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Back-Up Agreement FR (10-08-15)
MANAGEMENT AND OPERATINGAGREEMENT BYA THE CIT corporation MIAMVtf of the State of Florida and' ONSERVANCY, :Ida not -for -profit corporation , 2015 #4435018 v8 ARTICLE 1 DEFINED TERMS 2 1.01 Defined Terms 2 1.02 References 7 ARTICLE 2 TERM r 7 ARTICLE 3 FUNDING °� 8 8 9 ARTICLE 4 DESCRIPTION OF PARK COMPONENTy MP OVEMEN 9 9 9 9 10 ARTICLE 5 PARK IMPROVEMENTS ..r 10 5.01 Development of Park Improvenents� 10 5.02 The Site xat � ro 10 5.03 Existin nvironmendal Reports. 10 5.04 Scope of nv on1 tal Due Diligent 11 5.05 ,I eauscliatioin the Environmental Due Diligence 11 Site Con' 1�� �. 11 Developmen @. quirel ents 11 5.08 t?ess to Site 12 ARTICLE 6 DES1 13 6.01 Engage of Architect 13 6.02 Architectural Style 13 6.03 Amendment to Development Plan 13 6.04 Design Professionals 13 6.05 Design Documents 13 6.06 Use of Plans 14 TABLE OF CONTENTS Page 3.01 Capital Funding 3.02 Funding for Operations 4.01 Ownership 4.02 Intent 4.03 Development Plan 4.04 Phased Development #4435018 v8 1 ARTICLE 7 CONSTRUCTION 14 7.01 Construction Administration 14 7.02 Construction Manager 17 7.03 General Contractor 18 7.04 Change Orders 18 7.05 Permitting 18 7.06 Procurement of Construction Materials 18 7.07 Construction �, 18 7.08 Punch List 19 7.09 Warranties 19 7.10 Liens .. ..........19 .x ARTICLE 8 OPERATING SERVICES 8.01 During Transition Period 8.02 After Transition Period . 8.03 General Standards For Mai 8.04 Programming and Operationsy` 8.05 Concessionslk ARTICLE 9 APPROVALS AONSENTS . ARTICLE 10 INSU 10.01 Insurance ARTI "I E 11 REPRESE TIONS, WARRANTIES AND COVENANTS 1 0�� City Represe �tions, Warranties and Covenants 11.0 bnservancy ° •resentations, Warranties and Covenants 11.03 Mit Coven: nts. ARTICLE 12 DEFA 20 20 20 20 22 22 23 23 23 26 26 26 27 28 12.01 Conservancy Default 28 12.02 City Default 29 12.03 Force Majeure 29 12.04 Obligations, Rights and Remedies Cumulative 29 12.05 No Indirect Damages 29 #4435018 v8 11 ARTICLE 13 PARTY REPRESENTATIVES 30 13.01 Designation of City Representative 30 13.02 Designation of the Conservancy Representative 30 ARTICLE 14 MISCELLANEOUS PROVISIONS 31 14.01 Sovereign Rights 31 14.02 No Partnership or Joint Venture 32 14.03 Prevailing Laws and Venue, 32 14.04 Waiver of Jury Trial. ". 32 14.05 Notices ��ry�� L�� $b 32 14.06 Titles of Articles and Sections 33 14.07 Counterparts ,� 33 14.08 Successors and Assigns 34 14.09 Construction and Interpretation =tia 34 14.10 Attorneys' Fees 34 14.11 Entire Agreement 34 14.12 Incorporation of Provisions o he Le s s b , efere e 34 14.13 Assignmentsp 34 14.14 Severabilrty 34 14.15 Nonrec��p xjLiability of the Conservancy Personnel 34 .xeY 14.16 Non-Recou s Li k lit c� �y P rsonnel 35 14 �� n of I', onservanc 35 EXf$ "A" LEGAL DRIPTI ;OF MUSEUM PARK 38 EXHIBIT EGAL DES ®=IPTION OF PARK COMPONENT 39 1 EXHIBIT "C" D RIPTIC ` OF EXISTING FACILITIES 40 #4435018 v8 111 of such a park creates uni F. WHE programming and third -pal independent :tp ofit co Code to s¢b rethe residenf nd visitors; a WHEREAS, Incorporation he Conserv, portion of the nt ers of it of Incorporation; a 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 and ir vements commonly known as "Museum Park", for which the legal description of the land s se � h on Exhibit A attached to this Agreement; and B. WHEREAS, Museum Park is an assett1i the`potential to bye sformed into an active, premier destination park, free and open to t d ublic, and C. WHEREAS, the City intends to cause ark to be designed, built and managed as a state-of-the-art park for the benefit of Miamtresidents and visitors to enjoy green R4 9 K space, waterfront views and the amenities_and programs of a sig ature urban park; and D. WHEREAS, it is contemplate ' G 1e City will ijj tlie to own the current and future site, structures and appurtenances of Museum k; and E. WHEREAS he ability to fund°%)a capital cos nd long term operating expenses ges to the r ources of the City; >ii.ty desires t1 the design, construction, management for Musedn Park be handled by the Conservancy as an tion,bnder Section 501(c)(3) of the Internal Revenue „signatory park for present and future generations of Miami City Mayor and City Commission have approved the Articles of cy as a Florida not -for -profit corporation and have appointed a oard of Directors in accordance with the Conservancy's Articles H. WHERS, the 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 #4435018 v8 1 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") f;, the development of the "MAM Museum" and "MSM Museum" (as those terms are defined t erein) within Museum Park, which developments been substantially completed and which Museum Development Agreement contemplated the subsequent development of theee Park Components" of Museum Park; and L. WHEREAS, the City and the Conservancy desire to enter into this Agreement for the purpose of effecting the development of the Park Components, and to ha inonize the Park Components with the MSM Museum and MSMuseum portions of Museum ark and to enhance the enjoyment by the public of this civic asset «` NOW, THEREFORE, for and in consideration omutual promises and conditions contained in this Agreement, the City and1Conservancy agr follows: ATI DEFINE{ i4lERMS 1.01 Defin dTenns Agreement, the followennis, of meanings indicated below edition to anY other definitions contained elsewhere in this en used in this`4greement and its attachments, shall have the " gry efit' s this anagement and Operating Agreement. ". The parties expressly ackno edge , agree and ffirm fk, is Agreement does not transfer any leasehold estate or possess ry interest in the Premises i el`ading any leasehold interest in subject Premises ( e.g. Museum park)owned by t City; does not confer a right to use the Premises for any purposes that are not e „' essly specified° herein; and does not convey or transfer any right to exclude the City from the % rises; the;onservancy is not a tenant and the City and the Conservancy reaffirm they do nhave no* or in 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 #4435018 v8 2 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 Maragelnent Trust, a limited agency of the Miami City Commission. "Business Day" means any day other than a Saturday, S> nday:or legal or bank holiday in Miami -Dade County. If any time period set forth in this Agrc vent e ir s on a day other than a Business Day, such period shall be extended to and through_.thelext succeeding Business Day. "Certificate of Occupancy" means a certile issued by the relevant Governmental Authority permitting public occupancy and use o'h Park Impr, vements.�' "Change Order" means a written instrumen Construction Manager authorizing a change in the scope o contract price and/or the date of Substai 1 i Completion for may be. "City" shall mean the City of Miami 4 Flori Dade County, Florida "Cit 'without further terms of an expressed City r approval and comment o" City Commission. "City Default" is e tion 11.02. Cit -eis 1" s de l de in Section 1 .16. it Re resentais defi '''Section 13.01. . y p � � �:` "CO ncement of-Q nstruetion" means a permit needed to begin construction of the applicable Pof the Par1Tmprovements has been issued and the Conservancy has begun physical construct of that lease of the Park Improvements. y. the Conservancy and the Yk, the Construction Management ark Improvements, as the case orporation located in Miami- elegation in this Agreement in some action shall mean the Miami "Commission" cans the 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. #4435018 v8 3 "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 or mg contracts between the Conservancy (as "Owner") and the Construction Manager(s) providing construction management and/or general contracting services for the Park Improvements. "Construction Manager" means an entity or entities set cted by t Conservancy to serve as the construction manager or general contractor to pia' de constructio management and/or general contracting services with regard to the constru&tion of the Park Improv n tints. "Construction Schedule" means any of the co (or portions of the Work) to be prepared by the requirements of the Construction Management Contrac accordance with Section 7.05. A Construction Schedule ma Project Schedule adapted to a relevant portionPhase of the "Contractor " means the contractoiwho Conservancy and the Contractor or as partf Construction manager Finn " 'li Qontractor sh' engage in contracting "Default" means a y D u t or a Conse D DocumentS and Cons n Professiona the Architethe Consery design and cue t _-related e Design Professio (1s,includ� requirements for ce the mos Doc`z fin. ents. • e Des` be certifie W'o chedules relating°to the Work ctioii Manager pursuant to the such schedules are updated in sist of a portion of the Master °more contracts between the uild Firm or as part of the under 481.119 , Florida Statutes to tcy Default. Cent (from time to time) of the Schematic Design means `t e Architect and the engineers and consultants retained by 'ty, as the case may be, from time to time to provide architectural, neering services for the Park Improvements. In the event the Design Build Firm the Design Build Firm shall comply with the under applicable Florida Statutes . "Development Ian" 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. #4435018 v8 4 "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 the Hazardous Materials Transportation Act, as amended (49 U.S.0 Resource Conservation and Recovery Act of 1976, as amended ( the Water Pollution Control Act (33 U.S.C. § 1317); (e) th `lot Management Act, Florida Statutes § 403.702-403.7893; ( Control Act, Florida Statutes §§ 376.011-376.21; (g) a "petroleum products" under Florida Statutes § 376.30 as defined in Florida Statutes § 376.301 or Florid Stat § 403.031; and (i) ground or water pollution44� County Code. e Pol atcrial defn :1) contaminant, o atutes § 403.031, wastes used by -Section 24-5 of t "Environmental Due Diligence"*defined defined in Section "Force Majeure" means any act oai condition, flood, fire, epidemic, major accident, e but not limited to threatened or actual f `ftkoul disturbance, demonstrations; r or armed c common carrier, or by rc son o "Friends of'Mus corporation. tot, (or t C. § § 9601 et seq.); (b) Q1 et seq.); and (c) the ,U.S.C. §§ 6901 et seq.); (d) Resource Recovery and M* Spill Prevention and as "petroleum" or ardous substance efined in Fla. vliaini-Dade rthquake, hui ., : or other severe weather casualt, tabor controversy (including strike), riot, terrorism, civil is of the foregoing), delay of a . other causev causes of any similar nature. means The Fri 4S of Museum Park, a Florida not -for -profit ing Plan is define s` #.Article 3. overnmcntal Arit" g ��, � y ii"�ns any federal, state, county, municipal or other govermiienl department, etty, authority, commission, board, bureau, court, agency, or any instrumentalit of any of then "lmprovemei Architect" means such architectural firm as the Conservancy or the City may retain as the f cipal 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. "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. #4435018 v8 5 "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 and construction milestones for the applicable Phase of the Project, the Conservancy's responsibilities, Governmental Authority reviews and other activities as are necessary for the timely completion of the Work, as such schedule shall be revised and updated in accordance with Section 6.05(c). "Museum Park" is identified in Recital A. "Museum Park Liaison Committee" means the committee fon "Operating Commencement Date" is defined in Article "Operating Services" means the services rendee Agreement in connection with the operation of the Par Phase of the Work and the ongoing funding of the date. ursuant to Article 13. y the "(1servancy under this ponent upon 4 letion of the first >eration of the Park C oonent after that "Ordinance" means City Ordinances w .