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MANAGEMENT AND OPERATING AGREEMENT

BY AND BETWEEN

THE CITY OF MIAMI,


a municipal corporation of the State of Florida

and

MAURICE A. FERRE PARK CONSERVANCY, INC.


a Florida not-for-profit corporation

__________, 2019
TABLE OF CONTENTS

ARTICLE 1 DEFINED TERMS ............................................................................................... 2


1.01 Defined Terms ........................................................................................................ 2
ARTICLE 2 TERM .................................................................................................................... 4
ARTICLE 3 FUNDING ............................................................................................................. 4
3.01 Capital Funding ....................................................................................................... 4
3.02 Funding for Operation............................................................................................. 5
3.03 Description of Park Improvements ......................................................................... 5
ARTICLE 4 OPERATING SERVICES .................................................................................... 6
4.01 During Transition Period ........................................................................................ 6
4.02 After Transition Period ........................................................................................... 6
4.03 General Standards For Maintenance ....................................................................... 6
4.04 Signs ........................................................................................................................ 7
4.05 Facilities .................................................................................................................. 7
4.06 Monument Maintenance ......................................................................................... 7
4.07 Exclusions ............................................................................................................... 8
4.08 Programming and Operations ................................................................................. 8
4.09 Reservation of park use ........................................................................................... 8
4.10 Concessions............................................................................................................. 8
4.11 Compliance with FS 255.60 .................................................................................... 9
4.12 Annual Report ......................................................................................................... 9
4.13 Public Records ........................................................................................................ 9
ARTICLE 5 APPROVALS AND CONSENTS ...................................................................... 10
ARTICLE 6 INSURANCE ...................................................................................................... 10
6.01 Workers’ Compensation ....................................................................................... 10
6.02 E&O Insurance...................................................................................................... 10
6.03 General Liability ................................................................................................... 10
6.04 General Insurance Provisions ............................................................................... 10
ARTICLE 7 REPRESENTATIONS, WARRANTIES AND COVENANTS ......................... 10
7.01 City Representations, Warranties and Covenants ................................................. 10
7.02 Conservancy Representations, Warranties and Covenants ................................... 11
7.03 Covenants .............................................................................................................. 11
ARTICLE 8 DEFAULT ........................................................................................................... 12
8.01 Conservancy Default ............................................................................................. 12
8.02 City Default ........................................................................................................... 13
8.03 Force Majeure ....................................................................................................... 13
8.04 Obligations, Rights and Remedies Cumulative; Cure Periods ............................. 13
8.05 No Indirect Damages ............................................................................................ 13
ARTICLE 9 PARTY REPRESENTATIVES .......................................................................... 14
9.01 Designation of City Representative ...................................................................... 14
9.02 Designation of the Conservancy Representative .................................................. 14
ARTICLE 10 MISCELLANEOUS PROVISIONS ................................................................... 15

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10.01 Sovereign Rights ................................................................................................... 15
10.02 No Partnership or Joint Venture ........................................................................... 15
10.03 Prevailing Laws and Venue .................................................................................. 16
10.04 Waiver of Jury Trial .............................................................................................. 16
10.05 Notices .................................................................................................................. 16
10.06 Titles of Articles and Section ................................................................................ 17
10.07 Counterparts .......................................................................................................... 17
10.08 Successors and Assigns......................................................................................... 17
10.09 Construction and Interpretation ............................................................................ 17
10.10 Attorneys’ Fees ..................................................................................................... 17
10.11 Entire Agreement .................................................................................................. 17
10.12 Assignments .......................................................................................................... 17
10.13 Severability ........................................................................................................... 17
10.14 Nonrecourse Liability of the Conservancy Personnel .......................................... 18
10.15 Non-Recourse Liability of City Personnel ............................................................ 18

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MANAGEMENT AND OPERATING AGREEMENT


Maurice A. Ferre Park Conservancy, Inc.

