
Construction Management Contract within such tetl ,10 Busi .e. Dayper �t en the provisions�) P
of Article 9 shall apply. The City's revew of the Coil uct anagement o'act shall not be
is Agreement. 1le Construction
]ty containe
uiring the construction Manager to comply with
in acco Ace with Section 255.05 Florida
e 10 a revisions under which the
ity e event of a default by the
ement Contract.
Managem Contract shall require that each subcontractor
Conse ey and the City in the same manner and to
es the Conservancy and the City under the
Before tl Construction Manager commences its services related to the Park
Improvements,') a 1. ding, but n Jn ted to %entering into any subcontracts, purchasing or ordering
� x
any supplies, m uls, or equip lent, undertaking Site inspections or testing, and/or any
construction, the Con i et on Ma a er shall execute, deliver to the City and the Conservancy, and
•
record in the public re c ds of i ,City, separate payment and performance bonds, in an amount
equal to the total cost ofth p1'icable Phase of the Park Improvements. Each payment and
performance bond shall be iri compliance with the terms of' Section 255.05, Florida Statutes,
specifically in compliance with the requirements of Section 255.05(1)(a) and (c), 255.05(3), and
255.05(6), and shall name the City and the Conservancy as beneficiaries thereof', as joint obligees.
7.03 General Contractor. In causing the construction of the Park Improvements, the
Conservancy may elect to use a general contractor under a general contract for construction
instead of the Construction Manager model, and in such case all references in Section 7.02 or
elsewhere in this Agreement to "Construction Manager" or "Construction Management
Contract" shall be interpreted as referring the general contractor and the general contract for
construction.
#4435018 v8
18
7.04 Change Orders. Change Orders by the Conservancy relating to the Work shall not
be subject to advance review to the City provided that: (a) the Change Order does not
substantially delay the completion beyond the targeted completion date for each Phase of the
Work; (b) the Change Order does not pose a material risk to public safety; (c) the Change Order
does not (i) eliminate or otherwise substantially modify an element from the Development Plan,
or (ii) materially alter the design of the Park Improvements, or any part thereof, as depicted in
the most recent Design Documents for that Phase; (d) the Change Order does not exceed the
Project Budget for the Phase in question unless the Conservancy has funding for the changed
element, and (e) the Change Order conforms with [the Resolution], Applicable Law and this
Agreement. In addition, the Conservancy shall make any Change Orders that are required to
comply with the final permitted set of Construction Docuin is and Applicable Law. The
Conservancy shall make a good faith effort to furnish ity with an advance copy of any
Change Order that does not comply with clauses (a) t , e above.
su
7.05 Permitting. The Conservancy sly lcepthe City Representative informed of' the
progress of the Work during the permitphase and shall c, ordinate with the City
Representative to ensure that permitting require ents are acceptable to ° 1ty•
7,06 Procurement of' Construction Materi
Law, the Conservancy and the City s�j eonsider im
program in order to allow the City o p h..se all or
equipment for the Park Improvements{ a xen pt
Such consideration shall include the feasibility
Conservancy of' their rc e costs to i
by the Parties by im enting s a progr
7.07 Construe -tit);
Construe
meetings.
between the
construction
authorization
Conservancy
therein.
w
vianager a one �i
serve to revie
Anservancy,
F activities a
to 0dy the Site
shall b ponsible
e extent alto/ % , by Applicable
ng a sales tax exe pt procurement
s r of the construction materials and
ba i th funds from the Funding Plan.
e, a dot : ination by the City and the
ogram, d any savings to be realized
,he d144 , a pre -construction meeting between its
Repres�l �ve prior to mobilization. The pre -construction
s the upcoming construction activities. Upon agreement
onstruetion Manager and the City Representative as to all
he associated logistics and timing, the City will issue an
„Upon issuance of the authorization to occupy the Site, the
securing the Site and all construction activities occurring
(b) The Cifuction Manager shall be responsible for the construction of the
Work in accordance with the Construction Documents. All Work shall comply with all Applicable
Laws, Construction shall be performed by certified, bonded, insured and licensed contractors and
subcontractors.
7.08 Punch List. The Architect and the Conservancy, in consultation and with input
from the City Representative, shall cause to be prepared a punch list of items to be completed by
the Construction Manager after completion so that the Work will be in general conformity with
the Construction Documents. The Conservancy shall provide the City Representative with a
copy of the punch list and shall incorporate comments from the City into the punch list. The
#4435018 v8
19
Conservancy shall use reasonable efforts to cause the Construction Manager to complete the
punch list items as soon as reasonably practicable in accordance with Construction Management
Contract. All work shall be performed by the Construction Manager in a good and workmanlike
manner in conformity with the Construction Documents, The City Representative, upon request,
shall be provided with a copy of the punch list items by the Construction Manager upon
completion of all work items.
7.09 Warranties. To the extent practicable, all the Construction Manager warranties
and the relevant subcontractor, supplier and manufacturer warranties with respect to the Park
Improvements shall name the Conservancy and the City a intended beneficiaries of the
warranties. The Conservancy shall not knowingly take y action negating the Construction
Manager and any subcontractors', suppliers' and i S acturers' warranties, except for
emergencies, matters of public safety. A copy of eac of i y shall be delivered to the City
Representative.
7.10 Liens. The Construction M °�r shall cause the Park Improvements to be
constructed in accordance with the Construe ocuments free and l ` r of any and all Liens
arising from the Work that encumber the proper c prisin t e Site or thh Park Improvements.
In the event any such Lien is fil d by the Art c Construction ;.. nager, or any
subcontractors or suppliers, the Cons racy shall caus said Lien to be dischar 'd or transferred
to appropriate bond within thirty (3 asp recordin . h e Conservancy acknowledges and
understands that under Chapter 713 lorid' latutes and other Applicable Laws City real
property is not subject to mechanics or s
8
are u
prelim`.
Conserve
shall contmu
receive oper
this Agreement.
Transition Pe
Period
iscussiO w th F
and will` e
Viand the Tr
manage the
atinfunding for
onserva
to p ` Land cc
8.02 After Trans ilri Period. Beginning on the Operations Commencement Date, and
continuing throughout the Term of this Agreement, the Conservancy shall maintain and operate
the Park Component in accordance with the standards set forth in this Article 8. The
Conservancy may engage contractors and vendors to perform all or any part of such services.
Following the Transition Period the Conservancy shall continue to consult and coordinate with
the Bayfront Park Management Trust regarding operations, programming, events and
opportunities to achieve efficiencies and to enhance the uses and enjoyment of the Park
Component by Miami's residents and visitors. This relationship and process shall be on -going.
throughout the Term as the uses and positioning of the Park Component evolve and mature, and
Al
RATING ERVICES
ont Par
G NOTE: The provisions of Article 8
ement Trust. The text of Article 8 is
based i the on -going discussions between the
be Transition Period, Bayfront Park Management Trust
ay -to daoperations of the Park Component and continue to
operations from the sources existing as of the execution of
will consult with Bayfront Park Management Trust during the
linate future Park operations.
#4435018 v8
20
the Conservancy shall review the role of the Bayfront Park Management Trust no less frequently
than annually.
8.03 General Standards For Maintenance. The Conservancy shall observe (and cause
its contractors to observe) the following standards for maintenance and repair:
(a) Cleaning.
(i)
debris, and obstructions.
Keeping the Park Component neat and clean, free of dirt, trash,
(ii) Maintaining all walkways, walks and all other improvements
and facilities in the Park Component (except those f i it specifically excluded pursuant to
Clause (e) of this Section 8,03.
2u Ff 4 :"Y
(iii) Regularly remove fir` painting over >n . iti, as appropriate to the
(iv) Cleaning drains, s and :`` lh basins o ,regular basis to
(v) Pruning ` oving br he es and trees.
(b) Landscape Maintenance. Tl t nsery ncF hall perform (or engage a e a
contractor to perform) thelfol landscap �mninte e rlc
nature of the surface.
prevent clogging.
or are otherwise unsafe d
cobbled
appropriate.
otherwise unhealthy
where appropriate.
n;Y,v
dncrete ar a
(v)
and trimi trees and Shrubs that are overextended, dead
maintain ieir natural form,
ving
ere, as ne
any weeds from paving blocks, pavement,
tilizer to trees, shrubs, plants and other lawn areas, as
cing any plants or trees that are dead, diseased and/or
specimens of substantially equal type and reasonable size,
Reseeding and/or re -sodding grass -covered areas, as needed.
(vi) Raking and collecting leaves.
(vii) Watering all trees, shrubs, plantings and grass -covered areas as
necessary to maintain such vegetation in a healthy condition.
#4435018 v8
(viii) Mowing and edging grass -covered areas as needed.
21
(c) Repairs. Repairs shall include, but not be limited to, the following:
(i) Benches or Other Seating: Replacing any broken or missing bench
slats, as needed, and painting benches, as needed.
(ii) Walls, Barriers, Bridges and/or Fencing: Repairing, removing
and/or replacing any broken or materially cracked walls, barriers, bridges and/or fencing. To the
extent feasible, replacement materials and designs shall match the materials and designs of
existing walls, barriers and/or fencing.
(iii) Paths: Keeping all paved surf
attractive condition. To the extent feasible, replacement
Notwithstanding the foregoing, the City shall be resp
sidewalks adjacent to the perimeter of the Site, incutt w
basins.
nd unpaved paths in a safe and
als shall match existing materials,
r maintenance of all roads and
limitation, sewers and catch
(d) Signs. The Conservancy s1 `# l maintain all graphics iIts,a first class condition,
and promptly cleaning all vandalized or damaged ' s or replacing suchvandalized or damaged
signs with new signs that match other installed signs. „1 Sig fall comply n applicable Sign
codes and Sign Regulations.