`hrle slativel im lenient certain City ��,�... g Y � p policies relative to this Agreement. "Park Component" means the po acres which are contiguous public facilities t1 permanent structure. The Park Component isdenti "Park Improveme and constructed on the, "Party" means th "Person company ust, publii l'ihse" refers to a Museum Park, resisting of approximately 21 ;able of seating at least 5000 people in a ibit B". Tres the improfinents and 4 nenities to be designed, developed ent pursuanio this Agreement. o servancy or ` Pth as context may require. person, ership, association, corporation, limited liability govermnental unit or other entity. e proposed Park Improvements. "Projet means the esign, renovation, development and construction of the Park Improvements o e Park Component in accordance with this Agreement. "Project Budge 'deans the capital budget, as it may be modified from time to time, for the Project or any Phan** thereof. "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. #4435018 v8 6 "Schematic Design Documents" means the then current conceptual design documents of the Park Improvements, as may be amended from time to time in accordance with this Agreement, illustrating the scale and relationship of the components of the Park hmprovements. "Site" means the area of land described in Exhibit "B." "Site Conditions" means any site conditions other than Environmental Conditions, including (i) subsurface or otherwise concealed physical conditions which differ materially from those indicated or assumed in the Construction Documents; and (ii) umownphysical conditions of an unusual nature which differ materially from those ordinarily`:mli'po exist and generally recognized as inherent in construction activities of the character pitided for in the Construction Documents. "State" means the State of Florida. "Term" means, with the initial term and/0 any of the renewal terns described in Article 2, as context may require. "Transition Period" is defined in Article 2. "Work" means all work to be 1? rormed to constru the Park Improvements, or any Phase thereof, in accordance with this Ag 1.02 References. All references shall, unless expressly other-wie provided or refer to the specific se "hereunder" and wor°of simi particular section ore. All regardless of the pronouneua singular or plug l as the ide pronoun is., i ed. hibits" Exhibits onstitute part ,:f tI is t e conl te ent to particular sections or articles therwise requires, be deemed to articles in tli Agreement: The words "hereof", "herein", 'mport referte this Agreement as a whole and not to any nouns and va=atons thereof used in this Agreement shall, ed be deeme°to refer to the masculine feminine neuter e p tvr:entity may require in the context in which such s to the ekhibits attached to the body of this Agreement. ent. ARTICLE 2 TERM The City heages, and the Conservancy hereby accepts such engagement, the Conservancy to act as4fie developer of the Park Component in accordance with the terms and conditions of this Air' and in accordance with applicable laws, codes, rules and regulations which have jurisdiction over the matters set forth herein. . The initial Tenn of this Agreement with respect to the Development Services shall commence on the Effective Date. The initial Term of this Agreement with respect to the Operating Services shall commence upon the breaking ground or initial commencement of construction completion of the first Phase of the Park Improvements, which is anticipated to occur on or about [eighteen (18) months]. The Parties agree to execute a document confirming such commencement date (the "Operating Commencement Date") after it has occurred. The initial term of this Agreement shall expire on #4435018 v8 7 the tenth anniversary of the Operating Commencement Date. The period between the Effective Date and the Operating Commencement Date is sometimes referred to as the "Transition Period." Provided that this Agreement is then in good standing the Term of this Agreement shall may be extended for three (3) renewal Terms of ten (10) years each, if the City Manager gives the Conservancy written notice of the City's intent to renewal at least six (6) months prior to the expiration of the then current initial or renewal Term. The Conservancy may terminate this Agreement for its convenience at any time upon not less than one hundred eighty (180) days prior written notice to the City. The City may terminate this Agreement for its convenience at any time upon not less than one hundred eighty (180) days prior,, written notice to the Conservancy. This Agreement shall terminate if at any time the City eases to exist as a Florida municipal corporation or the qualifications of the Conservancy a etr forth in its representations under clauses (a), (b) or (c) of Section 11.02 cease to be fe a correct. The City or the Conservancy shall not have any recourse, redress or remedy' against tother for a termination made pursuant to the provisions of this Article. ARTI€ FUNDING 3.01 Capital Funding The Co rvancy shall develo pp a capital funding plan for the Park Ira rovenent (the "Funding Plan") all include projected costs and draw down schedules for City, private sector pledges, per nittec crags another funding for the design, development and construction of the Park h arov ements TieConservancy shall use diligent, commercially reasonable, of o secure fun d°sufficient t ay such design, development and construction costs, ash end wIIie due pursuant to the terns of this Agreement and the Construction Manageni i Contract. The Funding ?lan shall be prepared in consultation with the City and the Conservanc shall t o due consider t on to comments made by the City. The Parties anticipate that the 1�e� i tc shalhre of\e capital funds from individuals, businesses foundationsa ` of e entities for rivate see- d ending for some of the Park Improvements, and that the agreements wi h such'. ors may include naming rights with respect to certain compo e is of the Park Iiri rovemel ts hwhere the amount of the funding is sufficiently large to justify lianung rights as an ucement o the grant. Any agreements to establish naming rights shall be i a .ln consultati with the Miami City Commission and City Manager . The Conservancy *i also seek Ending and grants from other governmental agencies. The City agrees that it shy l se reasonable good faith efforts to obtain funding from its allocated and available revenues 1 and other sources (including funding from other agencies such as the Omni Community:: development Agency and Miami -Dade County ) in order to complete the Park Improvements. No real property in Museum Park may be used to secure any debt nor shall this or any other property owned by the City and/or any agency / instrumentality of the City be used to secure any debt nor will such property be otherwise liened, pledged or encumbered.. The Funding Plan shall reflect all anticipated sources and uses of funds, and shall identify any dedicated grants which include naming rights or other restrictions or conditions. The Funding Plan may suggest phasing of various components of the Park Improvements and propose alternative funding sources or design features for future determination. The Conservancy may revise the Funding Plan from time to time as circumstances may require. The #4435018 v8 8 Funding Plan shall serve as the initial Project Budget. The Conservancy, in acting as the developer under this Agreement, will be the recipient of funding for the Project from various private and public sources. With ninety (90) days of the execution of this Agreement by all Parties, the Conservancy shall provide the City with documentary evidence that the Conservancy has received written pledges or gift agreements from third parties for the Project in an aggregate amount of not less than Seven Million Five Hundred Thousand Dollars ($7,500,000). The Conservancy shall develop on -going or subsequent capital Funding Plans from time to time for later Phases of the Project. 3.02 Funding for Operations. The Conservancy also shall pep a rc, for each year during the Term after the Operating Commencement Date, an annual , rating budget for the Park Component, showing the sources and applications of all operating nds. The Parties anticipate that the Conservancy shall receive operating funds from individuals, b`esses, foundations and other entities for private sector funding (which may include the FriendsMuseum Park), as well as funding from the City , the County, and other governmental ageneics in amounts, and subject to conditions to be determined from time ` time during the Term o t is Agreement. The Conservancy, in its operation of the Pare onent i ay generate tec from users, vendors, special events, and sponsors, which fees shall ¢e used for°hhe expenses di operating the Park Component. The Conservancy shall also seek to est?a°b operating endowments and other sources of operating funds. for some off -the Park Improveme ts, and that the agreements with such donors may include naming rights r tit x consideration. DESCRIPTION OF PARK C ®.MPONEN'I IMPROVEMENTS 4.01 Own The servancy shalt cause the Park Component to be developed and improved by the Chi sttuction Manager and the 'Consultants and contractors as a municipal park, and shall continue to�� iid � ° es y the City. At all times, the City shall own all Park Improve elopepursuant toy this l greement, including any structures, permanent fixtures, iirniture, otl nproveii ts, and equipment affixed permanently to the Site. Intent. They nservanc and the City agree and recognize that the development of the Park Improvements a sot forth within this Agreement is intended to: (a) ensure that the Park Component remains an ractive destination in order to provide recreation for its visitors, stimulate the 1a 1. economy showcase the City and enhance the City's reputation as an international touri�ii esttion; and (b) create new and attractive recreational features and enhance the public's di :t'y to use and enjoy the Park Component throughout the year. 4.03 Development Plan. The Development Plan ("Development Plan") for the Park Improvements will be created by the Conservancy in consultation with the City. As part of the Development Plan, the Conservancy shall create a "Building Program" and a separate "Existing Facilities Program." A description of the existing facilities and features of the Park Component is set forth in Exhibit "C". The Building Program shall incorporate the Funding Plan and shall identify the proposed Park Improvements, The Existing Facilities Program shall document and analyze the existing state of the Park, including existing improvements and natural conditions on the Site. The Conservancy shall establish the elements to be included in the Development Plan. #4435018 v8 9 The Development Plan shall include a narrative description of the renovations, improvements and construction constituting the Park Improvements. The narrative description is intended to address the programmatic goals of the Project and the approximate locations of its various components. In creating the Development Plan, the Conservancy shall consult and evaluate the original plans developed by Cooper Robertson & Partners, as are available for use and modified from time to time, and take into account which parts of those plans have been constructed or superseded by improvements subsequently completed by the City, including the Existing Facilities described in Exhibit "C". The Conservancy shall also consult and evaluate plans for other premier urban parks and consult such experts as the Conservancy desires in order to incorporate and adapt best practices and to create a unique, 'worldclas lark which reflects the needs and aspirations of Miami's residents and visitors. The fh 1-Development Plan shall be submitted to the City for its approval. 4.04 Phased Development. The Parties recognize 'That fund' or the Project will come from various sources and that funding for the cntire Project may n6t available at the time of commencement of construction of the ini al Park Improvements. cordingly, the Parties agree that the Project may be developed inn of e of more phases. The Conservancy shall propose suggested phasing of the Park Improvements nd a stimeline for construction of each Phase, subject in each case of the availability of fundmghe Conservancy shall endeavor to cause the completion of all elements of ktk subsequent Phas o later than the dates suggested in the Development Plan. To this end, theConservancy and theagree to meet promptly and regularly after the execution of this Agreementdicuss phasing to report on its progress in completing each Phase of the Project. 