This Management and Operating Agreement (the “Agreement”) is made and entered into
this_______ day of ______, 2019 by and between the City of Miami, a municipal corporation of
the State of Florida (the “City”) and Maurice A. Ferre 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 an approximate 30+ acre parcel of land and
improvements commonly known as the Maurice A. Ferre Park (the “Park”), which land is more
particularly described as follows: 1095 Biscayne Boulevard, Folio # 01-4137-073-0010; 801
Biscayne Boulevard, Folio # 01-0100-000-0120; 1101 Biscayne Boulevard, Folio # 01-4137-073-
0025; 1103 Biscayne Boulevard, Folio # 01-4137-073-0016; 1191 Biscayne Boulevard, Folio #
01-4137-073-0015, Miami, Florida 33132: and

B. WHEREAS, the Park is an active, premier, waterfront destination Park, free and
open to the public; and

C. WHEREAS, the City intends the Park to be a state-of-the-art park for the benefit of
Miami residents and visitors to enjoy green space, waterfront views and the amenities and
programs of a signature urban park; and

D. WHEREAS, the City will continue to own the Park and all structures and
appurtenances thereon, and further, the City and Conservancy acknowledge and agree that the City
has not granted and will not grant the Conservancy any ownership or leasehold interest in the Park
or its structures or appurtenances; and

E. WHEREAS, the long-term operating and maintenance expenses of such a Park


creates unique challenges to the resources of the City; and

F. WHEREAS, the City desires that the management, operations, maintenance,


programming, development and third-party fundraising for the Park be handled by the
Conservancy as an independent, not-for-profit corporation qualified under Section 501(c)(3) of the
Internal Revenue Code to secure the benefits of the signatory Park for present and future
generations of Miami residents and visitors; and

G. WHEREAS, the City Mayor and City Commission desire to obtain the benefit of
professional management services from the Conservancy in connection with the management,
maintenance, programming and fundraising for the Park; and

H. WHEREAS, the Conservancy, through its directors, executives, and staff having
relationships with other governments, organizations and philanthropic donors, will share its
expertise in fundraising for the benefit of the Park; and

I. 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

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maintenance for the Park so that the Park will be operated continuously and efficiently and for the
enhanced enjoyment of the residents of Miami; and

J. WHEREAS, the City and the Conservancy both desire to include public
participation in the future planning for the Park; and

k. WHEREAS, the Mayor of the City of Miami, shall serve on the Board of the
Conservancy as a voting member; and

J. WHEREAS, the City has a Special Reserve Account for Capital Improvements
dedicated solely to the Maurice A. Ferre Park (formerly Museum Park) from the Omni CRA funds,
Acct # B-183510, as stipulated in the Global Agreement, in the amount of $28,000,000.

NOW, THEREFORE, for and in consideration of the mutual promises and conditions
contained in this Agreement, the City and the Conservancy agree as follows:

ARTICLE 1
DEFINED TERMS

1.01 Defined Terms. In addition to any other definitions contained elsewhere in this
Agreement, the following terms, when used in this Agreement and its attachments, shall have the
meanings indicated below.

“Agreement” means this Management and Operating Agreement.

“Applicable Law” means any applicable law, statute, code, ordinance, administrative order,
implementing order, charter, resolution, order, rule, regulation, judgment, decree, writ, injunction,
franchise, permit or license, of any Governmental Authority, now existing or hereafter enacted,
adopted, promulgated, entered, or issued.

“Annual Report” means the Annual Report and Financial Report prepared by the
Conservancy and delivered to the Mayor of Miami and the Miami City Commission.

“Bayfront Park Management Trust” means Bayfront Park Management Trust, a limited
agency of the Miami City Commission.

“Business Day” means any day other than a Saturday, Sunday or legal or bank holiday in
Miami-Dade County. If any time period set forth in this Agreement expires on a day other than a
Business Day, such period shall be extended to and through the next succeeding Business Day.

“Capital Improvements” means permanent infrastructure improvements or development


projects that are outside the scope of the General Standards for Maintenance in the Agreement and
which shall be funded from the OMNI CRA, Global Agreement (Acct B-183510), bond issue
funds, or other sources.

“City Default” is defined in Article 8.

“City Representative is defined in Article 9.

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“Commission” means the Commissioners of the City of Miami.

“Conservancy” means Maurice A. Ferre Park Conservancy, Inc., 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 Article 8.

“Conservancy Representative” is defined in Article 9.

“Concessions” is defined in Article 4.

“Default” means a City Default or a Conservancy Default.

“Effective Date” means the date on which the last of the Parties executes this Agreement.

“Endowment Fund” means a dedicated account to be set up at The Miami Foundation


and/or The Maurice A. Ferre Conservancy, Inc. to specifically fund management, maintenance,
operations, and programming of the Park.