(e) Facilities. Theshall n % ain all recreation facilities and
equipment in the Park Component, other th. utili i 5 ?° ; re hydra and emergency call boxes, and
any other facilities and equtpi that are to ad in t Come: t and are operated pursuant
to concession agreemen
(f) ent Marztenance, aintaining all monuments and other Park
Improvements in good con
in g and Operation D ri the Transition Period, the Conservancy
shall 4('.lop and reoperational plan fo the Park Component consistent with the new
Park Im rovements, including the d t ination of the appropriate services to be provided and
their frequcneyand shall i�de1� ify se e providers and vendors suitable to undertake such
responsiblitie he Conservancy shall' lso develop annual operating budgets, and identify
likely public anprivate sources`;of funding for such operations as well as funds that may be
available from revers e producingevents and Concessions within the Park Component. The
Conservancy shall negO ce and maintenance contracts with such vendors and service
providers so that theywill s read to begin operations as of the Operations Commencement
P � ' Y g� p P
Date. During the Transition Period, maintenance and operation of the Park Component will
continue to be performed by the Bayfront Park Management Trust which may continue to
receive revenues from events and concessions managed or authorized by the Bayfront Park
Management Trust. The Conservancy will work with the Bayfront Park Management Trust to
coordinate the operation of Museum Park to the extent feasible and safe in light of any
construction of Park Improvements that may commence during the Transition Period. During the
Transition Period, the Conservancy shall develop and refine programming for the Park
Component consistent with its repositioning as a premier urban park, for the purpose of fully
exploiting the Park Improvements and the enhancement of the experience of Museum Park as a
#4435018 v8
22
unique and creative venue for the enjoyment and appreciation of Miami by its residents and
visitors, and to create programs and activities that will increase public awareness of and interest
in Museum Park. The Conservancy shall review with Bayfront Park Management Trust all
existing contracts and concessions which affect the Park Component during the Term, and shall
establish a program under which any existing obligations are modified, renegotiated, terminated
or continued after the Transition Period as may be contractually required, and to the extent not
contractually required or as may be desirable consistent with the Conservancy's operating vision
for the Park. During the Transition Period, the Conservancy may plan and execute events and
programs in order to test and refine its vision for subsequent operation of the Park Component;
the Conservancy shall coordinate any such events and progran s ith Bayfront Park Management
Trust to minimize any conflicts during the Transition Perio
8.05 Concessions The Conservancy will hay
and maintain food and beverage and merchandise cconcessions
within Museum Park (collectively, "Concessio ) - The Conser
to enter into sublicense agreements with thirdies for the mana
Concessions. Projected Concession revenue sllsbe included in the a`'
and it is intended that the revenues from Concession snshall b sed to fund
Improvements. The nature and locat ns of' Concessio hange over ti
Term, the Conservancy shall evalmodify the �x
quality and variety of the Concession es the visi+
City shall cooperate with the Conserva in t granting ,d
' of Concessions, to the extent required for��py part�c�a� Conce
Agreement.
8.06 Drug
throughout the term
compliance wit to provi
Parties
255,60,
Auditor Gen
the
Conserva
to reasonably
as a result of
and exclusive license to operate
to authorize special events
y shall have the authority
it and operation of the
1 operating budgets,
erations of the Park
hroughout the
essions program to ensure that the
d mission of Museum Park. The
licenses, permits or approvals
sublicensed pursuant to this
ice. TheefConservancy shall implement and maintain
ement a d�g free workplace program substantially in
ST �C;�JTES 287.087.
Comps ail with ORIDA S A,T TES 255.60. It is the intention of the
with y the
comply with the provisions of FLORIDA STATUTES.
ees t `e subject to review and audit at the discretion of the
mpliance The Auditor General shall give reasonable notice to
y such proposed review or audit, and the Conservancy agrees
uct of such review or audit. In the event of any issues arising
or in the event of any administrative or judicial finding that
it the Conservancy does comp provisions rovsions of FLORIDA STATUTES 255.60 then
the Parties shall act reason a lyand in good faith to resolve such issues or non-compliance for the
purpose of establishing or reestablishing the compliance of the Conservancy with FLORIDA
STATUTES 255.60.
#4435018 v8
the Conservvancy
Conservanc agi'
o ensure such
nc the event offl
coop' in the c
such allor rev�t
23
ARTICLE 9
APPROVALS AND CONSENTS
Where in this Agreement the approval or consent of any Party (including without
limitation the Conservancy, any Board, Committee, or Representative of the Conservancy, or
the City Manager or City Representative) 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 . may otherwise be required by
Applicable Laws in the opinion of the City Attorney, the w; .En approval or consent regarding
the matter in question by the City Manager or autho ie Manager's designee the City
Representative on behalf' of the City shall satisfy the :e; . e t for approval or consent of the
City for all purposes. The Parties acknowledgeta when' City acts or exercises its
proprietary rights or obligations under this Agr =it, it is doing in its capacity as the fee
owner of the Site and not as a municipality ' rid that the role : e City as a sovereign
municipality is separate and distinct from the r of the City as the fe 4 er of the Site under
this Agreement; the Parties further acknowledge d agree at the City e ressly reserves its
governmental planning level, olic . nd regulator d ci al functions i accordance with
g � P g P � g � P
Applicable Law, its Charter; Code , ® ;rehensive Pl`ai ,ro t Zoning Ordinance.
10
INSUl INDEM,rY A IIOL D micvtLESS
10.01 Insur
discussion only. Detai
the relevant)
cause the..
to pu
Policies
Conserva
testing or
issued in t
outlined below:
and nia i a the
The premium
shall furnish
Sit eparation �vo�
he; of the Co
(a) Build�� si Insurance: Builder's risk insurance for direct physical loss or
damage resulting from an ii s`red peril to the building, structures and other improvements
comprising all or part of the Work, including materials and equipment that are intended for
incorporation into the Work. The policy shall include coverage for physical loss or damage from
fire and other perils as are included under an "all risk" or "special form" policy to include named
windstorm and flood insurance. The Builder's Risk Insurance policy shall be in the name of
Conservancy and the City. The builder's risk insurance shall specifically insure the construction
materials and equipment purchased for the Park Improvements for incorporation in the Work.
(b) Professional Liability Insurance: Professional liability insurance for losses
that arise out of the professional services of the Architect and other professionals working on the
#4435018 v8
ING N The text f Article 10 is presented for
ice require a is should be determined in discussion with
City�a the Conservancy.] The Conservancy shall
n Ma r or Co ractors and subcontractors (as appropriate)
urance pole described in this Section (the "Insurance
the I ance Policies shall be included in the Project Budget. The
he Ci prior to the date the Conservancy first undertakes any
on the Site, which indicate that insurance coverage has been
rvancy and the City and which meets the requirements as
24
Park Improvements shall be provided with policy limits no less than [$5,000,000.00] per
claim/annual aggregate. If the Conservancy obtains Contingent Professional Liability Insurance or
Owners Protective Professional Indemnity insurance in order to comply with this coverage
requirement then the City shall be an additional insured to such professional liability insurance
policy. If this option is exercised, a certificate of insurance for the architect will also be provided.
Required professional liability insurance shall provide coverage from the commencement of the
design work for the applicable Phase and shall continue for no less than five (5) years after the
completion of each Phase of the Project.
statutory requirements of the State, including, as applicable, Chi
(c) Workers' Compensation: Workers' comp, nsation insurance meeting the
440, Florida Statutes.
(d) General Liability:Commercial ge itinsurance coverage for third
party bodily injury or property damage claims (i) arising mi. Fservices performed by the
Conservancy or the Construction Manager, Contracts s. and subconi ors for a combined single
limit for bodily injury and property damage of nots .-} han [$5,000,000 0 each occurrence/annual
aggregate. The City shall be shown as additional ured with respect to thi coverage
(e) Business Automobile LiabilityTitsuran
covering all owned, non -owned and 19dyehicles use
amount not less than [$1,000,000.00] i
Covered Autos — Endorsement CA 9948
Truckers Coverage Forms, if applicable.
The foregoin
policies so long as
Conservancy may co
requirements ag set forth
1 be endor
talent) for
Automobilef; i Ylit insurance
�t��
nection with this `agreement in an
o provide Broadened Coverage for
usiness Auto, Motor Carrier and
may be � iev� ly mhination of primary and excess
um limit '° are procured 4The City acknowledges that the
eloper co `t tilled" insurance program, which meets the
eInsurance Policies required in Sections
10.01( h City an Conservancy as additional insured contain
e in favor of the City and the Conservancy, and shall be
east t otgh Final Acceptance with the exception of Builder's
through substantial completion. The City shall be named as a
olicy required in Section 10.01(a). The Conservancy shall
bitten notice of any material changes to the Insurance Policies
Tie date the change becomes effective, if practicable, but in no
ch changes become effective. The Insurance Policies shall be
obtained from financially sound insurance companies rated not less than A-; VII by A.M. Best &
Company (or any equivalent rating agency approved by the City Risk Management Division,
which approval shall not be unreasonably withheld, delayed or conditioned) and authorized to do
business in the State. Any and all costs incurred by the Conservancy in discharging obligations
under this Article 9 shall be included as Project Costs. The policy limits stated in this Article 10
apply to the first Phase. For Subsequent Phases, the Parties agree to negotiate in good faith and
establish appropriate limits based on customary City practice for similar risks at the time of
commencement of the Subsequent Phases.
waivers o
maintained
Risk which
loss payee
provide theCity
within thirty (30) days
instance later than the da
#4435018 v8
(d) and (e) slim ame
brogation whetc
�� l kept in force:
{ fi
willb kept in for
on the ilders Ris1
Re ntative
25
10.03 Hold Harmless/ Indemnity Relative to Construction and Design Professionals.
The Conservancy agrees to hold City harmless, and defend from and to indemnify the
City ,its officials and employees, against any and all claims, demands and expenses, including
attorney's fees, of any Architect, Landscape Architect, Design / Build Firm, Design Professional,
Construction and/or Project manager, contractor, subcontractor, material person, laborer or any
other third person with whom the Conservancy has contracted or otherwise is found liable, in
respect to the Premises. Nothing contained in this Agreement shall be deemed, construed or
interpreted to imply any consent or The Conservancy on the part of City to subject the City's
interest or estate to any liability under any mechanic's or othemlien asserted by any contractor,
subcontractor, material person or supplier against any jdf the Premises or any of the
improvements thereon. All contracts, subcontracts, p e orders, or other Agreements
involving the Premises shall provide for the waiver of x hts in the Premises and provide
thatthe contracting party agrees to be bound by such avision = ,include the waiver provision
in any such Agreement.
10.04 Hold Harmless/ Indemnity — Gene
The Conservancy agrees to,
the City, its officials, and employee
damages or causes of action of whate
loss or destruction to Premises or any re
in or on the Premises, ` .. of or as
undertakings, progra:.
orders, judgments o`
attorneys' fees, expenses
the investigatio thereof, e
action a� � e neg
employ gents or i iials.
F
employees,
expenses arisi
Materials placed
assignees, or
Environmental Laws.
the Conser`c
mess from a
ngmorcaus
ri about t
at dir f
or d�
crees w1
d liabi
the City harm a "
m and aga
aa�gr any pe
r per i ropert
esult o,tl onse
day or
may be
s incurre
s, costs
wand defend from and to indemnify
any and all claims, suits, actions,
1 injury, loss of life or damage ,
ther improvements sustained
axcy's uses, acts, omissions,
reon, and from and against any
d thereof `, and from and against all costs,
and about the defense of any such claims and
abilities, suits, actions, damages or causes of
ence of the City, including any of its
shalldemnify, defend and hold the City, its officials and
against any and all claims, actions, damages, liabilities and
by the presence, in or about the Premises, of any Hazardous
Premises by The Conservancy , or its agents, employees or
n, or by User's failure to comply with all applicable
In addition the Conservancy shall indemnify , defend and hold the City , its officials and
from and against any and all claims, actions, damages, liabilities and expenses arising from or
caused by the alleged failure of the Conservancy , its officials and employees to comply with
Applicable Laws.