5.01 Development developer o th � 1t ComponE a shall (a) l tiage and ttrol the' (b) be ponsible for lria aging at s limite Con engineering- coordinate it§ Museum. N. including but lysis, all in a ivities wi ART t E 5 RK IMPRO EMENTS Wes.; oven -seats. The Conservancy shall serve as the Subject to e provisions of Section 14.17, the Conservancy sign, development and construction of the Park Component, °ving all pre -development issues required for the Park , regulatory reviews and approvals, traffic, parking and ordanee with Applicable Laws and the Development Plan and (c) the developers and operators of the MAM Museum and MSM 5.02 The Sie,The City shall deliver physical possession of the Site to the Conservancy so that We Conservancy may commence construction of the Park Improvements within the Site. 5.03 Existing Environmental Reports. The City shall provide the Conservancy with copies of all existing reports of Environmental Conditions at the Site, including the existing Phase I and Phase II enviromnental reports. The City shall furnish the Conservancy with copies of any certificates or notices from DERM concerning the Site. The Conservancy, in consultation with the City, shall determine if, based on such reports, the necessity or advisability of the engagement of a consultant to perform further environmental review, testing or monitoring of the #4435018 v8 10 Site at a cost to be paid by the Conservancy ("Environmental Due Diligence"). The Parties acknowledge and agree that if such a consultant is engaged, then the consultant will prepare its Environmental Due Diligence report for the benefit of both Parties and neither Party shall be liable to the other for any errors or omissions in such report or for either Party's reliance on the report. 5.04 Scope of Enviromnental Due Diligence. The Environmental Due Diligence shall include the entire Site and the consultant shall investigate and test, to the extent practicable, those areas of the Site where each Park Improvement is to be built The Environmental Due Diligence report shall set forth the consultant's findings, and the, report shall identify any Environmental Conditions present on the Site, the known or presued location or radius of any Environmental Conditions, and the anticipated impact of such E �vir mental Conditions in light of the Project Improvement proposed to be built on each suchilocation\ ;Ain the Site. 5.05 Remediation/Mitigation Disclosed in the Enviromnental Due' igence Report. If the Environmental Due Diligence report discloses,Eviromnental Conditionsthe.Site then the City shall be responsible for completing the e aced remediation or miti ff work and paying the Remediation Costs out of its separate funds Tl e Rem iation Costs shall not be part of the Funding Plan or Project Budget or constitute an op' e g expense of the Park Component. Subject to any requirements of applicable law, the Parties a e that the time for undertaking any specific remediation of Enviromnental Conditions at the ' Ste shall be scheduled in a commercially reasonable way and con* with the phasing of construction of Park Improvements located within (or affected bey the E rc nunental condition in question. If the Conservancy undertakes any remediation or iiti tloii j vitonmental Conditions, the City shall not bring a claim ci actn against the nservancy or the underlying Environmental Conditions as well as 0-reinedi n or mitigation work undertaken by the Conservancy. 5.06 Sitetod ittons. T warranty, representation 6 conditions oon the obligations related to:, perfor . uch tests as existenceo Site Conditi- City presents §thsite in "AS IS" condition, and makes no o Ktp condition or suitability of the site or any or the Conservancy to complete its construction Conservancy shall have the right to inspect the Site and to ary or appropriate from time to time to determine the nservancy shall cause the Park Improvements to be designed t such Site nditioi s into account and shall provide in the Construction Documents fors t e removalof any objectionable Site Conditions such as debris and non- hazardous materials- ecessarmfor construction of the Park Improvements. 5.07 Develo ht Requirements. (a) The City, subject to the requirements of Applicable Laws, in consultation with and upon application by the Conservancy, shall use reasonable, good faith efforts to expeditiously process all applications for consents, approvals and permits necessary to allow for the construction of the Park Improvements, which may include, if applicable, without limitation: (i) warranty, waiver or special permits and/or special exception applications; (ii) road, alley, and/or public right of way closure(s) and relocation petitions; (iii) re -zoning or zoning variance applications; (iv) those from Miami -Dade Water and Sewer Department and/or City departments overseeing environmental regulations and affairs; (v) petitions to relocate all public and private #4435018 v8 11 utilities, including, without limitation, electric, gas, cable, telecommunication, water, sewer, and storm drainage facilities located within the Site, provided the relocation will not materially and negatively impact any other public facilities; (vi) building permits (collectively, the "Development Requirements"). The City expressly authorizes the Conservancy to apply for and obtain permits and applications to satisfy the Development Requirements, and to the extent the City is required to join in any such permits or applications, the City hereby authorizes the City Manager to execute such documents on behalf of the City. The City Manager or designee shall, within five (5) Business Days following receipt of a written request from the Conservancy, execute any applications, forms or petitions reasonably necessary to modify, renew, or obtain any Development Requirements for the Park Improvements prepared by the Conservancy or its consultai'g` May be necessary from time to time unless the City Manager has a concern or objection ch an application, form or petition in which case the parties shall confer on the matter and firth r ovided the City Manager or designee cannot be compelled to execute an application theyreasonabl ake objection to. . The City agrees not to act unreasonably, or unreasonably fail to t. ¢ n a manner t t vould substantially delay or place in jeopardy, or would reasonably be expected to jeopardize, the ly completion of any Phase of the Park Improvements. (b) To the extent permitted by Applica e4 ate, any City permit Tees and other City Development Requirements fees applicable to the Proje 5.08 Access to Site. all be waived. (a) The City shall provide authd i a`kon for the `conservancy and its agents, consultants and contractors (including the Constructs d the Design Professionals) to, immediately upon the Effect te, enter uponia e'°Site in order for them to be able to perform various tests and studies the and others reconstruction work as contemplated by this Agreement. Upon the Master Project Schedule as the commencement of action Mora ate oar Phase, the Conservancy shall cause the Construction Ma ager to be responsible for securing that part of the Site under construction for a pa icular Phase and providing the insurance required by this Agreement. or pathe Park Component may be closed to the public during testing,site iparatio`i or construction of Park Improvements, some of which be condo` rr d as early as the Transition Period. The Conservancy shall be tied to fe be off and/or exclude the public from those portions of the Site in e Work and/or staging for the Work are being performed while the Park he development contemplated under this Agreement under this whiff tl undergo. Agreerzl tilt. The Conservancy shall cause all construction areas (including staging areas) shall be covered by the bonds and insurance obtained by the Construction Manager, in confonnance with the requirement under this Agreement. (b) The City, through its City Representative or any other representatives, shall continue to have access to the Site at all times, including those portions under construction. #4435018 v8 12 ARTICLE 6 DESIGN 6.01 Engagement of Architect. The Conservancy shall form an architectural selection committee to oversee the selection of Design Professionals and approval of the designs of the Park Improvelnents. The Conservancy review experienced architectural or landscape architectural firms for the creation of the Development Plan and Design Documents. The Conservancy shall select the Architect for the Project after review of qualified firms expressing and interest in the Project and having qualifications for its execut fr The Conservancy may engage a separate Improvelnents Architect and Landscape Arc1ect, or determine that those s functions should be combined and awarded to a single Ar hltwho is qualified in both disciplines. 6.02 Architectural Style. The architecturato yTe of the Park Int yelnents shall be determined by the Conservancy in consultation with the City and the Arc hi eot and will be reflected in the Development Plan. 6.03 Amendment to Development Plan. The onservancy shall manage and control the design of the Park Improvements, including the hiring' the Design Professionals and the development of all of the Design Do its eats. The Cons i 'ancy shall direct the Design Professionals to prepare Design Documents -a e consistent the Development Plan and all Applicable Laws. If the Development Plan is sub cquently modified by the Conservancy by more than 50% from the original Development Pl o t ll pproved by the City, then the he City for review, consideration Conservancy shall submit. ended Devellpment Plan and approval. 6.04 and design services rear ImprovemerllJ:achitect Design Professionals into aidArchitect Conti` agree with other De connection the design and professioservices agr Design'rressiona11' The Conservancy will retain the Architect for architectural p ion with/the design and construction of the Park feo fees and sums paid to the Architect and other s part of the Project Budget. The Conservancy shall enter tl itect, and may enter into other professional services Profess i als, for the architectural and design services required in construction of the Park Improvements. The Architect Contract ents shall be consistent with the terms of this Agreement. (a) Ge rally The City Representative shall review the Schematic Design Documents, the Design Documents and the Construction Documents for the Park Improvelnents. To assist the City in its review, the Conservancy shall cause the Architect to provide with any future Design Documents a summary of any material changes and provide commentary and guidance . The City Representative will not be supervising, directing or controlling the Documents referenced herein , the duties or acts of any Consultant or the means or methods of Construction. All Design Documents shall be prepared by an architect or engineer licensed to practice in the State of Florida and will describe all elements of the Work including, but not limited to the limits of construction, pedestrian and vehicular circulation and locations of construction ingress and egress. #4435018 v8 13 (b) Schematic Design Documents. The Schematic Design Documents, depicting all of the elements set forth in the Development Plan, including updated renderings, plans and elevations shall be submitted to the City Representative to provide comments. The Schematic Design Documents shall be designed in accordance with all of the provisions of this Agreement, the Resolution, and Applicable Law. If the Architect revises the Schematic Design Documents to address comments raised by the City Representative, then the Conservancy shall submit revised Schematic Design Documents to the City Representative. (c) Master Project Schedule. Within [ninety (90)] day after the finalization of the Schematic Design Documents, the Conservancy shall prepare a d`,deliver to the City Representative the master project schedule ("Master Project Schedu1q for the Work, the Project Budget and the proposed completion date, broken down, as appro riate, oMr the applicable Phases of the Work. (d) Construction Documents. The Ce serva icy shall prep the Construction Documents for each Phase of the Work (as applicable) eaf such time as the Conservancy is ready to proceed with the Work for that particular Phase, all,in° accordance',rth the Master Pr cct Schedule. The Construction Documents shall conform to Applicable � Prior to commencing the development of the Construction Documents