“Exclusions” are defined in Article 4.

“Force Majeure” means any act of God, earthquake, hurricane or other severe weather
condition, flood, fire, epidemic, major accident, explosion, casualty, labor controversy (including
but not limited to threatened or actual lockout, boycott or strike), riot, terrorism, civil disturbance,
demonstrations, war or armed conflict, (or threats of the foregoing), delay of a common carrier, or
by reason of any other cause or causes of any similar nature.

“Governmental Authority” means any federal, state, county, municipal or other


governmental department, entity, authority, commission, board, bureau, court, agency, or any
instrumentality of any of them.

“Insurance Policies” is defined in Article 6.

“Leasehold Area” is the approximate 8-acre site within the Park, comprising the Perez Art
Museum Miami, the Frost Science Museum, the Knight Plaza, and the Museum Parking Garage,
which areas are governed by executed long-term leases with the City dated December 11, 2008,
together with Museum Drive, all of which are specifically excluded from this Agreement.

“Maurice A. Ferre Park” is defined as a 30+ acre waterfront parcel of land and
improvements owned by the City of Miami and commonly known as the Maurice A. Ferre Park.

“Operating Commencement Date” means the date the Conservancy first becomes
responsible for the operations and maintenance of the Park after satisfying all fundraising
milestones in the Agreement.

“Ordinance” means Ordinance No. ________.

“Party” means the City, the Conservancy or both as context may require.

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“Person” means any natural person, partnership, association, corporation, limited liability
company, trust, public body, authority, governmental unit or other entity.

“State” means the State of Florida.

“Term” means the initial term and/or any of the renewal terms described in Article 2.

“Transition Period” means the period between the Effective Date and the Operating
Commencement Date.

1.02 All references in this Agreement to particular sections or articles shall, unless
expressly otherwise provided or unless the context otherwise requires, be deemed to refer to the
specific sections or articles in this Agreement. The words “hereof’, ‘‘herein”, ‘‘hereunder” and
words of similar import refer to this Agreement as a whole and not to any particular section or
article. All pronouns and variations thereof used in this Agreement shall, regardless of the pronoun
actually used, be deemed to refer to the masculine, feminine, neuter, singular or plural as the
identity of the person or entity may require in the context in which such pronoun is used. “Exhibits”
refers to the exhibits attached to the body of this Agreement. Exhibits constitute part of this
Agreement.

ARTICLE 2
TERM

The City hereby engages the Conservancy, and the Conservancy hereby accepts such
engagement, to act as the management entity of the Park in accordance with the terms and
conditions of this Agreement. The initial Term of this Agreement shall commence on the Effective
Date and shall expire on the thirtieth (30th) anniversary thereof. Unless this Agreement is earlier
terminated in accordance with its terms, the Term of this Agreement shall automatically be
extended for two (2) additional, consecutive renewal Terms of thirty (30) years each, for a
maximum total Term of ninety (90) years. 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.

ARTICLE 3
FUNDING

3.01 Capital Funding. The Conservancy shall develop a Capital Improvement Plan for
the Park, which shall include projected costs and draw-down schedules from the Special Reserve
Account B-183510 ($28,000,000), as funded by the OMNI CRA, as per the Global Agreement,
including any and all extensions and including any other sources of funding (the “Capital
Improvement Plan”). Any private sector pledges or other governmental agencies with funding
opportunities shall be identified in the Capital Improvement Plan.

The Capital Improvement Plan shall be prepared in consultation with the general public,
downtown residents and shareholders, the donor community, the OMNI CRA, the City of Miami,
the Bayfront Park Management Trust, and others. The Parties anticipate that the Conservancy may
receive capital funds from individuals, businesses, foundations and other entities for some of the
Capital Improvements, and that the agreements with such donors may include naming rights with

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respect to certain components of the Capital Improvements where the amount of the funding is
sufficiently large to justify naming rights as an inducement to the grant. The Conservancy may
also seek funding and grants from governmental agencies. The City agrees that it shall use diligent
efforts to enforce the Global Agreement and funds committed to the Park from the OMNI CRA in
order to complete all necessary Capital Improvements. No real property in Maurice A. Ferre Park
may be used to secure any debt. The Capital Improvement 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 Capital Improvement Plan may suggest phasing of various
components of the Park improvements and propose alternative funding sources or design features
for future determination. The Conservancy will update the Capital Improvement Plan from time
to time as circumstances may require.