#4435018v8
26
ARTICLE 11
REPRESENTATIONS, WARRANTIES AND COVENANTS
11.01 City Representations, Warranties and Covenants. The City represents, warrants
and covenants to the Conservancy that the City has full power and authority to enter into this
Agreement, and the execution, delivery, and performance of this Agreement by the City have
been duly authorized by all necessary governmental action (other than all of the other various
customary regulatory approvals (in the City's sovereign capacity as a municipality), licenses and
permits which are required for the development, constructio use and operation of the Park
Improvements). The City Manager or his designee is the
deliver this Agreement on behalf of the City and has so
All necessary governmental action required by the
execution, delivery and performance by the City phi
a valid and binding obligation of the City, enf
terms. The City Representative will in due04
City as provided in this Agreement subject to
to th
`le against
e be duly autho
cable Laws. .
11.02 Conservancy Representations, Wad
represents, warrants and covenants ity that:
(a) The Conservancy
Florida Not For Profit Corporation Act,
existing under the laws of ter dtgt of Florid
(b) T
hold tax exempt status un
in s. 501(c)(3) o�f the Inte
requirement �t ei al
percent of g``i
onserva
501(
`luly authorized to execute and
ed and delivered this Agreement.
een taken to duly authorize the
reement. This Agreement is
"ty in accordance with its
Ito act on behalf of the
Covenants,
Conservancy
-profit ration, incorporated under the
17, duly formed and validly
is desi an d opera e omply with all requirements to
'of the Intel Revenue Code, as an organization described
ode. \Conservancy will timely comply with the
ination of their tax exempt status.
Admfiz tstrative
evenue, as th terms
(d)�
Statutes 255.60 th
Conservancy pursuant
ries and benefits of the Conservancy shall not exceed 15
sed in FLORIDA STATUTES 255.60(d).
ncy wilt comply with all applicable provisions of Florida
Agreement and the acts, undertakings and duties of the
ent
(e) The Cl vancy has all requisite corporate power and authority to enter into
this Agreement. This Agreement is a valid and binding obligation of the Conservancy, enforceable
against the Conservancy in accordance with its terms,
(f) The execution, delivery and performance by the Conservancy of this
Agreement have been duly authorized by all necessary corporate action of the Conservancy and will
not violate the Conservancy's Articles of Incorporation or Bylaws or result in the breach of or
constitute a default under any agreement or instrument to which the Conservancy is a party or by
which the Conservancy or its assets may be bound or affected. All consents and approvals of any
#4435018 v8
27
Person required in connection with the Conservancy's execution of this Agreement have been
obtained.
(g) The Conservancy will comply with the Florida Public Records Act, Chapter
119, Florida Statutes including the applicable section provides that the Conservancy acting as the
Conservancy shall additionally comply with Section 119.0701, Florida Statutes, including without
limitation : (1) keep and maintain public records that ordinarily and necessarily would be required
by the City to perform this service ; (2) provide the public with access to public records on the same
terms and conditions as the City would at the cost provided by Chapter 119, Florida Statutes, or as
otherwise provided by law ; (3) ensure that public records thatare exempt or confidential and
exempt from disclosure are not disclosed except as authorized w; (4) meet all requirements for
retaining public records and transfer , at no cost, to the City _ lic records in its possession upon
termination of this Agreement and destroy any dupli c records that are exempt or
confidential and exempt from disclosure requirements,-; All elec�l onicall stored public records
p�� 1' x Y
must be provided to the City in a format compatible with the C'it 's information technology
systems.
11.03 Mutual Covenants,
(a) The Parties, whene
do so by the other Party shall execute or c
further actions as may
transactions provided f
however, in all instancy
each of the P.
for any ille
otherwise per
be asserted by
parties.
(b) In ex
,act in
(c) No'rf
or on the ba`
ill d in this Agr
ar?;rty except
nably nett
;carry ou
y Boar
s and
often as
cuted a
als.
shall be reasonably requested to
rther documents and take any
order to consummate the
of, this Agreement, subject,
lling its obligations under this Agreement,
inate tliix %A`greement on the ground of ultra vires acts or
lenge to the enforceability of this Agreement, except as
ent ,15ct to the preceding sentence, no such challenge may
he institution of a declaratory action in which the Parties are
(d) Slio d eit r Party receive knowledge about any matter which may
constitute a breach of any o' arranties or covenants set forth in this Article 11 which arises
after the date of this Agreemen it shall promptly notify the other Party of the same in writing.
(e) During the term of this Agreement, the Parties shall comply with all
Applicable Laws relating to its ownership of the Site and the Park Improvements, and comply with
Applicable Laws with respect to the use, operation, development, occupancy and/or construction of
the Park Improvements by the Conservancy. The City in its capacity as fee owner of the Park
Improvements and Site shall execute such documents and file such documents and reports as may
be reasonably necessary to enable the Conservancy to obtain and maintain all necessary permits and
licenses that are required of an owner of the Park Improvements and/or Site.
#4435018v8
28
(f) All covenants, representations and warranties contained in this Agreement
shall survive the execution and delivery of this Agreement. No action taken pursuant to or related
to this Agreement, including any investigation by or on behalf of a Party shall be deemed to
constitute a waiver by the Party taking such action of compliance with any representation, warranty,
condition or agreement in this Agreement.
does not constitute a warranty, representation or other g
attempting to achieve will be successfully achieved a d iioParty' 11 be liable for any failure to
achieve the result or results intended so long as the has complied with its obligation to act in
good faith,
(g) In exercising its rights and fulfilling its obligations under this Agreement, the
City and the Conservancy shall act in good faith. Notwithstanding the foregoing, each Party
acknowledges that in each instance under this Agreement where a Party is obligated to exercise
good faith or to use good faith efforts, such Party shall not be req� t�d to expend any funds, or grant
any other consideration of any kind, in the performance of suc:4� ertaking, and each Party further
acknowledges that the obligation of any Party to act in god , or undertake good faith efforts
the result which the Parties are
(h) By execution of this Agreement,the City
or his designee to execute on behalf of the City , su
approval of the City Attorney as to leg form, any add
implement the intent of this Agreement. ; o standing
reasonable approval rights over the for xndltance
execute; and (b) no Party shall be required
of such Party under this A.grt or any of
any o1
under thi
days after
cannot rea
day period
such failure,
extent permitted by la
equity, including the rigl"
ns
(?�1' Come c Df
covenants c
eement, and tl�+
sona�notice in
e cured wit
shall �`" comme
re said fate shall
ART;;L 12
EFA
ereby authorizes the City Manager
p iance with Ap�cable Laws and
ancillary documents necessary to
oregoing, (a) each Party shall have
of , ocuments which it is asked to
chany rights, duties or obligations
t In the'`o C t ,o the failure of the Conservancy to perform
ttons o: reements \vhich are to be performed by the Conservancy
ontinu e of such failure for a period of ninety (90) consecutive
uate d?i41 from the City (provided, however, if such failure
,ninety (90) days, and the Conservancy, within said ninety (90)
d and thereafter continued diligently to prosecute the cure of
constitute a default hereunder), then the City, to the fullest
e the right to pursue any and all remedies available at law or in
terminate this Agreement as to the Conservancy after providing
thirty (30) days notice, sue for and collect damages and to specifically enforce the rights of the
City, and to enjoin the Conservancy.
12.02 City Default. To the extent allowed by Applicable Laws, 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 ("City Default"), 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 City, within such ninety
(90) day period, shall have commenced and thereafter continued diligently to prosecute the cure
#4435018 v8
29
respect to performance, manner or ti
its own obligation under this Agreeme
with respect to the particular obligations`
a waiver in any respec to any o
applicable to alleges
the alleged default in
presiding authority ren
in default, tier period s
this Age;
damages,
caused by
Furthermore,
party claims
`zits s`li`
rbitrati
a decis
anent for any sir
contract, tort of
0� 1 lting from th
tl tr imitation of
available at law or
'al, in
‘e•therwi
ole or
e tolle
other
in the pro
of such failure, said failure shall not constitute a default hereunder), then the Conservancy, 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 after providing thirty (30) days
notice to the City, sue for and collect damages and to specifically enforce the rights of the
Conservancy asserting the default, and to enjoin the City. The City expressly reserves its
immunities, priveledges, defenses and immunities as a Florida municipal corporation.
12.03 Force Majeure. For the purpose of any of the provisions of this Agreement,
neither the City (including the City Manager) nor the Conservancy, as the case may be, shall be
considered in breach of or in default in any of its obligations ter this Agreement in the event
of Force Majeure. All Force Majeure events must persist o4, d the reasonable control of the
party asserting the delay. In the event of the occurrences F any such Unavoidable Delay, the
time for the performance of the covenants and provision r <i;' greement shall be extended for
the period of Force Majeure.
12.04 Obligations, Rights and Rem
remedies of the Parties, whether provided a
cumulative. The exercise by any Party of any
the exercise by it, at the same or different times, o
or for any other default or breach b other Par
y obligatio
ronsidere
arty or
umulative; Cu
in equity or under
;or more . f uch reme
h h remedies fa
eriods. The rights and
greement, shall be
hall not preclude
he same default
waiver made by either Party with
ny other Party or any condition to
aiver of any rights of said Party
dition to its own obligation, or
All notice and cure periods
ant tip arty challenges the existence of
roceeding ° til the date that the arbitrator or
ding, at with time, if such Party is found to be
any oth
r rights*
In no e a1"1 any Party be liable under any provision of
t, incident ` , consequential, exemplary, treble or punitive
hether or not provided by statute and whether or not
current negligence or intentional acts of such Party.
bility herein shall not apply to any indemnification for third
ressly provided in this Agreement.