for a particular ase of the Work, the Conservancy dt �� shall schedule and coordinate a kick-off meeting with the City °Representative to review the targeted completion date, the Construction Schedule nd 1U aster Project Schec le for the applicable Phase of Work. The Conservancy shall consider all of t , and requests o codifications by the City prior to submitting the Construction Documents tolatory encies for permitting. The Conservancy shall apply for all required permit froregulatory agencies having jurisdiction over the Site and the Worl . - onservancy4ma revise ty Design Documents for the Park movided that tey conform to Applicable Law, and remain is with the then current Development Plan. Any revisions to the old re i re re latorcview and approval byanyGovernmental �. ? � Y �, ° pP b,y slitted to the City Representative. `G.'iens.drLe._a Improvements from time tb ti consistent in all materi spec Design Documents which' �wo. Authority for permitting or oth 6.0`.6 Use and subject to the secu perpetualcense to use tit' and modification of the P payment of ll:. ndisputed chitect Contract shall grant the Conservancy and the City nd of ie ro edures set forth in Chapter 119 Florida Statutes, a )esign Documents in connection with the development, operation nprovements; such license being conditioned, however, on the mounts due and owing under the Architect Contract. All construction do iu ents, p1 is, specifications, drawings, revisions, modifications, models, samples and the like mit submitted to the City or the City Representative pursuant to this Agreement are for informational purposes only, except to the extent (a) otherwise expressly provided herein, or (b) they are submitted to the City for regulatory or permitting purposes. ARTICLE 7 CONSTRUCTION 7.01 Construction Administration. Subject to the provisions of Section 14.17, the Conservancy shall oversee the managing, directing, supervising, coordinating, controlling and funding of the planning, design and construction of the Park Improvements in accordance with, #4435018 v8 14 the Construction Documents, the Construction Schedule, the Master Project Schedule, and the Project Budget as any of the foregoing may be modified as permitted by this Agreement. The Parties acknowledge that the Conservancy is not obligated to provide any of its own funds, and that funding will be governed by the Funding Plan. The Parties further acknowledge that all design and construction will be performed not by the Conservancy but by the Construction Manager, General Contractor, Architect and Design Professionals, as the case may be. Except as otherwise specifically provided in this Agreement, the Conservancy agrees to take all reasonable action for the orderly performance of all aspects of the Work required in connection with the construction of the Park Improvements, including, but not limited to: (a) retaining the services of the Architect, comp l ce with the requirements of the Architect Contract, and coordinating the design of the Park Imp 'ovenients; (b) retaining, as necessary, the services ofspecialty consultants; (c) retaining the services of the Construction Manager pursuan.„A Section 7.02, who shall cause the Park Improvements to be constructsed in accordance with the\ equirements of ��y this Agreement, the Construction Schedule, the Mayste FkProe`t -0a Schedule, the- Construction Documents, and the Construction Management Contract; (d) preparing and updati time, the Construction Schedule and the Mra Project Coordination Team; (e) retaining ad Conservancy in order to:] compensation and expex of such Budget; records, consi t i mil dustr3 including not limited tb the Orders, a.iuit drawings, a1 receipts, lien waivers, customary and bid calculat sheets; (g) xcausing to be pared and updated from time to of ect Schedule, } d/delivering copies to the supervisin g persoreasonably required by the perform or cause to be performed the Work; and the sonnel shall fie reflected in, and paid as part of, the Project maintained, complete and accurate books and ards, regarding the design and construction of the Project, tior. Documents, shop drawings, testing, surveys, Change cationspayment, permits, insurance policies, bills, vouchers, eriodi ieports, inspector daily reports, estimates, correspondence action reasonably required to comply with Applicable Laws [and the Resolution] and all reasonable action required to cause the Architect and the Construction Manager an d all other agents and contractors engaged by the Conservancy to design and construct the Park Improvements in accordance with Applicable Laws, [the Resolution] and the provisions of the Architect Contract and Construction Management Contract; (h) furnishing to the City Representative documents and information required to be provided to the City Representative pursuant to this Agreement and other information relating to the Project that they may reasonably request; #4435018 v8 15 (i) providing the City Representative, with copies of the Construction Documents and any material change orders reflecting deviations from the Construction Document; (j) managing and ensuring that all punch list and warranty work after completion for each Phase undertaken is achieved; (k) establishing and updating, as necessary and in accordance with the requirements of this Agreement, the schedule of dates for delivery of various Design Documents for review by the City Representative; (1) inviting the City Representative to Project nlec gs and preparing or causing to be prepared minutes for all scheduled project meetings (incl i 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 toFrelevant4oject meetings for the Park Improvements, as the case may be; (in) endeavoring to cause the completion of the ,'ark Improvemeaccordance with the Design Documents, the Construction Schedule, tee. Master Project Schedul ;and within the Project Budget; Project; (n) obtaining or causing }to be obtained permits necessary for construction of the (o) maintaining, or causi1• to be tamed the Park Improvements construction sites in safe cond t4grlse and properly *cured again �nipeimitted access from and after the Commencement of Con ty Representative the monthly progress reports required by this Agreement and the Cotuctitt Management, Contract as prepared by the Construction Manager; (q) supervising a d coordinating, or using reasonable efforts to cause the Ma nager anager to sup vise an oordinate, the construction of the Park Improvements, including tlscheduling of .construction work on the Park Improvements, so that the Park Improvements constructed,luipped, furnished and completed in a good and workmanlike manner, in accords e with the, esign Documents and Master Project Schedule and otherwise in accordance with thi. _.eemei and (r) ca s fig the Construction Manager to coordinate work and grant appropriate access to the Site for contractors appropriately performing work. (s) causing the required payment and performance bonding as required by 255.05, Florida Statutes , to be in place prior to the commencement of construction and throughout the course of the work until , at minimum, a final certificate of occupancy or the equivalent building permit is issued, naming the City and the Conservancy as obliges, as provided herein. Such bonds shall be in the amounts and the form prescribed by 255.05, Florida Statutes and shall be in the amount of one hundred ( 100 % ) per cent of the Construction Cost .The bond shall name the City of Miami as a co- obligee or beneficiary. The bond must be kept on file with the City Manager or #4435018 v8 16 designee and will be subject to the approval of the City Risk Manager and the City Attorney as to legal form . For purposes of this section Construction Cost shall mean the cost of all elements of the Project specified by the Architect, or the Design/build Firm , as applicable , including at current market rates , with reasonable allowance for overhead and profit, the cost of labor, material or equipment , but not including compensation to the Architect or other Design Professionals. The Parties acknowledge and agree that the Conservancy's obligations under this Agreement are to manage, administer, and implement the development, design, renovation and construction of the Project. Notwithstanding any term or condition this Agreement to the contrary, the intent of the Parties is that the Conservancy shall not.1 efbr1n any services (and shall not act) as a contractor within the meaning of Chapter 489 lorida Statutes, and that all such services shall be performed by licensed contractors (a o e red under Chapter 489, Florida Statutes). 7.02 Construction Manager. (a) The Conservancy shall select t c Constructi on Manager. A y nstruction Manager selected by the Conservancy shall be in good srlrlg wits the City, cannot be an entity or person that is debarred from doing City work, and cannot bQ rrears or delinquent in its debts or obligations to the City. (b) The Construction Managershall overs construction of the Park Improvements. The Construction Manager shall se c t a engage s i other service providers in connection with the Work as the Conservancy ad theManager may deem necessary. (c) The the Construction Mana Conservancy may elect` Construction Management Applicable Law, [ate the Resol The Constr percent [ %j The Conse Contrast f he City's review icy shall enteinto a Construction Management Contract with e the construction of the Park Improvements, or the enter into tlit Construction Management Contract. The 11 be con [dent with the terms of this Agreement, l times contain the requirements set forth below. oa cts shall provide for a contingency of not less than five m it to the City a copy of the Construction Management y conents shall be completed and provided within those ten (10) Busines Sys, which tint hall bin extended up to thirty(30) additional days if so requested by the City Mahage . In the event that the City does not deliver written objections to the proposed Construction Mararl ent Contract within such ten (10) Business Day period, then the provisions of Article 9 shall apply The City's review of the Construction Management Contract shall not be deemed a waiver of a ghts of the City contained in this Agreement. The Construction Management Contract sl fiinclude provisions requiring the Construction Manager to comply with Applicable Laws, and provide the requisite bonding in accordance with Section 255.05, Florida Statutes, the insurance requirements set forth in Article 10 and provisions under which the Construction Management Contract may be assigned to the City in the event of a default by the Conservancy under this Agreement or under the Construction Management Contract. ent icy steal an (d) The Construction Management Contract shall require that each subcontractor of the Construction Manager indemnify the Conservancy and the City in the same manner and to #4435018 v8 17 the same extent that the Construction Manager indemnifies the Conservancy and the City under the Construction Management Contract. (e) Before the Construction Manager commences its services related to the Park Improvements, including, but not limited to, entering into any subcontracts, purchasing or ordering any supplies, materials, or equipment, undertaking Site inspections or testing, and/or any construction, the Construction Manager shall execute, deliver to the City and the Conservancy, and record in the public records of the City, separate payment and performance bonds, in an amount equal to the total cost of the applicable Phase of the Park Improveme ts. Each payment and 05 Florida Statutes, bond shall be in compliance with the terms of Sectio� �2� 5,;, specifically in compliance with the requirements of Section 255 0,5f(a) and (c), 255.05(3), and 255.05(6), and shall name the City and the Conservancy as beneficiriie 1laereof, as joint obligees. 7.03 General Contractor. In causing the construction of the , Improvements, the Conservancy may elect to use a general contractor acjer a general conforconstruction instead of the Construction Manager model, and inf uch case all references Section 7.02 or elsewhere in this Agreement to Constructie nager Yor i ConstructioManagement Contract" shall be interpreted as referring the genera c ntractdr and the genera,l contract for construction. 