3.02 Funding for Operation. The Conservancy also shall prepare, for each year during
the Term after the Operating Commencement Date, an annual operating budget for the Park,
showing the sources and applications of all operating funds. The Parties anticipate that the
Conservancy shall receive operating funds from individuals, businesses, foundations and other
entities for private sector funding, as well as funding from other governmental agencies, and
interest payments from an Endowment Fund. The Conservancy, in its operation of the Park, may
generate fees from users, vendors, special events, concessions, licensing agreements, naming
rights and sponsors, which fees may be used for the expenses of operating the Park.

The Conservancy shall also establish Endowment Fund(s) at The Miami Foundation and/or The
Maurice A. Ferre Park Conservancy, Inc. and funds from the Endowment Fund(s) will be dedicated
to operations, maintenance, management and programming of the Park. The Agreement is
contingent upon the Conservancy satisfying timely fundraising goals. The Conservancy shall
confirm to the City deposits, gifts, pledges and/or grants of $1,000,000 (one million dollars) to the
Conservancy Endowment Fund(s) within six months following the Effective Date. Within 12
months following the Effective Date, the Conservancy shall confirm to the City, deposits, gifts,
pledges and/or grants or charitable donations of $10,000,000 (ten million dollars) to the
Conservancy Endowment Fund. The Operating Commencement Date shall be the date on which
the Conservancy confirms to the City in writing that the Conservancy has received financial
commitments totaling not less than $11,000,000 (eleven million dollars). If the Conservancy does
not achieve either the six-month or twelve-month fundraising deadline, either or both Parties may
terminate the Agreement, or renegotiate terms of the Agreement.

3.03 Description of Park Improvements. The Conservancy and the City agree and
recognize that the development of the Park improvements is intended to: (a) ensure that the Park
remains an attractive destination in order to provide recreation for its visitors, stimulate the local
economy, showcase the City and Downtown Miami and enhance the City’s reputation as an
international tourism destination; and (b) create new programming to enhance the public’s use and
enjoyment of the Park throughout the year and be a good neighbor by coordinating with the
adjacent stakeholders and downtown residential communities; and (c) develop infrastructure
improvements to improve the Park’s function and use; (d) to seek community input into the
planning for the Park on an ongoing basis; and (e) to enjoin the Park in addressing resiliency and
climate change issues.

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ARTICLE 4
OPERATING SERVICES

4.01 During Transition Period. During the Transition Period, Bayfront Park
Management Trust shall continue to manage the day-to-day operations of the Park and continue to
receive funding for such operations from the City/Trust sources existing as of the execution of this
Agreement. The Conservancy will consult with Bayfront Park Management Trust during the
Transition Period to plan and coordinate future Park operations.

4.02 After Transition Period. Beginning on the Operations Commencement Date, and
continuing throughout the Term of this Agreement, the Conservancy shall maintain and operate
the Park in accordance with the standards set forth in this Article 4. The Conservancy may engage
contractors and vendors to perform all or any part of such services. Following the Transition
Period, the Conservancy shall continue to consult and coordinate with the Bayfront Park
Management Trust regarding operations, programming, events and opportunities to achieve
efficiencies and to enhance the use and enjoyment of the Park by Miami’s residents and visitors.
This relationship and process shall be on-going as the uses and positioning of the Park evolve and
mature, and the Conservancy shall review the role of the Bayfront Park Management Trust no less
frequently than annually.

4.03 General Standards For Maintenance. The Conservancy shall observe (and require
its contractors to observe) the following standards for maintenance and repair:

(a) Cleaning.

(i) Keeping the Park neat and clean, free of dirt, trash, debris, and
obstructions.

(ii) Maintaining all walkways, sidewalks and all other improvements


and facilities in the Park (except those items specifically excluded pursuant to Clause (e)
of this Section 4.03.

(iii) Regularly removing or painting over graffiti.

(iv) Exterior cleaning of drains, sewers and catch basins on a regular


basis to prevent clogging.

(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:

(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.

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(iii) Applying fertilizer to trees, shrubs, plants and other lawn areas, as
appropriate.