ARTICLE 13
PARTY REPRESENTATIVES
13.01 Designation of City Representative, The "City Representative" shall be the
Director of the Planning and Zoning Department or such other City Administrator as the City
Manager may designate from time to time. . The City Representative shall act as liaison and
contact person between the Conservancy and the City in administering and implementing the
terms of this Agreement. The City Representative shall have the power, authority and right, on
behalf of the City, and without any further resolution or action of the Board, except as otherwise
specifically provided in this Agreement, and so long as such actions or approvals do not cause
#4435018 v8
30
the expenditure of any City funds, violate Applicable Law, [and/or violate the Resolution], to do
any of the following:
(a) review, approve and consent, in writing, to documents, plans, applications,
and requests required or allowed by the Conservancy to be submitted to the City Representative, the
City pursuant to this Agreement, including the Design Documents and forms of the Architect
Contract or Construction Management Contract;
(b) consent to and approve, in writing, actions, events and undertakings by the
Conservancy or other Persons for which consent and/or appval is required from the City
Representative, the City under this Agreement;
(c) sign any and all documents on bell
the foregoing approvals, consents and appointments a
manner; and
(d) grant written extensions d`
to 120 days and that do not otherwise materially
or the City under this Agreement.
Any consent, approval, dec
Representative shall be binding on the
the City in connection with this Agree
and shall be fully protect t relying upon
bind the City in any The City
of the provisions of'
13.02
represents
between:
Agrees
behalf o`
except as of
Designatio
onsery
The Con
Conservanc
ise specifics
(a)
required or allowed
pursuant to this Agreeme
Construction Management
City necessary or convenient to
said document in a timely
e that extend deadli
aff t •the right ,or obligat o
r time periods by up
f the Conservancy
determinaiir .k_under this Agreement by the City
Conserva = 4nd any other Person dealing with
tter go d by this Agreement may rely
epresentative to act for and
epfesentative to comply with all
servancy l presentative. The Conservancy shall name a
ive")x who shall act as liaison and contact person
ity in ad i ring and implementing the terms of this
,esentativc s all have the power, authority and right, on
any further resolution or action of the Conservancy,
rovide 1 this Agreement to do any or all of the following:
e and consent to documents, plans, applications, and requests
presentative, the City to be submitted to the Conservancy
gig Design Documents and forms of the Architect Contract or
.t;
(b) consent to and approve actions, events and undertakings by the City
Representative or the City or other Persons for which consent and/or approval is required from the
Conservancy under this Agreement;
(c) sign any and all documents on behalf of the Conservancy necessary or
convenient to the foregoing approvals, consents and appointments and shall sign such documents in
a timely manner.
#4435018 v8
31
Any consent, approval, decision, determination, waiver or amendment under this
Agreement by the Conservancy Representative shall be binding on the Conservancy. The City
and any other Person dealing with the Conservancy in connection with this Agreement or any
matter governed by this Agreement may rely and shall be fully protected in relying upon the
authority of the Conservancy Representative to act for and bind the Conservancy in any such
matter. The Conservancy shall cause the Conservancy Representative to comply with all of the
provisions of this Agreement.
ARTICLE 14
MISCELLANEOUS PROVISI'i
14.01 Sovereign Rights. The City shall retai overeign prerogatives and rights
as a municipality under State law with respect tuse Park Project. It is expressly
understood that:
(a) The City retains all of itssv ereign prerogatives pan Frights arid regulatory
authority (quasi-judicial or otherwise) as a mun i� corpora, on under St jaw and shall in no
s " from withholdi or refusing to
way be estopped by virtue of its execution of this gxee
issue any approvals in its municip re .ulatory cap �' applications for l Ming, zoning,
planning or development under prese or tut�re laws and ulations whatever nature applicable
to the planning, design, constructions d d elgpment o = c Museum Park Project, or the
operation thereof, or be liable for the sa
(b) T;
entered into by the ii
the Conservancy any na
under presenty or future
design, c
Agreeme
be containe
authority, com
waivers, or an
City in its m p
exercise of its police po
relating t
raa vals o`
f ar
not by to h reenient or any other agreement
e, be ob` , d in its mu itipal regulatory capacity to grant
pplication r building, zoning, planning or development
nces o r. hatever nature applicable to the planning,
Ferlion s the Project.
(c) Not vvi and ng
y covenant a 'bligatio
this Agreet-shall
e or agency t�
y o pprovals 1
umci e ulator
nd preva ing over any contrary provision in this
the City in its municipal regulatory capacity that may
'nd the City Commission or any City department or
F�,
grant or leave in effect any zoning changes, variances, permits,
t may be granted, withheld or revoked in the discretion of the
capacity or other applicable governmental agencies in the
14.02 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.
14,03 Prevailing Laws and Venue, This Development 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,
#4435018 v8
32
covenants and conditions of this Agreement, or application of such term, covenant or condition
to persons or circumstances other than those as to which it is held invalid or unenforceable, shall
not be affected thereby and each term, covenant, or condition of this Agreement shall be valid
and be enforced to the fullest extent permitted by law. Venue for any action under this
Agreement not required to be resolved in Arbitration shall lie in the Circuit Court of the Eleventh
Judicial Circuit in and for Miami -Dade County, Florida. Administrative Resolution of Disputes.
The Parties will attempt to resolve any disputes under the Agreement in accordance with non-
binding mediation or arbitration in Miami — Dade -County in accordance with procedures the
Parties will agree to within thirty( 30) days of the final City or Conservancy decision as to such
dispute,
14.04 Waiver of Jury Trial. The Parties hereby
and intentionally waive any right such Party may hav
proceeding or counterclaim based on this Agreemept r` arisen
with this Agreement or any amendment or s ication of t
agreement executed by and between the Parti onnection with thl
of conduct, course of dealing, statements (wla er verbal or written)
hereto. This waiver of jury trial provision is a niterial inducement to t
this Agreement.
14.05 Notices. Any notice
and shall be deemed sufficiently giver i
mail, postage prepaid, return receipt re
service, to the appro
representatives as s
which the other part
In thered
arty or e
at the a
otified i
on:
versa
nd Av
owingly, irrevocably, voluntarily
by jury in respect of any action,
-out of, under or in connection
Agreement, or any other
reement, or any course
ctions of any Party
sties to enter into
nication uthis Agreement shall be in writing
•vered or'dtched by United States certified
ational .ecognized overnight delivery
espc t Fc counsel and authorized
ow or at such other address of
anager
,wilding, 10th Floor
ng:
ication to the City, to:
ida 33130
mi
Mimi riverside Building, 9th 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
#4435018 v8
33
(c)
Attention:
In the case of a notice or communication to the Conservancy, to:
Museum Park Conservancy
c/o The Miami Foundation
40 N,W. 3'd Street, Suite 305
Miami, Florida 33128
Attention: Rebecca Mandelman, Vice President
With a copy to:
Stearns Weaver Miller Weissler
Alhadeff & Sitterson, P.A.
Attention: Richard E. Schat sq.
150 West Flagler Street, /2200
Miami, Florida 33130 .4
All notices shall be deemed received when t ally ered if deli d by hand or by a
nationally recognized overnight d It ery service all be deeme delivered upon
confirmation of receipt (or refusal) y elivery servx three (3) days following mailing in
the event mailed as provided above. : ti s of appro l .disapproval or default to be given
under this Agreement must be in writin g m tgiven aspavided in this Section.
14.06 Titles .oand Seeseveral parts, Articles and
Sections of this A=x ement a nserted or c enience of reference only and shall be
disregarded in constru kor interp ng any o : s provisions.
14Q ift> ter
each of
instru
'eement is executed in several counterparts,
which shall constitute one and the same
14 f18Successors add ,Assi n All of the covenants, conditions and obligations
contained in t is Agreement h 1 be bidding upon and inure to the benefit of the respective
successors and as'rs of the Ps.
14.09 Constr Interpretation. Reference to any Article, section, paragraph,
exhibit, or subpart thereo mess otherwise provided, shall refer to this Agreement. Use of the
term "including" shall meancluding, 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.
14.10 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
#4435018 v8
34
responsible for its own attorneys' fees and court costs, including fees and costs incurred at trial
level and on appeals.
14,11 Entire Agreement. This Development 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,
14,12 Incorporation of Provisions of the Leases by erence, The provisions of the
Leases are incorporated into this Agreement by reference,.
14,13 Assignments. This Agreement may
any party, without the express prior written c
considered unique in nature as is the relations
be withheld, refused, conditioned or delayed.
14,14 Severability. If any term or provisi
to any person or circumstance shalt y extent, b
this Agreement or the application o3 er or provi
than those as to which it is held invalid of iin � p�rceable, s
term and provision of this Agreementall by ad and
permitted by law.
14,15 Nonr
prevailing over any ctii
criminal acts with respect
prosecuted rconvic
memb
any w
or person
Personnel
this Section
specific p
document executed
in no event require th
contributions), (b)
of assi `'� either in whole or in part, by
t of the otli;`- arty. This Agreement is
the parties and ent to Assignment may
reement or the plication thereof
or unenforceable, Elie remainder of
o the persons or circumstance other
,not be affected thereby, and each
enforced to the fullest extent
;y of thei� rvancy Personnel. Notwithstanding and
on or imiy tion in this Agreement and except for their
ent (i,e. acts which would constitute crimes were they
he officers, directors, partners, shareholders,
the Con ,ncy (the "Conservancy Personnel") shall not in
t to this Agreement; and no deficiency or other monetary
ind sl be sought or entered against any of the Conservancy
y unde`" ;� with respect to this Agreement. The limitations of
iy limit the City's rights as provided in this Agreement (a) to
very provision of this Agreement or in any other instrument or
ith this Agreement (provided that specific performance shall
ncy or the Conservancy Personnel to make additional capital
e damages against the Conservancy for any breaches of this
Agreement (provided that collection of damages is subject to the restrictions of this provision),
or (c) to enforce remedies against all assets of the Conservancy.
ploye srd alter.
3e liable unde�i
' udgment of any
w�tl�respect to liab
1 shall in no
erformc�f each a
to rec+
14,16 Non -Recourse Liability of City Personnel. Notwithstanding and prevailing over
any contrary provision or implication in this Agreement or in any other instrument or document
executed in connection with this Agreement, except for their criminal acts with respect to this
Agreement (i,e., acts which would constitute crimes were they prosecuted for and convicted of
such acts), no member, elected or appointed official, officer, employee, agent, independent
contractor or consultant of the City ("City Personnel") shall be liable for any of the City's
#4435018 v8
35
obligations under this Agreement or any instrument or document executed in connection with
this Agreement. Except for their criminal acts with respect to this Agreement (i.e., acts which
would constitute crimes were they prosecuted for and convicted of' such acts), no City Personnel
shall be liable to the Conservancy, or any successor in interest to the Conservancy, for any
amount which may become due to the Conservancy or any successor in interest to the
Conservancy, or for any other obligation, under the terms of this Agreement. The limitations of
this Section 14.16 shall in no way limit the Conservancy's rights as provided in this Agreement
(a) to specific performance of each and every provision of' this Agreement or in any other
instrument or document executed in connection with this Agreement, (b)) to recover damages
against the City for any breaches of this Agreement (prove d that collection of' damages is
subject to the restrictions of this provision), or (c) to enforcremedies against the City.