7.04 Change Orders. Change a ,ei by the Conserv" ac relating to the Work shall not be subject to advance review to the C`ed that: (a) Ite,thange Order does not substantially delay the completion beyond the tar et „cornpletio,date for each Phase of the Work; (b) the Change Order does not pose a matera�akiipublic safety; (c) the Change Order does not (i) eliminates or o he substantiallymodify an el vent from the Development Plan, or (ii) materially alter design f the Park Irii rovements, or any part thereof, as depicted in the most recent Des): -Documen for that Phan (d) the Change Order does not exceed the Project Budget forthe Fuse in question unless t Conservancy has funding for the changed element, and (e) the Chan g d conforms with [the Resolution], Applicable Law and this Agreement. Ii d itien, they `` ,servane' it make any Change Orders that are required to comply h the fina, initt Set of Construction Documents and Applicable Law. The Cons icy shall make a. ood fal h e (fort to furnish the City with an advance copy of any Change Or er that does notcomply w 4 clauses (a) through (e) above. 7.05nitting. T1el Conservancy shall keep the City Representative informed of the progress of the ork during the permitting phase and shall coordinate with the City Representative toe i-e tpermitting requirements are acceptable to the City. 7.06 Procureirfent of Construction Materials. To the extent allowed by Applicable Law, the Conservancy and the City shall consider implementing a sales tax exempt procurement program in order to allow the City to purchase all or some of the construction materials and equipment for the Park Improvements on a tax-exempt basis with funds from the Funding Plan. Such consideration shall include the feasibility of salve, a determination by the City and the Conservancy of their respective costs to implement the program, and any savings to be realized by the Parties by implementing such a program. 7.07 Construction. #4435018 v8 18 (a) The Conservancy shall schedule a pre -construction meeting between its Construction Manager and the City's Representative prior to mobilization. The pre -construction meeting shall serve to review and discuss the upcoming construction activities. Upon agreement between the Conservancy, its Construction Manager and the City Representative as to all construction work activities and the associated logistics and timing, the City will issue an authorization to occupy the Site. Upon issuance of the authorization to occupy the Site, the Conservancy shall be responsible for securing the Site and all construction activities occurring therein. (b) The Construction Manager shall be responsible; he 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` t licensed contractors and subcontractors. 7.08 Punch List. The Architect and the Cons`ervaricy, in consul t®KK and with input from the CityRepresentative, shall cause to beprepared a punch list of items tS 'e completed by p p the Construction Manager after completion so that Work v tll be in general c formity with the Construction Documents. The Conservancy shallrovide "Ile, City Representative with a copy of the punch list and shall incorporate comments fi `the City into the punch list. The Conservancy shall use reasonable efforts to cause the Construction Manager to complete the punch list items as soon as reasonably pr efforts, in accordance with Construction Management Contract. All work shall be performed byltt,ruction Mana r n a good and workmanlike manner in conformity with the Construction Docuis, 'the CityRepresentative, upon request, shall be provided with a copy of the pu h 1is, the Construction Manager upon tk completion of all work ite 7.09 Warr, and the relevant subcoi Improvements shall nam xtent practi8ahle, all the Construction Manager warranties lier and manufacturer warranties with respect to the Park a d the City as intended beneficiaries of the warranties T1 e o aservancy: s�hall not�`kno and take any action negating the Construction Manager land any b ontractc% suppliers' and manufacturers' warranties, except for emer e 'es, matters of i is sa oty; copy of each warranty shall be delivered to the City Repesenaye. 7.10 Liens. The Construction Manager shall cause the Park Improvements to be constructed in ac}cc rdance w th the Construction Documents free and clear of any and all Liens arising from the VAlithat ncumber the property comprising the Site or the Park Improvements. In the event any sat ten is filed by the Architect, the Construction Manager, or any subcontractors or suppl rs, the Conservancy shall cause said Lien to be discharged or transferred to appropriate bond within thirty (30) clays of recording. The Conservancy acknowledges and understands that under Chapter 713, Florida Statutes and other Applicable Laws City real property is not subject to mechanics or similar liens . #4435018 v8 To th tor, su 19 ARTICLE 8 OPERATING SERVICES 8.01 During Transition Period. [DRAFTING NOTE: The provisions of Article 8 are under discussion with Bayfront Park Management Trust. The text of Article 8 is preliminary and will be refined based on the on -going discussions between the Conservancy and the Trust.] During the Transition Period, Bayfront Park Management Trust shall continue to manage the day-to-day operations of the Park Component and continue to receive operating funding for such operations from the sources ex1,4 °a of the execution of this Agreement. The Conservancy will consult with Bayfront Palk Management Trust during the Transition Period to plan and coordinate future Park operations: 8.02 After Transition Period. Beginning on the Operations Co eneement Date, and continuing throughout the Term of this Agreement, the. Conervancy shal maintain and operate the Park Component in accordance with the standards set forth in thisArticle 8. The Conservancy may engage contractors and vendorerform .11 or any part of s 1 services. Following the Transition Period the Conservancy shall continue0 consult and coordinate with the Bayfront Park Management Trust regarding operations, programming, events and opportunities to achieve efficiencies and to enhance thou es and enjoyment of the Park Component by Miami's residents and vi`si"t rs.. This relations hi nd process shall be on -going throughout the Term as the uses and positioning c f the Park Com c e t evolve and mature, and the Conservancy shall review the role of the:BaykaManagement Trust no less frequently than annually. 8.03 General Maintenaee. The Conservancy shall observe (and cause its contractors to obs-`�., the foil ng standardsor maintenance and repair: (a) Cleanilj debris, sari g the Park Component neat and clean, free of dirt, trash, Maintaing all walkways, sidewalks and all other improvements onent (except those facilities specifically excluded pursuant to Regularly removing or painting over graffiti, as appropriate to the (iv) Cleaning drains, sewers and catch basins on a regular basis to (v) Pruning and/or removing branches and trees. (b) Landscape Maintenance. The Conservancy shall perform (or engage a contractor to perform) the following landscape maintenance work: and facilities Clause (e) of this (ii) he Park Co gtion 8.03; nature of the surface. prevent clogging. #4435018 v8 20 (i) Pruning and trimming trees and shrubs that are overextended, dead or are otherwise unsafe or unsightly, to maintain their natural form. (ii) Removing or destroying any weeds from paving blocks, pavement, cobbled or concrete areas, and elsewhere, as needed. (iii) Applying fertilizer to trees, shrubs, plants and other lawn areas, as appropriate. (iv) Replacing any plants or trees that ar dead, diseased and/or otherwise unhealthy with healthy specimens of substantially equ type and reasonable size, where appropriate. (v) Reseeding and/or re-sodding;;gras-covered areas, as needed. (vi) Raking and collecting a es. (vii) Watering all trees; necessary to maintain such vegetation in a healthy conch (viii) Mowing a cjedging grass-covxsareas as needed. (c) Repairs. Repairs shall int not be liinit [ft the following: (i) Benches or Oth S eang: slats, as needed, and paint>nbnes, as needed and/or replacing any bro extent feasible, replaceme existing walls :b i ers rand/or fe w ali,s� or mate II Barriers, Bridges and/or Fencing: Repairing, removing ially cracked kal1`s, barriers, bridges and/or fencing. To the shall match the materials and designs of plantl cags and grass -covered areas as ig any broken or missing bench (iii) Paths: ' Kee ; ing all paved surfaces and unpaved paths in a safe and attradtiv dition. To the ent feas`i1 e, replacement materials shall match existing materials. Notwithsta dig the foregoing the City shall be responsible for maintenance of all roads and sidewalks adjac to the perr r eter of the Site, including, without limitation, sewers and catch basins. (d) She Conservancy shall maintain all graphics in a first class condition, and promptly cleaning al vandalized or damaged signs or replacing such vandalized or damaged signs with new signs that match other installed signs. All Signs shall comply with applicable Sign codes and Sign Regulations. (e) Facilities. The Conservancy shall maintain all recreation facilities and equipment in the Park Component, other than utilities, fire hydrants and emergency call boxes, and any other facilities and equipment that are located in the Park Component and are operated pursuant to concession agreements. #4435018 v8 21 (f) Monument Maintenance. Maintaining all monuments and other Park Improvements in good condition and repair. 8.04 Programming and Operations. During the Transition Period, the Conservancy shall develop and refine the operational plan for the Park Component consistent with the new Park Improvements, including the determination of the appropriate services to be provided and their frequency, and shall identify service providers and vendors suitable to undertake such responsibilities. The Conservancy shall also develop annual operating budgets, and identify likely public and private sources of funding for such operations as )well as funds that may be available from revenue producing events and Concessions withiNh Park Component. The Conservancy shall negotiate service and maintenance contracts with such vendors and service providers so that they will be ready to begin operations as the aerations Commencement Date. During the Transition Period, maintenance and opef.tion of "I nPark Component will continue to be performed by the Bayfront Park Management Trust v which may continue to receive revenues from events and concessions managed or authorized b�he Bayfront Park Management Trust. The Conservancy will work with the Bayfront Park Malgement Trust to coordinate the operation of Museum Park to 'ttic extent feasible and safe it fight of any construction of Park Improvements that may commence staring<Transition Period. Durin g 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 cry cement of the' erience of Museum Park as a unique and creative venue for the enjoym ; aicl preciation'�;ami by its residents and visitors, and to create programs and activitie that wr , crease pub is awareness of and interest in Museum Park. The Conservancy shall ievie wit B y rant Park Management Trust all existing contracts and cond ions which affec the Park Conponent during the Term, and shall establish a program uti4ei which i •y existing obligations are modified, renegotiated, terminated or continued after to ` ansitionPeriod as may bk contractually required, and to the extent not contractually required oa nay b esirable consistent with the Conservancy's operating vision for the Park. D ing the 'Pi sttii$the Conservancy may plan and execute events and programs in � t �t t and re n.e its vision `fr subsequent operation of the Park Component; the Cons rvancy shall o such events and programs with Bayfront Park Management Trus to' nimize any co i" the=Transition Period. rinate i is durih 8.0 Concessions e Conservancy will have the sole and exclusive license to operate and maintain food and bevee and merchandise concessions and to authorize special events within Museum .. (collectively, "Concessions."). The Conservancy shall have the authority to enter into sublicen .agreements with third parties for the management and operation of the Concessions. Projectcdtoncession revenue shall be included in the annual operating budgets, and it is intended that4he revenues from Concessions shall be used to fund operations of the Park Improvements. The nature and locations of Concessions may change over time. Throughout the Term, the Conservancy shall evaluate and modify the Concessions program to ensure that the quality and variety of the Concessions enhances the vision and mission of Museum Park. The City shall cooperate with the Conservancy in the granting of any licenses, permits or approvals of Concessions, to the extent required for any particular Concession sublicensed pursuant to this Agreement. #4435018 v8 22 8.06 Drug Free Workplace. The Conservancy shall implement and maintain throughout the term of this Agreement a drug free workplace program substantially in compliance with the provisions of FLORIDA STATUTES 287.087. 