(iv) Replacing any plants or trees that are dead, diseased and/or
otherwise unhealthy with healthy specimens of substantially equal type and reasonable
size, where appropriate.

(v) Reseeding and/or re-sodding grass-covered areas, as needed.

(vi) Raking and collecting leaves.

(vii) Watering all trees, shrubs, plantings and grass-covered areas as


necessary to maintain such vegetation in a healthy condition.

(viii) Mowing and edging grass-covered areas as needed.

(ix) Adding additional plants, trees, shrubs, flowers as necessary

(x) Relocating trees and plant material as necessary

(c) Repairs. Repairs shall include, but not be limited to, the following:

(i) Benches or Other Seating: Replacing any broken or missing benches


as needed

(ii) Walls and/or Fencing: Repairing, removing and/or replacing any


broken or materially cracked walls, and/or fencing. To the extent feasible, replacement
materials and designs shall match the materials and designs of existing walls, barriers
and/or fencing.

(iii) Paths: Keeping all paved surfaces and unpaved paths in a safe and
attractive condition. To the extent feasible, replacement materials shall match existing
materials. Notwithstanding the foregoing, the City shall be responsible for maintenance of
all roads and sidewalks adjacent to the perimeter of the Park and in the interior of the Park,
including, without limitation, sewers and catch basins.

4.04 Signs. The Conservancy shall maintain all graphics in a first-class condition, and
promptly clean all vandalized or damaged signs or replace such vandalized or damaged signs with
new signs that match other installed signs. The Conservancy shall add signs as needed that are not
deemed to be a Capital Improvement.

4.05 Facilities. The Conservancy shall maintain, in good condition and repair, all
recreation facilities and equipment in the Park, other than utilities, fire hydrants and emergency
call boxes, and any other facilities and equipment that are located in the Park.

4.06 Monument Maintenance. The Conservancy shall maintain all permanent


monuments and other permanent sculptures in good condition and repair.

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4.07 Exclusions. The Agreement specifically excludes the Conservancy from any
responsibility for maintaining and funding the following items within the Park: the Leasehold
Areas for PAMM, Frost Science Museum, Knight Plaza and the Museum Parking Garage; Miami-
Dade Metromover station; Miami Water & Sewer Authority processing plant; all seawalls; all
utilities including electric, water & sewer; public access roads, including Museum Drive; ongoing
resiliency projects; and sculptures on loan.

4.08 Programming and Operations. The Conservancy shall develop and refine the
operational plan for the Park, including the determination of the appropriate activities 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 within the Park. During the
Transition Period, maintenance and operation of the Park will continue to be performed by the
Bayfront Park Management Trust, which may continue to receive revenues from events and
concessions managed or authorized by the Bayfront Park Management Trust. Upon the Operating
Commencement Date, the Conservancy shall develop and refine programming for the Park
consistent with its repositioning as a premier urban park, for the purpose of fully exploiting the
Park and the enhancement of the experience of the Park as a unique, creative and artistic venue for
the enjoyment and appreciation of Miami by its residents and visitors, and to create programs and
activities that will increase public awareness of and interest in the Park. The Conservancy shall
review with Bayfront Park Management Trust all existing contracts and concessions which affect
the Park during the Term, and shall establish a program under which any existing obligations are
modified, renegotiated, terminated or continued after the Transition Period as may be contractually
required, and to the extent not contractually required or as may be desirable consistent with the
Conservancy’s operating vision for the Park. During the Transition Period, the Conservancy may
plan and execute events and programs in order to test and refine its vision for subsequent operation
of the Park, the Conservancy shall coordinate any such events and programs with Bayfront Park
Management Trust to minimize any conflicts during the Transition Period.

The Conservancy, in order to maintain and operate the Park, may negotiate and enter into service
and supply contracts as it deems necessary and reasonable for the proper operation of the Park.

4.09 Reservation of park use. Maurice A. Ferre Park shall be reserved 90 percent of the
days of each fiscal year for free access and use by the general public. This reservation of park use
shall not impair previously executed contracts.