14.17 Exculpation of The Conservancy er acknowledges that: (i) The
Conservancy is acting as a developer and is not a li s , contrnor an architect or engineer;
(ii) The Conservancy will not be performing an 1 design se r loes, construction services or
any activities that only duly licensed contract o hitects or enginee an perform in the State
of Florida; and (iii) The Conservancy will not ontrol the means andctk ods of construction;
The Conservancy shall not be responsible for (i) the quality c mpleteness, a curacy or utility of'
the programs, schedules, Construction Schedule; ) p rawings, desi `n specifications,
samples or data of any architects, ° tiers, surveyor' , F Construction Manager (or general
contractor), testing laboratories or o ltants and n professionals for the Project, or
the failure of any of such parties to cart ut t ork or se ces furnished in connection with
the Project in accordance with their respective a tints with to City (or otherwise), (ii) the
construction means tithed ` techni a se 1 or io,cedures employed the
� q � � �� P �by
Construction Mana ere of ntracto g � y ye �� that •z,hes labor, materials, services or
equipment in connectionwith or to the Project` failure of e Construction Manager to carry
out its work in accordancwith tl onstructio 3 ntract or other documents relating thereto, or
any variance et een t e s t ;'a Schedule and the actual time within which the
Construct ta a� m 1t1e cons t n o' the Project, (iii) Force Ma eure; or iv any
other = is facts o eiscums : ` es beyond ate reasonable control of The Conservancy
includi hut not limited t ,, change : fin market conditions, changes in labor prices, material
price esca a s and the lik
#4435018 v8
URES ON FOLLOWING PAGE]
36
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by appropriate officials of each of then, as of the data first above written.
Attest:
"CITY"
THE CITY OF MIAMI, a municipal corporation of
By: the State of Florida
, City Clerk
Approved as to legal form and
correctness:
By:
Approved as ranee Requirements
By: By:
, CityAttorneyx r
�� , Ri"� Management Administrator
Witnesses: "CO
Print Name:
Print Name:
#4435018 v8
USEUMT' CONSERVANCY INC., a Florida
-for-profit oration
37
EXHIBIT "A"
LEGAL DESCRIPTION OF MUSEUM PARK
#4435018 v8
Exhibit "A"
Legal Description of Museum Park
38
EXHIBIT "B"
LEGAL DESCRIPTION OF PARK COMPONENT
#4435018 v8
Exhibit "B"
Legal Description of Park Component
39
EXHIBIT "C"
DESCRIPTION OF EXISTING FACILITIES
#4435018 v8
Exhibit "C"
Description of Existing Facilities
40
EXHIBIT "D"
PROVISIONS RELATING TO CONCESSIONS AGREEMENTS
#4435018 v8
Exhibit "D"
Provisions Relating to Concessions Agreements
41
SWMWAS Draft of September 3, 2015
BY-LAWS
Of
MUSEUM PARK CONSERVANCY, INC.
(A Florida Not For Profit Corporation)
ARTICLE I
NAME AND PRINCIPAL OFFICE
The name of this corporation shall be Museum Park Conservancy, Inc., (hereinafter
called the "Corporation"). The principal office of the Corporation shall be located in Miami -
Dade County, Florida.
ARTICLE II
PURPOSES AND MISSION
The Corporation is organized exclusively for the purpose of: (i) the enhancement,
development, improvement and operation of the park space in downtown Miami, Florida known
as "Museum Park" which is owned by the City of Miami, Florida and located in Tract "A" of
Museum Park, as recorded in [Plat Book169, Page 27]1 of the Public Records of Miami -Dade
County, Florida (hereinafter, "Museum Park"), including all real property, infrastructure, public
rights of way and submerged lands that abut such property and over which the Corporation may
in the future obtain control or operational authority; and (ii) fulfilling such other purposes as the
Board of Directors of the Corporation shall from time to time determine to be in furtherance of
the Corporation's charitable and educational purposes so far as may be permitted by the laws of
the State of Florida. The Corporation shall not engage in any activity not permitted to be carried
on by a corporation exempt from taxes under Section 501(c) (3) of the Internal Revenue Code of
1986, as the same may be amended from time to time, and its Regulations as the same now exist,
or as they may be hereafter amended from time to time, or any corresponding section of any
subsequent federal tax law.
ARTICLE III
NO MEMBERS OR MEMBERSHIPS
The Corporation shall not have any voting members.
ARTICLE IV
BOARD OF DIRECTORS
4.1. General Powers. Subject to the provisions and limitations of the Florida Not For
Profit Corporation Act, Florida Statutes Chapter 617 (the "Act"), and any other applicable laws,
1 To confirm.
the activities and affairs of the Corporation shall be managed, and all corporate powers shall be
exercised, by or under the direction of the Board of Directors of the Corporation (the "Board").
4.2. Specific Powers. Without prejudice to the general powers set forth in these By -
Laws and the Articles of Incorporation of the Corporation (the "Articles of Incorporation"), but
subject to the limitations contained therein and in the Act, the Board shall have the power to do
the following:
(a) Appoint and remove, at the pleasure of the Board, all corporate officers, agents, and
employees, prescribe powers and duties for them as are consistent with the law, the
Articles of Incorporation and these By -Laws and fix their compensation.
(b) Change the principal office or the principal executive office from one location to
another within the City of Miami, Florida.
(c) Borrow money and incur indebtedness on the Corporation's behalf and cause to be
executed and delivered for the Corporation's purposes, in the corporate name,
promissory notes, bonds, debentures, deeds of trust, mortgages, pledges,
hypothecations, and other evidences of debt and securities.
(d) Adopt and use a corporate seal and alter the form of the seal.
(e) Elect the Community Representative Directors to a specific term and in accordance with
Section 4.6 by a majority of the Directors then in office at a regular or special meeting
of the Board, or in accordance with Section 4.7 if the remaining Directors constitute less
than a quorum. Notice of any such meeting shall include notice of such election.
(f) Adopt compensation, conflicts of interest and other policies that are deemed necessary
by the Board from time to time to facilitate the management and operation of the
Corporation or to maintain the tax-exempt status of the Corporation.
(g) Adopt, amend, modify or repeal the Articles of Incorporation and these By -Laws.
(h) Create standing or ad hoc committees of the Corporation.
4.3. Initial Members of the Board. The initial members of the Board shall be those
persons named as Directors in the Organization Action of the Incorporator of the Corporation,
each of whom shall remain a Director until the election and qualification of her or his successor
or her or his earlier death, resignation or removal.
4.4. Qualification of Directors.
(a) General Qualifications of Directors. Board members shall be chosen with a view
toward maintaining a balanced Board, all of whom shall possess the skills and experience which
contribute to the vision, mission and purpose of the Corporation.
Page 2 of 14 Pages
(b) Special Qualifications of Appointed and Community Representative Directors.
The members of the Board who are Appointed Directors and Community Representative
Directors (as such terms are defined below) shall be broadly representative of the City of Miami,
Florida community and constituencies to be served by the Corporation and be composed of
individuals who reflect the diversity and the full range of issues and interests to be served by
Museum Park and who have direct experience or understanding of the constituencies and
community intended to benefit from the Corporation's and Museum Park's facilities, operation
and activities. In addition, Appointed Directors and Community Representative Directors shall
be persons who are willing to devote time, professional knowledge, personal influence or a
combination of the foregoing to attain the goals of the Corporation and shall be selected based on
their ability to do the following:
(i) To volunteer their specialized business expertise, advice and guidance to working
committees of the Corporation when needed;
(ii) To spearhead and reinforce all community and public relations work of the
Corporation; and
(iii) To liaise with the Commissioners of the City Commission of the City of Miami
and their staff, the City of Miami Parks and Recreation Department, the Jorge M. Perez
Art Museum of Miami -Dade County, Inc., the Philip and Patricia Frost Museum of
Science, the Adrienne Arsht Center for the Performing Arts of Miami -Dade County,
Bayfront Park Management Trust Corporation, Inc., The Friends of Museum Park, Inc.
("FOMP"), and neighborhood constituencies to be identified by the Board from time to
time.
4.5. Number, Appointment and Election. The Board shall consist of a minimum of ten
(10) Directors and a maximum of fifteen (15) Directors, Within such limits, the number of
Directors may be increased by a majority vote of the Directors then in office, Commencing with
the first Annual Meeting of the Board, Directors shall be selected as follows:
(a) The Mayor of the City of Miami shall appoint one (1) Director.
(b) The City Commission of the City of Miami shall appoint one (1) Director
(c) The City Manager of the City of Miami shall appoint one (1) Director.
(d) FOMP shall appoint seven (7) Directors (persons appointed pursuant to clauses (a)
through this clause (d) are referred to herein as "Appointed Directors").
(e) These ten (10) Directors shall elect up to an additional five (5) Directors (each, a
"Community Representative Director") who represent the interests and diversity of
the City of Miami at large.
(f) The Executive Director of the Corporation shall serve as an ex-officio, non -voting
Director and may attend meetings of the Board of Directors and shall not be subject
to Sections 4.6, 4.7 or 4_9.
4.6. Terms of Directors. Directors shall be appointed at the first annual meeting
following the filing of the Articles of Incorporation. Directors shall hold office as follows:
Page 3 of 14 Pages
(a) The Director appointed by the Mayor of the City of Miami shall serve a term which shall
be the shorter of four (4) years or end concurrently with the last day of the term of the
Mayor. If the Mayor is reelected to office, she/he must officially appoint, or re -appoint
if desired, a Director as his/her appointee for the new term, pursuant to the process set
forth in these By -Laws.
(b) The Director appointed by the City Commission of the City of Miami shall serve for a
term of two (2) years and may succeed herself or himself as a Director if re -appointed.
(c) The Director appointed by the City Manager of the City of Miami shall serve for a term
of two (2) years and may succeed herself or himself as a Director if re -appointed.
(d) The seven Directors appointed by the FOMP shall serve for the following initial terms:
Two (2) shall be appointed to serve a term of one (1) year, two (2) shall be appointed to
serve a tern of two (2) years, and three (3) shall serve a term of three (3) years. All
subsequent appointments or reappointments by FOMP shall be for a term of three (3)
years. No such Director shall be appointed for more than two (2) consecutive terms, but
any such Director may serve for any number of non-consecutive terms.2
(e) Upon the expiration of a Director's term, that Director shall remain on the Board of
Directors until such time as he or she is replaced or is re -appointed by the appropriate
appointing authority.
(f) The Community Representative Directors shall serve for terms of two (2) years and until
her or his successor is appointed and qualified, or until her or his earlier death,
resignation or removal, but shall not be limited to any maximum number of terms.