8.07 Compliance with FLORIDA STATUTES 255.60. It is the intention of the Parties that the Conservancy shall comply with the provisions of FLORIDA STATUTES 255.60. The Conservancy agrees to be subject to review and audit at the discretion of the Auditor General to ensure such compliance. The Auditor General shall give reasonable notice to the Conservancy in the event of any such proposed review or audit, anthe Conservancy agrees to reasonably cooperate in the conduct of such review or audit. In thet nt of any issues arising ��y as a result of such audit or review, or in the event of any admins ative or judicial finding that the Conservancy does not comply with the provisions of FLORIDA : ATUTES 255.60, then the Parties shall act reasonably and in good faith to resolve sual). issue o aon-compliance for the purpose of establishing or reestablishing the compliances f the Conserrva cy with FLORIDA STATUTES 255.60. APPROVALS AND CONSE Where in this Agreement the approval ©consent of an Party (including without limitation the Conservancy, any Board, Committe � p e entative of the Conservancy, or the City Manager or City Re presentative) is %cued, it iunderstood and agreed that unless specifically stated to the eontrar ,sasuch approvalor consent shall not be unreasonably withheld, conditioned, or delay sib. Where r in this Agre went the approval or consent of the City is required, except as` otherwise specifically provide Orein, or as may otherwise be required by Applicable Laws in the opi n l� Ity Attorney, the written approval or consent regarding the matter i question by t l City 1V ag Toi authorized the Manager's designee the City Representative on chaff of the City shall satisfy the requirement for approval or consent of the City far: all purposes. 'Tc Partie saeknowledge that when the City acts or exercises its proprietaryrights or oblig tks unde is Agreement, it is doing so in its capacity as the fee owner of =ties: Site and note a municipality, and that the role of the City as a sovereign municipality i separate and alStinct from the role of the City as the fee owner of the Site under this Agreement;Parties Dither acknowledge and agree that the City expressly reserves its governmental , pla t g leev 1. policy and regulatory and municipal functions in accordance with Applicable Law, its Ch r, Code , Comprehensive Plan, and Zoning Ordinance. ARTICLE 10 INSURANCE/ INDEMNITY AND HOLD HARMLESS 10.01 Insurance. [DRAFTING NOTE: The text of Article 10 is presented for discussion only. Details of insurance requirements should be determined in discussion with the relevant insurance consultants of the City and the Conservancy.] The Conservancy shall cause the Architect, the Construction Manager or Contractors and subcontractors (as appropriate) #4435018 v8 23 to purchase and maintain, the insurance policies described in this Section (the "Insurance Policies"). The premiums for the Insurance Policies shall be included in the Project Budget. The Conservancy shall furnish to the City prior to the date the Conservancy first undertakes any testing or Site preparation work on the Site, which indicate that insurance coverage has been issued in the name of the Conservancy and the City and which meets the requirements as outlined below: (a) Builder's Risk Insurance: Builder's risk insurance for direct physical loss or damage resulting from an insured peril to the building, structures and other improvements comprising all or part of the Work, including materials and equip ott that are intended for incorporation into the Work. The policy shall include coverage for sical loss or damage from fire and other perils as are included under an "all risk" or "specialirpolicy to include named windstorm and flood insurance. The Builder's Risk Insurance polic all be in the name of Conservancy and the City. The builder's risk insurance shag siiecifically ure the construction materials and equipment purchased for the Park Improvetents for incorporationthe Work. (b) Professional Liability Insurarne rofessiona1 liability msurt e for losses that arise out of the professional services of the Architect and other professionals, working on the Park Improvements shall be provided with policy limitso less than [$5,000,000.00] per claim/annual aggregate. If the Conservancy obtains ContingentProfessional Liability Insurance or Owners Protective Professional Indemnity Yinsurance in ordecomply with this coverage requirement then the City shall be an additidrl l in used to such prr fessional liability insurance policy. If this option is exercised, a certificate f insur �c for the architect will also be provided. Required professional liability insurance shall '` ovrd" co 'e ; from the commencement of the design work for the a lica �� se and shall ;o tmue for less than five (5) years after the completion of each Phase rthe P o c . (c) (AS Coln ensation: Workers' compensation insurance meeting the statutory requirements of the S i It d g asapp .`i able, Chapter 440, Florida Statutes. party bo ConserVa limit for bo aggregate. Tl injury or p r the Constructs' jury and prop Ze'Ushall be sh Liabi3 y dai Mana Commercial general liability insurance coverage for third cairns (i) arising out of services performed by the Contractors, and subcontractors for a combined single damage of not less than [$5,000,000.00] each occurrence/annual n as additional insured with respect to this coverage (e) sinesAutomobile Liability Insurance: Automobile liability insurance covering all owned, no led and hired vehicles used in connection with this Agreement in an amount not less than [$1 000,000.00] policy shall be endorsed to provide Broadened Coverage for Covered Autos — Endorsement CA 9948 (or equivalent) for the Business Auto, Motor Carrier and Truckers Coverage Forms, if applicable. The foregoing policy limits may be achieved by any combination of primary and excess policies so long as the overall minimum limits are procured. The City acknowledges that the Conservancy may consider a "developer controlled" insurance program, which meets the requirements as set forth in this Article 10. #4435018 v8 24 10.02 General Insurance Provisions. The Insurance Policies required in Sections 10.01(a), (d) and (e) shall name the City and the Conservancy as additional insured contain waivers of subrogation where appropriate in favor of the City and the Conservancy, and shall be maintained and kept in force at least through Final Acceptance with the exception of Builder's Risk which will be kept in force through substantial completion. The City shall be named as a loss payee on the Builders Risk Policy required in Section 10.01(a). The Conservancy shall provide the City Representative written notice of any material changes to the Insurance Policies within thirty (30) days prior to the date the change becomes effective, if practicable, but in no instance later than the date such changes become effective. The Insurance Policies shall be obtained from financially sound insurance companies rated not less,tiA. VII by A.M. Best & Company (or any equivalent rating agency approved by the C. Risk Management Division, which approval shall not be unreasonably withheld, delayed o On o led) and authorized to do business in the State. Any and all costs incurred by the Conservancy scharging obligations under this Article 9 shall be included as Project Costs. 'l'd key limitscd in this Article 10 apply to the first Phase. For Subsequent Phases, the t rties agree to negotiate` i good faith and establish appropriate limits based on customary ity practices for similar rig s gat the time of commencement of the Subsequent Phases. 10.03 Hold Harmless/ Indemnity Relative to Cone The Conservancy agrees to hold° City ,its officials and employees, against attorney's fees, of any Architect, Landscape Construction and/or Project manager, contractor other third person with Conservancy respect to the Premise interpreted to imply a1 interest or estate to any 1 subcontractor, material pet improveme t r Ally -es Nothfii consent°-. kblity involving e Premise 1a11 pro that the.cntracting party agrees in any su agreements 10 04Hold Harmless }ction and Design Professionals visa armless and de erid from and to indemnify the ridllG claims, demands and expenses, including Mv rchiteet"F%sign / Build Firm, Design Professional, 1ornsmaterial person, laborer or any as contras ed or otherwise is found liable, in ontained in this Agreement shall be deemed, construed or The ConservVey on the part of City to subject the City's er any mechanic's or other lien asserted by any contractor, sr ,against any part of the Premises or any of the acts, subcontracts, purchase orders, or other Agreements for the waiver of any lien rights in the Premises and provide )und by such provision and include the waiver provision demnity — General The Corincy a ., .des to hold the City harmless, and defend from and to indemnify the City, its office an ti mployees, from and against any and all claims, suits, actions, damages or causes o�a bn of whatever nature, for any personal injury, loss of life or damage , loss or destruction to Premises or any real or personal property or other improvements sustained in or on the Premises, by reason of or as a result of the Conservancy's uses, acts, omissions, undertakings, programs, or day to day or other operations thereon, and from and against any orders, judgments or decrees which may be entered thereon, and from and against all costs, attorneys' fees, expenses and liabilities incurred in and about the defense of any such claims and the investigation thereof; even if the claims, costs, liabilities, suits, actions, damages or causes of action arise from the negligence or alleged negligence of the City, including any of its employees, agents or officials. #4435018 v8 25 11.01 and covenants to the Conservancy that the City A Agreement, and the execution, delivery, and perfon been duly authorized by all necessary governmental actin customary regulatory approvals (in the 1y's sovereign capae permits which are required for the devel went, constructro Improvements). The City Mayor or his wine i the party deliver this Agreement on behalf of the CitySan All necessary governmental action required' execution, delivery and perfc a valid and binding obligation terns. The City Representative City as provided in this Agreemen 11.0. represen Florida Not existing under Further, the Conservancy shall indemnify, defend and hold the City, its officials and employees, harmless from and against any and all claims, actions, damages, liabilities and expenses arising from or caused by the presence, in or about the Premises, of any Hazardous Materials placed on or about the Premises by The Conservancy , or its agents, employees or assignees, or at User's direction, or by User's failure to comply with all applicable Environmental Laws. 