4.10 Concessions. The Conservancy will have the sole and exclusive license to operate
and maintain food and beverage and merchandise concessions and to authorize special events
within the Park (collectively, “Concessions.”). The Conservancy shall have the authority to enter
into licensing, sponsorship, special events contracts and marketing and rental agreements with
third parties. Projected Concession revenue shall be included in the annual operating budgets, and
it is intended that the revenues from Concessions shall be used to fund operations of the Park. 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 Maurice A. Ferre Park. The City shall cooperate
with the Conservancy in the granting of any licenses or sublicenses, permits or approvals of

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Concessions, to the extent required for any particular Concession sublicensed pursuant to this
Agreement.

The Conservancy is fully authorized to allow the sale and/or dispensing of alcoholic beverages for
special events, performances or programs as approved by the Conservancy. The Conservancy will
submit a permit and permit fee (if applicable) for alcohol sales and/or dispensing as specified in
City Code. All alcoholic beverages shall be in soft containers. Such sales or dispensing of alcoholic
beverages are subject to compliance with all applicable state and local laws, rules regulations and
with any special conditions set forth on the application/permit form.

4.11 Compliance with FS 255.60. It is the intention of the Parties that the Conservancy
shall comply with the provisions of FS 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,
and the Conservancy agrees to reasonably cooperate in the conduct of such review or audit. In the
event of any issues arising as a result of such audit or review, or in the event of any administrative
or judicial finding that the Conservancy does not comply with the provisions of FS 255.60, then
the Parties shall act reasonably and in good faith to resolve such issues or non-compliance for the
purpose of establishing or reestablishing the compliance of the Conservancy with FS 255.60.
Without limiting the generality of the foregoing, the Parties agree that with respect to FS 255.60
and any other statutory requirements now or hereinafter in effect and affecting the validity and/or
enforceability of this Agreement, such statutory requirements are made a part of this Agreement,
as if fully set forth herein, to the minimum extent necessary to bring this Agreement into
conformity with the requirements of such statute(s), to the extent applicable to this Agreement,
and prevent invalidity or unenforceability, and, as so modified, this Agreement shall continue in
full force and effect.

4.12 Annual Report. The Conservancy shall deliver an Annual Report to the Miami City
Commissioners and City Manager no later than April 1st of each year. The Annual Report will
summarize operations, programming, maintenance, capital improvements and fundraising efforts.
The Annual Report shall also contain a Financial Report which includes a budget for the fiscal
year for management, operations, maintenance, programming and capital improvements.
Supplemental budgets may be submitted as needed.

4.13 Public Records. The Conservancy shall comply with Florida’s public records law.
The Conservancy shall (1) keep and maintain public records that would be required by the public
agency in order to perform the service, (2) provide the public with access to public records on the
same terms and conditions that the public agency would provide records and at a cost that does not
exceed the cost provided in Chapter 119, F.S., (3) ensure that public records that are exempt or
confidential from public records disclosure requirements are not disclosed except as authorized by
law; and (4) meet all requirements for retaining public records and transfer to the City all public
records in possession of the Conservancy upon termination of the Agreement.

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ARTICLE 5
APPROVALS AND CONSENTS

Where in this Agreement the approval or consent of any Party (including without limitation
the City Representative) is required, it is understood and agreed that unless specifically stated to
the contrary, such approval or consent shall not be unreasonably withheld, conditioned, or delayed.
Wherever in this Agreement the approval or consent of the City is required, except as otherwise
specifically provided herein, the written approval or consent regarding the matter in question by
the City Representative or his/her designee on behalf of the City shall satisfy the requirement for
approval or consent of the City for all purposes. The Parties acknowledge that when the City acts
or exercises any rights or obligations under this Agreement, it is doing so in its capacity as the fee
owner of the Park and not as a municipality, and that the role of the City as a sovereign municipality
is separate and distinct from the role of the City as the fee owner of the Park under this Agreement.

ARTICLE 6
INSURANCE

6.01 Workers’ Compensation. The Conservancy shall maintain workers’ compensation


insurance meeting the statutory requirements of the State, including, as applicable, Chapter 440,
Florida Statutes.

6.02 E&O Insurance. The Conservancy shall maintain Officers and Directors Liability
insurance coverage at all times.

6.03 General Liability. The Conservancy shall maintain commercial general liability
insurance coverage for third party bodily injury or property damage claims (i) arising out of
services performed by the Conservancy or it’s subcontractors for a combined single limit for
bodily injury and property damage of not less than [$5,000,000.00] each occurrence/annual
aggregate The City shall be shown as additional insured with respect to this coverage.