4.7. Vacancies. In the event of a vacancy on the Board, the remaining Directors, even
though less than a quorum, may exercise the powers of the Board until the vacancy is filled. Any
vacancy in a Community Representative directorship, however occurring, may be filled by the
affirmative vote of a majority of the Directors then in office. Any vacancy in any other
directorship shall be filled by a person appointed by the person or organization which appointed
the Director whose directorship has been vacated. The replacement Director shall hold office for
the unexpired term her or his predecessor in office.
4,8. Resignation. Any Director may resign by delivering her or his written resignation
to the Corporation at its principal office to the attention of the Board. Such resignation shall be
effective upon receipt unless it is specified to be effective at some other time or upon the
happening of some other event, The Board reserves the right to determine the effective date of
any resignation it receives from a sitting member of the Board.
4.9, Removal from Office. Appointed Directors may be removed from office, with or
without cause, at any time by the person or organization that appointed the removed Director. A
Community Representative Director may be removed from office at any time, with or without
cause, by the affirmative vote of the Directors then in office.
4.10. Annual Meetings. The Board shall determine the date, hour, place and manner of
conducting the annual meeting of the Directors of the Corporation, provided that such meeting is
2 Note that a director appointed for an initial 1- or 2- year term cannot serve for two consecutive 3-year terms unless
we create exceptions for those directors which would allow for maximum initial terms of 7 and 8 years as to them
only,
Page 4 of 14 Pages
scheduled to occur within six (6) months after the end of the fiscal year of the Corporation, The
purposes for which an annual meeting is to be held, in addition to those prescribed by the Act,
the Articles of Incorporation or these By -Laws, may be specified by the Board or by the Chair of
the Board. If an annual meeting is not held in accordance with the foregoing provisions, a
special meeting may be held in place thereof with all the force and effect of an annual meeting.
4,11. Regular and Special Meetings. Regular meetings of the Board shall be held at
least quarterly at such places and at such times as the Board may from time to time determine,
provided that any Director who is not present at a meeting of the Board when such determination
is made shall be given notice of the determination, At regular meetings, the Directors shall
address the financial condition of the Corporation, agreements or relationships with the City of
Miami and other neighboring organizations and stakeholders, and such other issues as may be
brought before the Board by Directors or committees of the Board. Special meetings of the
Board may be held upon the oral or written call by the Chair of the Board, the President or two
(2) or more Directors, designating the date, hour and place thereof. Regular and special meetings
of the Board shall be held in Miami -Dade County, Florida.
4.12 Notice of Meetings. Notice of the time and place of all meetings of the Board
shall be given to each Director by: (a) personal delivery of written notice; (b) first-class mail,
postage prepaid; (c) telephone, including a voice messaging system or other system or
technology designed to record and communicate messages; or (d) by electronic transmission,
such as electronic mail or facsimile transmission, either directly to the Director or to a person at
the Director's office who would reasonably be expected to communicate that notice promptly to
the Director. All such notices shall he given or sent to the Director's address, e-mail address, or
telephone or facsimile number as shown on the Corporation's records. Notices of a meeting sent
by first-class mail shall be deposited in the United States mails at least ten (10) days, but not
more than thirty (30) days, before the time set for the meeting. Each notice shall state the time of
the meeting and the place, if the place is other than the Corporation's principal office. Except as
provided in Section 4.13 and Article X, the notice need not specify the purpose of the meeting.
4,13. Waiver of Notice, Notice of a meeting need not be given to any Director who,
either before or after the meeting, signs a waiver of notice, a written consent to the holding of the
meeting, or an approval of the minutes of the meeting. The waiver of notice or consent need not
specify the purpose of the meeting. All such waivers, consents and approvals shall be filed with
the corporate records or made a part of the minutes of the meetings. Notice of a meeting need
not be given to any Director who attends the meeting and who, before or at the beginning of the
meeting, does not protest the lack of notice to her or him.
4,14. Quorum; Telephonic Meetings. At any meeting of the Board, a majority of the
Directors then in office shall constitute a quorum. Directors constituting less than a quorum may
adjourn any meeting from time to time, and the meeting may be held as adjourned without
further notice. One or more Directors may participate in a meeting by means of a conference
telephone or similar communications equipment by means of which all persons participating in
the meeting can communicate with each other at the same time. Participation in a meeting
pursuant to the foregoing sentence shall constitute presence in person at such meeting.
Page 5 of 14 Pages
4.15. Action at Meeting. At any meeting of the Board at which a quorum is present, a
majority of the Directors present may take any action on behalf of the Board except to the extent
that the Act, the Articles of Incorporation or these By -Laws require a larger number.
4.16. Action Without a Meeting. Any action required or permitted to be taken at a
meeting of the Directors or any committee thereof, or any action which may be taken at a
meeting of the Directors or a committee thereof, may be taken without a meeting if all Directors
or members of such committee, as the case may, consent in writing or by electronic transmission,
setting forth the action so to be taken, and the writings or electronic transmissions are filed in the
minutes of the proceedings of the Board or of the committee. Such consent shall have the same
effect as a unanimous vote.
4.17. Committees. The Board shall appoint as standing committees of the Board the
following: (i) an Executive Committee, (ii) a Committee on Directors and Governance, (iii) a
Finance and Audit Committee, and may appoint one or more other committees. The Board also
may delegate to the Executive Committee some or all of its powers except those which, under
the Act, the Articles of Incorporation or these By -Laws, it is prohibited from delegating. In no
event shall the Board delegate to any committee established by it the following powers:
(a) To change the principal office of the Corporation.
(b) To adopt, amend or repeal the Articles of Incorporation or By -Laws of the
Corporation.
(c) To elect officers or fill vacancies in any such offices.
(d) To change the number of persons constituting the entire Board, or fill vacancies
on the Board.
(e) To remove officers from office or Directors from the Board.
(f) To authorize a merger, sale of substantially all assets or dissolution of the
Corporation.
The Board in its vote authorizing the establishment of a committee, or by subsequent Board
action, shall appoint the persons to constitute the members thereof, All members of the
Executive Committee shall be voting Directors. Any additional committees that are created by
the Board may be comprised of persons who are not Directors, but who shall be entitled to vote
at such committee meetings, At least two (2) Directors shall be appointed to each committee.
The Chair of each such committee shall be a Director, Except as the Board may otherwise
determine, any such committee may make rules for the conduct of its business, but, unless
otherwise provided by the Board or in such rules, its business (including the keeping of a record
of its meetings), shall be conducted as nearly as may be practicable in the same manner as is
provided by these By -Laws for the Board, including the ability to participate in meetings
telephonically and to act by written consent in lieu of a meeting as provided in this Article IV.
Each such committee shall report its action to the Board, which shall have the power to ratify,
rescind or amend any action taken. However, in the case of the Executive Committee, no such
rescission shall have retroactive effect.
Page 6 of 14 Pages
4.18. Inspection Rights of Directors. Every Director shall have the absolute right, upon
reasonable notice and at any reasonable time, to inspect and copy all books, records, and
documents, and to inspect the physical properties of the Corporation.
4.19. Compensation of Directors. Directors shall serve as Directors without
compensation from the Corporation but may receive reimbursement for the costs of attending
meetings of the Board as the Board shall determine from time to time.
ARTICLE V
STANDING COMMITTEES
The standing committees of the Corporation, their composition and duties shall be as
follows:
5.1. Executive Committee.
5,1.1. Composition. The Executive Committee shall consist of the Chair of the Board,
the Vice Chair of the Board, the President of the Corporation (if the President is a Director) and
such other voting members of the Board as the Board may from time to time determine, but in no
event shall there be less than three (3) or more than five (5) members. Not less than a majority
of the Executive Committee shall be composed of Directors appointed by FOMP. If the Chair or
Vice Chair of the Board is also the President, the Board shall appoint another Director as a
member of the Committee, Voting Directors who are not members of the Executive Committee
shall receive notice of all meetings of the Executive Committee and may attend its meetings and
participate in its deliberations, but only Executive Committee members shall be entitled to a vote
on matters as to which a vote of the Executive Committee may be required or permitted. The
Executive Director of the Corporation may attend meetings of the Executive Committee unless
otherwise determined by the Executive Committee with respect to any given meeting. The
Executive Committee shall adhere to the same quorum requirements as the Board.
5.1.2. Duties. The Executive Committee shall meet on the call of the Chair of the Board
or any two of its members and shall conduct the business of the Corporation when it is not
convenient for the full Board to meet or as the Board may from time to time authorize.
5.2 Committee on Directors and Governance.
5.2.1. Composition, The Committee on Directors and Governance shall consist of three
(3) individuals, all of whom shall be Directors and two (2) of whole shall be Directors appointed
by FOMP and one (1) of whom shall be any other Appointed Director. The Board shall appoint
the Committee on Directors and Governance from among the Directors. The Chair of the Board
shall designate the Chair of the Committee on Directors and Governance. The members of the
Committee on Directors and Governance shall be appointed for a term of one (1) year. A
Director may be re -appointed to the Committee on Directors and Governance by the Board for
one additional term. Any vacancy in a Board member's position on the Committee on Directors
and Governance shall be filled by the appointment by the Board of a successor from among the
then members of the Board, who shall serve for the balance of the unexpired term.
Page 7 of 14 Pages
5.2.2. Duties. The principal duty of the Committee on Directors and Governance shall
be to submit to the Board, at least thirty (30) days in advance of each Annual Meeting, persons
whom the Committee on Directors and Governance recommends to the Board as eligible for
election as Community Representative Directors, either at the Annual Meeting or to fill
vacancies of Community Representative Directors on the Board subsequent to the Annual
Meeting for which the Committee on Directors and Governance's report is prepared and
submitted. In performing its duties, the Committee on Directors and Governance members shall
endeavor to recommend as nominees for possible election as Community Representative
Directors persons who are representative of the criteria for Board membership set forth in
Section 4.4(b).
5.2.3. Other Duties. In addition to the duties provided in subsection 5.2.2, the
Committee on Directors and Governance shall be responsible for recommending officer
nominations, recommendations for filling Director vacancies and the orientation of new
Directors. The Committee on Directors and Governance shall schedule and plan a Board retreat
each year to be held after 1 and before the Board's meeting. In furtherance
of the foregoing, the Committee on Directors and Governance shall endeavor to:
(a) Assess the performance of the Board and individual members;
(b) Review demographics of the Board and determine what skills, experiences and
relationships the Board needs to possess in considering new Director
appointments;
(c) Continually identify and cultivate Board candidates;
(d) Consider officer succession planning;
(e) Retain and integrate new Board members
(f) Recognize Board members; and
(g) Recommend to the Board removal of Directors and officers if necessary.