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 ARTICLE 11 REPRESENTATIONS, WARRANTIE ,COVE City Representations, Warranties and pCovenants. The City rsents, warrants 11 powerand authority to ter into this oft s Agreement by the City have "other than all of the other various as a municipality), licenses and e and operation of the Park ;Authorized to execute and ecutedrnd delivered this Agreement. en taken to duly authorize the ice by the Cit i.irsuant to this Agreement. This Agreement is e City, enforceable against the City in accordance with its 11 in due course be duly authorized to act on behalf of the ubject to Applicable Laws. . i "se Re tiesentatlb s, C%t arranties and Covenants. The Conservancy fancy arrants'aId°ov a) The CO Profit Corpo e aws of the S the City that: rvancyi a not -for -profit corporation, incorporated under the ton Act; FLORIDA STATUTES 617, duly formed and validly of Florida and in good standing. (b) e Conservancy is designed and operated comply with all requirements to hold tax exempt status u s. 501(a) of the Internal Revenue Code, as an organization described in s. 501(c)(3) of the ln rnal Revenue Code. The Conservancy will timely comply with the requirements of the Internal Revenue Service for a determination of their tax exempt status. (c) Administrative salaries and benefits of the Conservancy shall not exceed 15 percent of gross revenue, as those terns are used in FLORIDA STATUTES 255.60(d). (d) The Conservancy will comply with all applicable provisions of Florida Statutes 255.60 that pertain to this Agreement and the acts, undertakings and duties of the Conservancy pursuant to this Agreement #4435018 v8 26 (e) The Conservancy 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 consghts and approvals of any Person required in connection with the Conservancy's execution of1greement have been obtained. The Conservancy will comply with the Florida Public Record ;Aet, Cha r 119, Florida Statutes including the applicable section provides that the Conservancy iicting as e 'ontractor shall additionally comply with Section 119.0701, Florida Statutes, including vI Out limitation (1) keep and maintain public records that ordinarily nd necessarily would b required by the City to perform this service ; (2) provide the public with access to public,ords on the same terms and conditions as the City would et their ost pro ded by Chapter;$.19, Florida Statutes, or as otherwise provided by law ; (3) ensure that public records thee are exempt or confidential and exempt from disclosure are not disclosed except as authorized by law; (4) meet all requirements for retaining:public records and r nsfer, at no cost, to the City all public records in its possession uponn ination of this Ag ment and destroy any or duplicate public records that are exempt conf dential and ex-e, ''from disclosure requirements ; (5) All electronically stored public reacor s must e provided to the City in a format compatible with the City's informationtec% lb y y terns (g) 11.03 Mutual-ovenants (a) do so by the othe further acti transaction rovided fo however, i1 m l instances to a reasol and to ecessa r, and as open as each shall be reasonably requested to executed any further documents and take any necesay or expedient in order to consummate the out the purpose and intent of, this Agreement, subject, and approvals. In exercising its rights and fulfilling its obligations under this Agreement, each of the Partie 11 act in good faith. (c) I' Fury shall terminate this Agreement on the ground of ultra vires acts or for any illegality or on th basis of any challenge to the enforceability of this Agreement, except as otherwise permitted in this Agreement. Subject to the preceding sentence, no such challenge may be asserted by any Party except by the institution of a declaratory action in which the Parties are parties. (d) Should either Party receive knowledge about any matter which may constitute a breach of any of its warranties or covenants set forth in this Article 11 which arises after the date of this Agreement, it shall promptly notify the other Party of the same in writing. #4435018 v8 27 (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. (f) All covenants, representations and warranties cont ined in this Agreement shall survive the execution and delivery of this Agreement. No actin tae=;pursuant to or related to this Agreement, including any investigation by or on behalf q a Party shall be deemed to constitute a waiver bythe Partytakingsuch action of compliance w th ,fi representation, warrant A �' P � Y, condition or agreement in this Agreement. (g) In exercising its rights and fulfillin pits obligations under th s Agreement, the City and the Conservancy shall act in good faith Notwithstanding the foregoing, each Party acknowledges that in each instance under this Agrees ent where Party is oblig.t d' o exercise good faith or to use good faith efforts, such Party shall n9 b egti ed tp expend any funds, or grant any other consideration of any kind, in the performance of Stich -undertaking, and each Party further acknowledges that the obligation of any Patty to act in good `la,a or undertake good faith efforts other guaranty that the result which the Parties are no Party sloe liable for any failure to complied with its obligation to act in does not constitute a warranty, representatid) attempting to achieve will be successfully ate achieve the result or results intended so long *the good faith. (h) By or his designee to exe9 approval of the City Atto' implement the intent of this reasonable a r` s ove execute; an of such pea b no Part under this Ag ecuti n behal as to al be r en ent or this Agreerient, the City hereby authorizes the City Mayor the City , subject to compliance with Applicable Laws and egal form, anYiOlitional ancillary documents necessary to ithst ng the foregoing, (a) each Party shall have form and issttance of all documents which it is asked to ed to fundamentally change any rights, duties or obligations =other agreement. ARTICLE 12 DEFAULT 12.01 Conse c q Default. In the event of the failure of the Conservancy to perform any of the covenants,,$ nditions or agreements which are to be performed by the Conservancy under this Agreement, and the continuance of such failure for a period of ninety (90) consecutive days after written notice in adequate detail from the City (provided, however, if such failure cannot reasonably be cured within ninety (90) days, and the Conservancy, within said ninety (90) day period, shall have commenced and thereafter continued diligently to prosecute the cure of such failure, said failure shall not constitute a default hereunder), then the City, to the fullest extent permitted by law, shall have the right to pursue any and all remedies available at law or in equity, including the right to terminate this Agreement as to the Conservancy after providing #4435018 v8 28 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) clay period, and the City, within such ninety (90) day period, shall have commenced and thereafter continued diligently to prosecute the cure of such failure, said failure shall not constitute a default hereunder), then t`he Conservancy, to the fullest extent permitted by law, shall have the right to pursue any d all remedies available at e law or in equity, including the right to terminate this Agreemnt after providing thirty (30) days notice to the City, sue for and collect damages and to spcfically�enforce the rights of the Conservancy asserting the default, and to enjoin the.City `F he Citexpressly reserves its immunities, priveledges, defenses and immunities as a Florida municipal cat*tion. 12.03 Force Majeure. For the purpose o neither the City (including the City Manager) nor the considered in breach of or in default in any of its obligati of Force Majeure. All Force Majeure Byents must persist of they provisions of th Agreement, sere icy ,as the case May be, shall be under this Agreement in the event Bond the reasonable control of the party asserting the delay. In the event Hof the occurrence of a $,such Unavoidable Delay, the time for the performance of the covenants t a is ons of this A lent shall be extended for the period of Force Majeure. 12.04 Obligations remedies of the Parties cumulative. The exercise by the exercise by it, at the'sale o or for any other default o respect to pe i m nee, mani its own obMgation under this arty of any o yes or more of such remedies shall not preclude P ferent times, of any other such remedies for the same default ther ?=arty. No waiver made by either Party with time ofai� obligation of any other Party or any condition to anent shall be considered a waiver of any rights of said Party with meet to the particu aobligati on ..f any other Party or condition to its own obligation, or a waives any respect in ° ® ard to any other rights of said Party. All notice and cure periods applicable t alleged default all b tolled in the event that a Party challenges the existence of the alleged default in an Arbitration or other legal proceeding until the date that the arbitrator or presiding authorenders adecision in the proceeding, at with time, if such Party is found to be in default, the cure period li 11 commence. s and Remej°Cumulai Cure Periods. The rights and rovided at lay equitf or under this Agreement, shall be any rd 12.05 No Indirect Damages. In no event shall any Party be liable under any provision of this Agreement for any special, indirect, incidental, consequential, exemplary, treble or punitive damages, in contract, tort or otherwise, whether or not provided by statute and whether or not caused by or resulting from the sole or concurrent negligence or intentional acts of such Party. Furthermore, the limitation of liability herein shall not apply to any indemnification for third party claims available at law or expressly provided in this Agreement. #4435018 v8 29 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 pox,authority and right, on behalf of the City, and without any further resolution or action of thei'd, except as otherwise specifically provided in this Agreement, and so long as such actins or approvals do not cause the expenditure of any City funds, violate Applicable Law, [an n ate the Resolution], to do any of the following: (a) review, approve and consent, in w iting to documents-, 'Jails, applications, and requests required or allowed by the Conservancy toA`be submitted to the City jiresentative, the City pursuant to this Agreement, including the Dar Documents and forms o i e Architect Contract or Construction Management Contract; (b) consent to and apprge, in writing, acf t i Conservancy or other Persons for which psent and/or appr Representative, the City under this Agreemen (c) sign any and all documents on et the foregoing approvals, co Ts_ents.and appoint: manner; and �` ° (d) to 120 days and that do not o or the City undee 4 gteemeri Reives7 the City and shall bind the C of the pro provisions ity init� y consent, Live shall be bin�ft nnection witht be protected i such Ina. itten eWensions of tint' vis Lute ally affee events and undertakings by the 1 is required from the City City necessary or convenient to and shallsign said document in a timely t extend deadlines or time periods by up he rights or obligations of the Conservancy al, decision,,or determination under this Agreement by the City g on they. The Conservancy and any other Person dealing with LL Agreement or any matter governed by this Agreement may rely lying upon the authority of the City Representative to act for and r. The City shall cause its City Representative to comply with all ment. 13.02 Designaioon of the Conservancy Representative. The Conservancy shall name a representative (the "Conservancy Representative") who shall act as liaison and contact person between the Conservancy and the City in administering and implementing the terms of this Agreement. The Conservancy Representative shall have the power, authority and right, on behalf of the Conservancy, and without any further resolution or action of the Conservancy, except as otherwise specifically provided in this Agreement to do any or all of the following: (a) review, approve and consent to documents, plans, applications, and requests required or allowed by the City Representative, the City to be submitted to the Conservancy #4435018 v8 30 pursuant to this Agreement, including Design Documents and forms of the Architect Contract or Construction Management Contract; (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. Any consent, approval, decision, determination, waivo'r o amendment under this Agreement by the Conservancy Representative shall be binding on he Conservancy. The City and any other Person dealing with the Conservancy in connecti matter governed by this Agreement may rely and shall�be fully protected relying upon the authority of the Conservancy Representative to actbr and bind the Conse A : ey in any such matter. The Conservancy shall cause the Conservancy Representative to compff all of the provisions of this Agreement. 