6.04 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. The Conservancy
shall provide the City 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 than A-; VII by A.M. Best & Company (or
any equivalent rating agency approved by the City Risk Management Division, which approval
shall not be unreasonably withheld, delayed or conditioned) and authorized to do business in the
State.

ARTICLE 7
REPRESENTATIONS, WARRANTIES AND COVENANTS

7.01 City Representations, Warranties and Covenants. The City represents, warrants and
covenants to the Conservancy that the City has full power and authority to enter into this
Agreement, and the execution, delivery, and performance of this Agreement by the City have been
duly authorized by all necessary governmental action. The City Mayor or his designee is the party

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duly authorized to execute and deliver this Agreement on behalf of the City and has so executed
and delivered this Agreement. All necessary governmental action required by the City has been
taken to duly authorize the execution, delivery and performance by the City pursuant to this
Agreement. This Agreement is a valid and binding obligation of the City, enforceable against the
City in accordance with its terms. The City Representative has been duly authorized to act on
behalf of the City as provided in this Agreement.

7.02 Conservancy Representations, Warranties and Covenants. The Conservancy


represents, warrants and covenants to the City that:

(a) The Conservancy is a not-for-profit corporation, incorporated under the


Florida Not For Profit Corporation Act, FS 617, duly formed and validly existing under the laws
of the State of Florida and in good standing.

(b) The Conservancy is designed to comply with all requirements to hold tax
exempt status under s. 501(a) of the Internal Revenue Code, as an organization described in s.
501(c)(3) of the Internal Revenue Code. The Conservancy will timely comply with the
requirements of the Internal Revenue Service for a determination of their tax exempt status.

(c) 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

(d) The execution, delivery and performance by the Conservancy of this


Agreement have been duly authorized by all necessary corporate action of the Conservancy and
will not violate the Conservancy’s Articles of Incorporation or Bylaws or result in the breach of
or constitute a default under any agreement or instrument to which the Conservancy is a party or
by which the Conservancy or its assets may be bound or affected. All consents and approvals of
any Person required in connection with the Conservancy’s execution of this Agreement have been
obtained.

7.03 Covenants.

The Parties, whenever and as often as each shall be reasonably requested to do so by the
other Party shall execute or cause to be executed any further documents and take any further
actions as may be reasonably necessary or expedient in order to consummate the transactions
provided for in, and to carry out the purpose and intent of this Agreement, subject, however, in all
instances to any necessary Board approvals.

In exercising its rights and fulfilling its obligations under this Agreement, each of the
Parties shall act in good faith.

No Party shall terminate this Agreement on the grounds of ultra vires acts or for any
illegality or on the 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.

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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.

During the term of this Agreement, the Parties shall comply with all Applicable Laws
relating to its ownership of the Site, and comply with Applicable Laws with respect to the use,
operation, development, occupancy and/or construction of the Park by the Conservancy. The City
in its capacity as fee owner of the Park 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 and/or Site.

All covenants, representations and warranties contained in this Agreement shall survive
the execution and delivery of this Agreement. No action taken pursuant to or related to this
Agreement, including any investigation by or on behalf of a Party shall be deemed to constitute a
waiver by the Party taking such action of compliance with any representation, warranty, condition
or agreement in this Agreement.

In exercising its rights and fulfilling its obligations under this Agreement, the City and the
Conservancy shall act in good faith. Notwithstanding the foregoing, each Party acknowledges that
in each instance under this Agreement where a Party is obligated to exercise good faith or to use
good faith efforts, such Party shall not be required to expend any funds, or grant any other
consideration of any kind, in the performance of such undertaking, and each Party further
acknowledges that the obligation of any Party to act in good faith, or undertake good faith efforts
does not constitute a warranty, representation or other guaranty that the result which the Parties
are attempting to achieve will be successfully achieved and no Party shall be liable for any failure
to achieve the result or results intended so long as the Party has complied with its obligation to act
in good faith.

By execution of this Agreement, the City hereby authorizes the City Mayor and/or his
designee or the City Manager, as applicable, to execute on behalf of the City any additional
ancillary documents necessary to implement the intent of this Agreement. Notwithstanding the
foregoing, (a) each Party shall have reasonable approval rights over the form and substance of all
documents which it is asked to execute; and (b) no Party shall be required to fundamentally change
any rights, duties or obligations of such Party under this Agreement or any other agreement.