5.3 Finance and. Audit Committee. The Finance and Audit Committee shall be
chaired by the Treasurer and shall work with the Corporation's chief financial officer to oversee
the fiscal integrity, and ensure the financial solvency, of the Corporation. The Finance and Audit
Committee shall also work with the chief financial officer of the Corporation to establish the
annual budget. It shall select and approve the contract for the independent auditors of the
Corporation and make recommendations regarding the investment of capital funds, such as
endowment or reserve funds. The Finance and Audit Committee shall develop a charter of its
mission and responsibilities for approval by the Directors.
ARTICLE VI
OFFICERS
6.1. Designation. The officers of the Corporation shall consist of a Chair of the Board,
a Vice Chair of the Board, a President, a Treasurer and a Secretary. The officers of the
Corporation may include such other officers as the Board may determine, including one or more
Vice Presidents, Assistant Treasurers, and Assistant Secretaries.
Page 8 of 14 Pages
6.2. Election. The Chair of the Board, Vice Chair of the Board, President, Treasurer
and Secretary shall be elected annually by the affirmative vote of the Board at its Annual
Meeting. Other officers may be chosen and their terms designated by the Board at such Meeting
or at any other meeting.
6.3. Qualification. The Chair of the Board and one or more Vice Chairs of the Board
shall be elected from among the Directors. Any officer may be required by the Board to give
bond for the faithful performance of his/her duties to the Corporation in such amount and with
such sureties as the Board may determine.
6.4. Tenure. Except as otherwise provided by the Act, by the Articles of Incorporation
or these By -Laws, all officers shall hold office until the next Annual Meeting of the Board and
until their respective successors are appointed and qualified, unless a different term is specified
during the vote appointing them. Any officer may resign by delivering her or his written
resignation to the Corporation at its principal office to the attention of the Directors, and such
resignation shall be effective upon receipt unless it is specified to be effective at some other time
or upon the happening of some other event. The Board reserves the right to determine the
effective date of any resignation it receives from an officer of the Corporation.
6.5. Removal. The Board may remove any officer with or without cause, upon the
affirmative vote of the Board at a duly noticed meeting of the Board.
6.6. Vacancies. Any vacancy, however arising, in any office, may be filled for the
unexpired portion of the term thereof by the Board.
6.7. Chair of the Board and Vice Chairs of the Board. The Chair of the Board shall be
responsible for the agenda of, and shall preside at all, meetings of the Board and shall perform
such other duties and have such other powers as may be designated from time to time by the
Board. The Chair shall be a member of the Executive Committee and an ex-officio (without
vote) member of all other committees of the Corporation. Each Vice Chair of the Board shall
perform such duties and have such powers as may be designated from time to time by the Board,
including without limitation the performance of the Chair's duties in her or his absence,
6.8. President. The President shall be the Chief Executive officer of the Corporation
and shall, subject to the direction of the Board, have general supervision and control of the
business and affairs of the Corporation, shall perform such other duties, including those
contemplated by these By -Laws, and shall have such other powers as may be designated from
time to time by the Board. The President may, but need not be, a Director. If the President is a
Director, she or he shall be a member of the Executive Committee and an ex-officio (without
vote) member of all other committees, except the Committee on Directors and Governance, of
the Corporation. At any time when there shall be no President of the Corporation in office, the
Board shall appoint another person to serve as the acting President of the Corporation, until the
position can be permanently filled.
6.9. Treasurer and Assistant Treasurers. The Treasurer shall, subject to the direction of
the Board, have general charge of the financial affairs of the Corporation, shall cause to be kept
Page 9 of 14 Pages
accurate books of account of the affairs of the Corporation and of its accounting procedures. The
Treasurer shall have custody of all funds, securities, and valuable documents of the Corporation,
except as the Board may otherwise provide, and shall have general charge of valuable papers of
the Corporation.
6.10. Secretary and Assistant Secretaries. The Secretary shall attend and shall cause to
be kept a record of all the meetings of the Board. In addition, the Secretary shall perform such
other duties and have such other powers as may be designated from time to time by the Board.
Each Assistant Secretary shall perform such duties and have such powers as may be designated.
from time to time by the Board. In the absence of the Secretary from any meeting of the Board,
an Assistant Secretary, if one is chosen, otherwise a Temporary Secretary designated by the
person presiding at the meeting, shall perform the duties of the Secretary at such meeting. The
Secretary shall keep or cause to be kept, at the principal office of the Corporation in Florida, or if
that office is not in Florida at the office of the Resident Agent, the records of the Corporation.
6.11. Other Officers. Each other officer that may be elected by the Board shall perform
such duties and have such powers as may be designated from time to time by the Board.
6.12. Other Powers and Duties. Each officer shall, subject to these By -Laws, and in
addition to the duties and powers specifically set forth in these By -Laws, have such duties and
powers as are customarily incident to her or his office. The exercise of any power which by the
Act, the Articles of Incorporation, or these By -Laws, or under any vote of the Board, may be
exercised by an officer of the Corporation only in the event of absence of another officer or any
other contingency, shall bind the Corporation in favor of anyone relying thereon in good faith,
whether or not such absence or contingency existed.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
7.1. The Corporation, to the extent legally permissible, shall indemnify each person
who may serve or who has served at any time as a Director or officer of the Corporation or of
any of its subsidiaries, or who at the request of the Corporation may serve or at any time has
served as a trustee, Director, officer of, or in a similar capacity with, another organization or an
employee benefit plan, against all expenses and liabilities (including counsel fees at all levels,
judgments, fines, excise taxes, penalties and amounts payable in settlements), reasonably
incurred by or imposed upon such person in connection with any threatened, pending or
completed action, suit or other proceeding, whether civil, criminal, administrative or
investigative, in which such person may become involved by reason of serving or having served
in such capacity (other than a proceeding voluntarily initiated by such person unless he or she is
successful on the merits, the proceeding was authorized by the Corporation or the proceeding
seeks a declaratory judgment regarding her or his own conduct); provided that no
indemnification shall be provided for any such person with respect to any matter as to which he
or she shall have been finally adjudicated in any proceeding not to have acted in good faith in the
reasonable belief that her or his action was in the best interests of the Corporation or, to the
extent such matter relates to service with respect to any employee benefit plan, in the best
interests of the participants or beneficiaries of such employee benefit plan; and provided, further,
Page 10 of 14 Pages
that as to any matter disposed of by a compromise payment by such person, pursuant to a consent
decree or otherwise, the payment and indemnification thereof have been approved by the
Corporation, which approval shall not unreasonably be withheld, or by a court of competent
jurisdiction. Such indemnification shall include payment by the Corporation of expenses
incurred in defending a civil or criminal action or proceeding in advance of the final disposition
of such action or proceeding, upon receipt of an undertaking by the person indemnified to repay
such payment if he or she shall be adjudicated to be not entitled to indemnification under this
Article VII, which undertaking may be accepted without regard to the financial ability of such
person to make repayment.
7.2. A person entitled to indemnification hereunder whose duties include service or
responsibilities as a fiduciary with respect to a subsidiary or other organization shall be deemed
to have acted in good faith in the reasonable belief that her or his action was in the best interests
of the Corporation if he or she acted in good faith in the reasonable belief that the action was in
the best interests of such subsidiary or organization or of the participants or beneficiaries of, or
other persons with, interests in, such subsidiary or organization to whom he or she had a
fiduciary duty.
7.3. Where indemnification hereunder requires authorization or approval by the
Corporation, such authorization or approval shall be conclusively deemed to have been obtained,
and in any case where a Director of the Corporation votes to approve the payment of
indemnification, such Director shall be wholly protected, if:
(a)
the payment has been approved or ratified (1) by a majority vote of a
quorum of the Directors consisting of persons who are not at that time
parties to the proceeding, or (2) by a majority vote of a committee of one
or more Directors who are not at that time parties to the proceeding and
are selected for this purpose by the full board (in which selection Directors
who are parties may participate); or
(b) the action is taken in reliance upon the opinion of independent legal
counsel (who may be counsel to the Corporation), appointed for the
purpose by vote of the Board or in the manner specified in this or the
preceding paragraph; or
(c)
the payment is approved by a court of competent jurisdiction; or
(d) the Directors have otherwise acted in accordance with the applicable legal
standard of conduct.
7.4. Any indemnification or advance of expenses under this Section shall be paid
promptly and in any event within 30 days, after the receipt by the Corporation of a written
request therefore from the person to be indemnified, unless with respect to a claim for
indemnification the Corporation shall have determined that the person is not entitled to
indemnification. If the Corporation denies the request or if payment is not made within such 30-
day period, the person seeking to be indemnified may at any time thereafter seek to enforce her
Page 11 of 14 Pages
or his rights hereunder in a court of competent jurisdiction and, if successful in whole or in part,
he or she shall be entitled also to indemnification for the expenses of prosecuting such action.
Unless otherwise provided by law, the burden of proving that the person is not entitled to
indemnification shall be on the Corporation.
7.5. The right of indemnification under this Article shall be a contract right inuring to
the benefit of the Directors, officers and other persons entitled to be indemnified hereunder and
no amendment or repeal of this Article shall adversely affect any right of such Director, officer
or other person existing at the time of such amendment or repeal.
7.6. The indemnification provided hereunder shall inure to the benefit of the heirs,
executors and administrators of a Director, officer or other person entitled to indemnification
hereunder. The indemnification provided hereunder may, to the extent authorized by the
Corporation, apply to the Directors, officers and other persons associated with constituent
corporations that have been merged into or consolidated with the Corporation who would have
been entitled to indemnification hereunder had they served in such capacity with or at the request
of the Corporation.
7.7. The right of indemnification under this Article shall be in addition to and not
exclusive of all other rights to which such Director, officer or other person may be entitled.
Nothing contained in this Article shall affect any rights to indemnification to which Corporation
employees or agents, other than Directors, officers and other persons entitled to indemnification
hereunder, may be entitled by contract or otherwise by law.
7.8. If this Article or any portion of it is invalidated on any ground by a court of
competent jurisdiction, the Corporation nevertheless indemnifies each Director, officer or other
person entitled to indemnification hereunder to the fullest extent permitted by all portions of this
Article that have not been invalidated and to the fullest extent permitted by law.
ARTICLE VIH
PARLIAMENTARY AUTHORITY
The Board and each Committee shall establish its own rules for the conduct of its
meetings. Robert's Rule of Order shall not govern meetings of the Board or Committees unless
otherwise determined by the Board or such Committee with respect to its own meetings.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1. Fiscal Year. Except as from time to time otherwise determined by the Board, the
fiscal year of the Corporation shall commence on the first day of October 1 (excluding the
Corporation's first year of incorporation) and end on the last day of September in each year.