4ARTICLE 14 MISCELLAl S?ROVISIONT 14.01 Sovereign Rights. The City s11'11 ret as a municipality under S ate,jaw with resp c µR understood that: is sovereign prerogatives and rights qv� in Park Project. It is expressly y, (a) "I ity retain �� all of its sov sign prerogatives and rights arid regulatory authority (quasi-judicial or 0t ierwinuncipa corporation under State law and shall in no way be estopp4 virtue of ifs ' reement from withholding or refusing to issue any approvals afi°`its m ipal reg l tc ry capacity of applications for building, zoning, planning or devclopme " under prese' or futu laws. and regulations whatever nature applicable to the planning, resign, construction and demenu of the Museum Park Project, or the operation thereof, or b4!ible for the sain and z (b) The City shall not by virtue of this Agreement or any other agreement entered into by the iil" relatingo the, be obligated in its municipal regulatory capacity to grant the Conservancy any appr'lo applications for building, zoning, planning or development under present or future laws a d ordinances of whatever nature applicable to the planning, design, construction, development and/or operation of the Project. Notwithstanding and prevailing over any contrary provision in this Agreement, any covenant or obligation of the City in its municipal regulatory capacity that may be contained in this Agreement shall not bind the City Commission or any City department or authority, committee or agency to grant or leave in effect any zoning changes, variances, permits, waivers, or any other approvals that may be granted, withheld or revoked in the discretion of the City in #4435018 v8 31 its municipal regulatory capacity or other applicable governmental agencies in the exercise of its police power. 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 14.03 Prevailing Laws and Venue:. This Development Agreement shall be governed by the laws of the State of Florida. If any term, covcilan't,te, or condition of this Agreement or the application thereof to any person or circumst `aces shall, to any extent, be determined by appropriate judicial authority to be illegal in d or unenforceable the remaining terms, covenants and conditions of this Agrecm nt, or application of such tern, covenant or condition to persons or circumstances other than those as touch it is held invalid or unenforceable, shall not be affected thereby and T e ch term, covenant; nor condition of this Agreement shall be valid and be enforced to the fullest extent pernitted by lat e Venue for any action under this Agreement not required to be resolved in Arbitration shall 1 the Circuit Court of the Eleventh Judicial Circuit in and for M a, - ade ounty, Florida.< Administrative Resolution of Disputes. The Parties will attempt to resolve tty disputes under the Agreement in accordance with non -binding mediation, xor arbitration in Miami — Dade -County in accordance with procedures the Parties will agree to v kt thirty( 30) days f hefinalCity or Conservancy decision as to such dispute. 14.04 Wafer ury Tria , The Parties hereby each knowingly, irrevocably, voluntarily and intentionally waive aft ght ti h Party may have to a trial by jury in respect of any action, proceeding o G unterclaim biased on thisgr'lent, or arising out of, under or in connection with this ,� Agreemee any a endment or modification of this Agreement, or any other agreemcl t executed by'a dbetween tic Parties in connection with this Agreement, or any course of co 1d t course of de a g, statei :erits (whether verbal or written) or actions of any Party hereto. T i „waiver of jur fial provision is a material inducement to the Parties to enter into this Agreemeen 14.05 NO Ss. Al y notice or communication under this Agreement shall be in writing and shall be deemed's .a ently given if hand delivered or dispatched by United States certified mail, postage prepaid`=return receipt requested, or by nationally recognized overnight delivery service, to the appropriate party or entity, and their respective counsel and authorized representatives as set forth below, at the address specified below or at such other address of which the other parties shall be duly notified in writing: #4435018 v8 (a) In the case of a notice or communication to the City, to: City of Miami Attention: City Manager 32 Miami Riverside Building, 10th Floor 444 S.W. 2nd Avenue Miami, Florida 33130 City Attorney City of Miami Miami Riverside Building, 9th Floor 444 S.W. 2nd Avenue Miami, Florida 33130 (b) In the case of a notice or communication to the ty Project Liaison, to: (c) City of Miami City Manager's Office 444 S.W. 2nd Avenue Miami, Florida 33130 Attention: In the case of a notice or communication o` the Conservancy, to: Museum Park Conservancy c/o The Miami Found 40 N.W. 3'"d Street, Ste Miami, Florida 33128„ Attentio Rebecca Mandel an, VickPresident Sty aYs Alhac tentio `der -.miller Weis 'chard E. Schatz, Esq. Steet, Suite 2200 *F10 All h te` es shall be d � flied received when actually delivered if delivered by hand or by a nationally recognized overnight delivery service and shall be deemed delivered upon confirmation of rccet «t (or r sal) by the delivery service or three (3) clays following mailing in the event mailed as provided above. All notices of approval, disapproval or default to be given under this Agreement i tst be in •writing and must be given as provided in this Section. 14.06 Titles of Articles and Sections. The titles of the several parts, Articles and Sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. 14.07 Counterparts. This Development Agreement is executed in several counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. #4435018 v8 33 14.08 Successors and Assigns. All of the covenants, conditions and obligations contained in this Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the Parties. 14.09 Construction and Interpretation. Reference to any Article, section, paragraph, exhibit, or subpart thereof, unless otherwise provided, shall refer to this Agreement. Use of the tern "including" shall mean "including, without limitation". Each of the Parties hereto and their counsel have reviewed and revised, or requested revisions to, this Agreement, and the usual rule of construction that any ambiguities are to be resolved against they adrafting party shall be inapplicable in the construction and interpretation of this Agreeing l idd any amendments or exhibits to this Agreement. 14.10 Attorneys' Fees. If it shall become necessary any pay to employ an attorney to enforce or defend any of its rights or remedies hereunder because o4ie default or breach of any covenant, condition, or agreement hereunder by�any other party, each party shall be responsible for its own attorneys' fees and court casts, including fees and costs incurred at trial level and on appeals. 14.11 Entire Agreement. This Development Agrtrient, including the Exhibits hereto and all documents described or referenced in this Agr c ent, together contain the entire agreement among the Parties with respect g the subject matter hyreof, and supersede any and all prior written or oral agreements among the es with respect tosuch subject matter. No modification or amendment of this Agreement s al ie binding won the Parties unless such modification or amendment is in writing and ` gnec Ry the Pa to pbe bound thereby. 14.12 Incorporration of Provisions of t o Leases bf Reference. The provisions of the Leases are incorporatccdx to this A*eement by reference. went mayhot be assigned, either in whole or in part, by "$;tiisent of the other party. This Agreement is relationship of the parties and consent to Assignment may aycd. 14.13 Assigmneii any party, w considerediiique be witblid, refused, co 1Severability. any term or provision of this Agreement or the application thereof to any persoa circumstancew hall, to any extent, be invalid or unenforceable, the remainder of this Agreements ie applicion of such term or provision to the persons or circumstance other than those as to whi h it is 41d invalid or unenforceable, shall not be affected thereby, and each term and provision o tl is Agreement shall be valid and be enforced to the fullest extent permitted by law. 14.15 Nonrecourse Liability of the Conservancy Personnel. Notwithstanding and prevailing over any contrary provision or implication in this Agreement and 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), the officers, directors, partners, shareholders, members, employees and agents of the Conservancy (the "Conservancy Personnel") shall not in any way be liable under or with respect to this Agreement; and no deficiency or other monetary or personal judgment of any kind shall be sought or entered against any of the Conservancy #4435018 v8 34 Personnel with respect to liability under or with respect to this Agreement. The limitations of this Section 14.15 shall in no way limit the City'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 (provided that specific performance shall in no event require the Conservancy or the Conservancy Personnel to make additional capital contributions), (b) to recover 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. 14.16 Non -Recourse Liability of City Personnel. Notwithstanding and prevailing over any contrary provision or implication in this Agreement or in an °`o Sher instrument or document executed in connection with this Agreement, except for theird'n 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, ofce, employ agent, independent contractor or consultant of the City ("City Personae]") shall be liable ob ,y of the City's obligations under this Agreement or any instrument or document executed connection with this Agreement. Except for their criminal acts y expect to l?is Agreement (i. acts which would constitute crimes were they prosecuted for and o i ic1e l o°such acts), noaCity 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 o n successor in interest to the Conservancy, or for any other obligation,-,-,, .the terms of t1is ea eement. The limitations of this Section 14.16 shall in no way limit th co ancy's rights'provided in this Agreement (a) to specific performance of each and every prow ionk of th' : Agreement or in any other instrument or document executed in connectiont1i1 � _ eement, (b)) to recover damages against the City for any ea he of this Agreement (pro ° ed that collection of damages is subject to the restrictions of this•pr ision), or (c)1 o enforce remedies against the City. 14.17 Exculpation of Tie Conservancy. - Owner acknowledges that: (i) The Conservancy is acting as a�eloert not a licensed contractor nor an architect or engineer; (ii) The Co e n ill no the performing 'any actual design services, construction services or any activities that on l ul liceiYs d contractors, architects or engineers can perform in the State of Fl �• and (iii) The',Conservancy wiil" not control the means and methods of construction; Theto* rvancy shall not lie -responsible for (i) the quality, completeness, accuracy or utility of the progra s, schedules, istrudion Schedule, plans, drawings, designs, specifications, samples or data of any arch tects, engineers, surveyors, the Construction Manager (or general contractor), testilaboratories or other consultants and design professionals for the Project, or the failure of any of uch sties to carry out their work or services furnished in connection with the Project in accord"e with their respective agreements with the City (or otherwise), (ii) the construction means,'/methods, techniques, sequences or procedures employed by the Construction Manager, any other contractor or vendor that furnishes labor, materials, services or equipment in connection with or to the Project, the failure of the Construction Manager to carry out its work in accordance with the construction contract or other documents relating thereto, or any variance between the Construction Schedule and the actual time within which the Construction Manager completes the construction of the Project, (iii) Force Majeure; or (iv) any other events, facts or circumstances beyond the reasonable control of The Conservancy #4435018 v8 35 including, but not limited to, changes in market conditions, changes in labor prices, material price escalations and the like. #4435018 v8 [SIGNATURES 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 to Insutance guirements By: By: , City Attorney v °' , Risk Manag i3ent Administrator Witnesses: "CONSER MUSEUM PARK CONSERVANCY, INC., a Florida Print Name: %or -profit corpor Print Name: #4435018 v8 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