9.2. Seal. If the Board determines to adopt a seal of the Corporation, such seal shall,
subject to alteration by the Board, bear its name, the words "Museum Park Conservancy, Inc."
and year of its incorporation.
Page 12 of 14 Pages
9.3. Execution of Instruments. All deeds, leases, transfers, contracts, bonds, notes and
other obligations authorized to be executed by an officer of the Corporation in its behalf shall be
signed by the Chair of the Board, the President or the Treasurer except as the Board may
generally or in particular cases otherwise determine,
9.4. Voting of Securities. Except as the Board may otherwise designate, the President
or Treasurer may waive notice of and act on behalf of the Corporation, or appoint any person or
persons to act as proxy or attorney in fact for the Corporation (with or without discretionary
power and/or power of substitution), at any meeting of incorporators or shareholders or
beneficial owners of any other corporation or organization, any of the securities of which may be
held by the Corporation.
9.5. Corporate Records. The original or attested copies, of the Articles of
Incorporation, these By -Laws, and records of all meetings of the Directors, which shall contain
the names and the record address of all Directors and officers, shall be kept in Florida at the
principal office of the Corporation or at an office of its Secretary, or Resident Agent. Said
copies and records need not all be kept in the same office. They shall be available at all
reasonable times for the inspection by any Director or officer for any proper purpose, but not to
secure a list or other information for the purpose of selling or distributing said list or information
or copies thereof or of using the same for a purpose other than in the interest of the applicant, as
a Director or officer, relative to the affairs of the Corporation. Except as may be otherwise
required by the Act, by the Articles of Incorporation, or by these By -Laws, the Corporation shall
be entitled to treat the record address of a Director or officer as shown on its books as the address
of such person for all purposes, including the giving of any notices; and it shall be the duty of
each such person to notify the Corporation of her or his latest post office address.
9.6. Conflict of Interest. The Board shall adopt a written conflict of interest policy,
which it shall review and publish annually, All members of the Board of the Corporation, all
officers and all employees of the Corporation are required to acknowledge written receipt of their
annual copy. Failure to comply with the conflict of interest policy is grounds for immediate
termination from the Corporation.
9.7, Evidence of Authority, A certificate executed by the Secretary or an Assistant
Secretary as to any action taken by the Directors or any officer or representative of the
Corporation shall, as to all who rely thereon in good faith, be conclusive evidence of such action.
9.8. Ratification. Any action taken on behalf of the Corporation by a Director or any
officer or representative of the Corporation which requires authorization by the Board shall be
deemed to have been duly authorized if subsequently ratified by the Board, if action by it was
necessary for authorization.
9.9. Articles of Incorporation. All references in these By -Laws to the Articles of
Incorporation shall be deemed to refer to the Articles of Incorporation, as amended, and in effect
from time to time,
Page 13 of 14 Pages
9.10. Construction, Unless the context requires otherwise, the general provisions, rules
of construction and definitions in the Act shall govern the construction of these By -Laws.
Without limiting the generality of the preceding sentence, the masculine gender includes the
feminine and neuter, the singular includes the plural, the plural includes the singular. References
in these By -Laws to "Articles" and "Sections" are to Articles and Sections of these By -Laws
unless the context indicates otherwise.
ARTICLE X
AMENDMENTS
The power to make, amend or repeal these By -Laws, in whole or in part, shall be in the
Board. Such power may be exercised by the Board by vote of a majority of the Directors then in
office. Notice as to all proposed amendments shall be given to Directors at least ten (10) days
prior to the Board acting upon any such proposed amendment.
ARTICLE XI
EFFECTIVE DATE
These By -Laws are in effect until the initial board meeting of the Corporation which will
be held in the month of [ , ], 2015 at which time the Board will review and discuss for the
purpose of formally adopting them and are effective from and after the close of such meeting and
until further amended by the Board as provided in ARTICLE X above.
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ARTICLES OF INCORPORATION
OF
MUSEUM PARK CONSERVANCY, INC.
The undersigned, a natural person over the age of 18, hereby files these Articles of
Incorporation of MUSEUM PARK CONSERVANCY, INC. (hereafter referred to as the
"Corporation"), in compliance with Chapter 617, Florida Statutes, the Florida Not For Profit
Corporation Act (the "Act").
1.1
ARTICLE I
ORGANIZATION
Name. The Corporation shall be known as the Museum Park Conservancy, Inc.
1,2 Principal Office. The principal office of the Corporation shall be located in the
State of Florida at such place or places as the Board of Directors of the Corporation may from
time to time, designate. The initial principal office and mailing address of the Corporation, until
changed by the Board of Directors of the Corporation, shall be located at The Miami Foundation,
Inc., 40 N.W. 3rd Street, Suite 305, Miami, Florida 33128.
ARTICLE II
PURPOSES
The Corporation is a not for profit corporation organized to provide for the enhancement,
development and improvement of the park space in downtown Miami, Florida known as
"Museum Park" which is owned by the City of Miami, Florida and located in Tract "A" of
Museum Park, as recorded in Plat Book 169, Page 27 of the Public Records of Miami -Dade
County, Florida (hereinafter, "Museum Park"), including all real property, public rights of way
and submerged lands that abut such property and over which the Corporation may in the future
obtain control or operational authority.
The Corporation has been organized to plan, design, construct, operate and manage the
park space comprising Museum Park and will serve as the governing authority for such
activities. Museum Park and all improvements located or constructed thereon are, and will
continue to be, owned by the City of Miami, Florida. The Corporation will have the full and
exclusive authority to: employ one or more architects, landscape architects, and other consultants
to design and construct the infrastructure, landscaping, buildings and improvements within
Museum Parlc; employ construction and development managers or firms and supervise their
work; employ an Executive Director who will be responsible for day-to-day operational and
programmatic management of Museum Park and such other employees as the Corporation shall
deem appropriate. The Corporation will raise funds to accomplish and implement the foregoing
purposes and in that regard may enlist the assistance and support of The Friends of Museum
Park, Inc., a Florida not for profit corporation.
The Corporation shall operate exclusively for educational, cultural and charitable
purposes by conducting or supporting activities for the benefit of the development and operation
of Museum Park. Its activities shall be limited to exempt purposes described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended, or the corresponding provision of
any future United States Internal Revenue law (the "Code"). It may engage only in such
activities permitted under the laws of the State of Florida and the United States of America as
shall constitute activities in furtherance of such exempt purposes.
ARTICLE III
DURATION AND COMMENCEMENT OF EXISTENCE
The existence of Corporation will be perpetual.
ARTICLE IV
TAX EXEMPT STATUS AND LIMITATIONS
It is the express purpose of these Articles of Incorporation to limit the authority, powers
and purposes of the Corporation and to require the Corporation to conform to the limitations set
forth in the Code with reference to organizations which are organized and operated exclusively
for charitable, cultural and educational purposes within the purview of the Code, and nothing
herein shall be construed to grant to the Corporation any powers or purposes not contemplated
and authorized under the Code.
No part of the net earnings or assets of the Corporation shall inure to the benefit of, or be
distributable to, its directors, officers, members, or other private persons, except that Corporation
shall be authorized and empowered to pay reasonable compensation for services rendered and to
make payments and distributions in furtherance of any of its purposes. No substantial part of the
activities of Corporation shall be the carrying on of propaganda, or otherwise attempting, to
influence legislation, and the Corporation shall not participate or intervene in (including the
publishing or distributing of statements) any political campaign on behalf of any candidate for
public office. Notwithstanding any other provision of these Articles of Incorporation, the
Corporation shall not carry on any activities not permitted to be carried on (a) by a corporation
exempt from federal income tax under Section 501(c)(3) of the Code or (b) by a corporation
contributions to which are deductible under Section 170(c)(2) of the Code,
ARTICLE V
No VOTING MEMBERS
The Corporation shall not have any voting members. Any action or vote required or
permitted by the Act or any other law, rule or regulation shall be by action or vote by the Board
of Directors of the Corporation. The Board of Directors of the Corporation may, in its
discretion, establish one or more classes of non -voting members of the Corporation.
2
ARTICLE VI
BOARD OF DIRECTORS
The Board of Directors of the Corporation shall be responsible for the direction and
control of all matters pertaining to the Corporation, The qualifications, manner of election,
duties, terms and other matters relating to the Board of Directors of the Corporation shall be
provided in the By-laws of the Corporation as amended from time to time in accordance
therewith, The first Board of Directors of the Corporation shall be elected by the Incorporator.
ARTICLE VII
BY-LAWS
The initial By-laws of the Corporation shall be adopted by the first Board of Directors of
the Corporation. Thereafter, the power to amend, alter or repeal any part or all of the By-laws of
the Corporation shall be exclusively vested in the Board of Directors of the Corporation,
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Each person who acts as a director or officer of the Corporation shall be indemnified as
provided in the By-laws of the Corporation.
ARTICLE IX
AMENDMENT OF ARTICLES OF INCORPORATION
Corporation reserves the right to amend these Articles of Incorporation or any
amendments to them.
ARTICLE X
DISSOLUTION
In the event of the complete or partial liquidation or dissolution of the Corporation,
whether voluntary or involuntary, the balance of all money and other property received by the
Corporation from any source, after the payment of all debts and obligations of the Corporation,
shall be used or distributed as proved by law to one or more not -for -profit organizations (as
determined by the Corporation), as described in the Code. Any such assets not so disposed of
shall be disposed by the Circuit Court of Miami -Dade County, Florida, exclusively for such
purposes or to such organizations, as said court shall determine, which are organized and
operated exclusively for such purposes.
3
ARTICLE XI
REGISTERED OFFICE AND AGENT
The registered office of this Corporation is at , Miami,
Florida , and the registered agent of this Corporation at such office is
. The Board of Directors of the Corporation may from time to time
designate such other person as its registered agent or such other address and place for the
registered office of the Corporation as it may deem appropriate.
ARTICLE XII
INITIAL INCORPORATOR
The Initial Incorporator of the Corporation who is executing these Articles of
Incorporation is , whose address is c/o,
, Miami, Florida,
The undersigned Incorporator has executed
these Articles of Incorporation as of , 2015.
, Incorporator
4
ACCEPTANCE OF APPOINTMENT
As
REGISTERED AGENT
Laving been named as registered agent for the above -named corporation at the place
designated in these Articles of Incorporation, I hereby accept the appointment as registered agent
and agree to act in this capacity. I further agree to comply with the provisions of all statutes
relating to the proper and complete performance of my duties, and I am familiar with and accept
the obligations of my position as registered agent as provided for in Chapter 617, Florida
Statutes.
, Registered Agent
Dated: , 2015
5
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