ARTICLE 8
DEFAULT

8.01 Conservancy Default. In the event of the failure of the Conservancy to perform
any of the covenants, conditions 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 after providing sixty (60) days’ notice to the

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Conservancy, sue for and collect damages and to specifically enforce the rights of the City, and to
enjoin the Conservancy.

8.02 City Default. In the event of the failure of the City to perform any of the covenants,
conditions or agreements which are to be performed by it under this Agreement (“City Default”),
and the continuance of such failure for a period of ninety (90) consecutive days after written notice
in adequate detail from the Conservancy (provided, however, if such failure cannot reasonably be
cured within said ninety (90) day period, and the City, within such ninety (90) day period, shall
have commenced and thereafter continued diligently to prosecute the cure of such failure, said
failure shall not constitute a default hereunder), then the Conservancy, to the fullest extent
permitted by law, shall have the right to pursue any and all remedies available at law or in equity,
including the right to terminate this Agreement after providing sixty (60) days’ notice to the City,
sue for and collect damages and to specifically enforce the rights of the Conservancy, and to enjoin
the City.

8.03 Force Majeure. For the purpose of any of the provisions of this Agreement, neither
the City nor the Conservancy, as the case may be, shall be considered in breach of or in default in
any of its obligations under this Agreement in the event of Force Majeure. All Force Majeure
events must persist beyond the reasonable control of the party asserting the delay. In the event of
the occurrence of any such Force Majeure event, the time for the performance of the covenants
and provisions of this Agreement shall be extended for the period of Force Majeure.

8.04 Obligations, Rights and Remedies Cumulative; Cure Periods. The rights and
remedies of the Parties, whether provided at law, in equity or under this Agreement, shall be
cumulative. The exercise by any Party of any one or more of such remedies shall not preclude the
exercise by it, at the same or different times, of any other such remedies for the same default or
for any other default or breach by the other Party. No waiver made by either Party with respect to
performance, manner or time of any obligation of any other Party or any condition to its own
obligation under this Agreement shall be considered a waiver of any rights of said Party with
respect to the particular obligations of any other Party or condition to its own obligation, or a
waiver in any respect in regard to any other rights of said Party. All notice and cure periods
applicable to alleged defaults shall be tolled in the event that a Party challenges the existence of
the alleged default in an Arbitration or other legal proceeding until the date that the arbitrator or
presiding authority renders a decision in the proceeding, at with time, if such Party is found to be
in default, the cure period shall commence.

8.05 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.

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ARTICLE 9
PARTY REPRESENTATIVES

9.01 Designation of City Representative. The Mayor of the City of Miami or his
designee shall be the City Representative. The Mayor of Miami shall have a seat on the Board and
be a voting member. The City Representative shall act as liaison and contact person between the
Conservancy and the City in administering and implementing the terms of this Agreement. The
City Representative shall have the power, authority and right, on behalf of the City, and without
any further resolution or action of the Board, except as otherwise specifically provided in this
Agreement, and so long as such actions or approvals do not cause the expenditure of any City
funds, violate Applicable Law, and/or violate the Ordinance, to do any or all of the following:

(a) review, approve and consent, in writing, to documents, plans, applications,


and requests required or allowed by the Conservancy to be submitted to the City Representative,
the City pursuant to this Agreement;

(b) consent to and approve, in writing, actions, events and undertakings by the
Conservancy or other Persons for which consent and/or approval is required from the City
Representative, the City under this Agreement;

(c) sign any and all documents on behalf of the City necessary or convenient
to the foregoing approvals, consents and appointments and shall sign said document in a timely
manner;

(d) grant written extensions of time that extend deadlines or time periods by up
to 120 days and that do not otherwise materially affect the rights or obligations of the Conservancy
or the City under this Agreement.

Any consent, approval, decision, or determination under this Agreement by the City
Representative shall be binding on the City, to the extent the same does not violate Applicable
Law. The Conservancy and any other Person dealing with the City in connection with this
Agreement or any matter governed by this Agreement may rely upon, and shall be fully protected
in relying upon, the ostensible authority of the City Representative to act for and bind the City in
any such matter, even if the actions of the City Representative ultimately are determined to be
inconsistent with Applicable Law or otherwise unlawful or ultra vires. The City shall cause its City
Representative to comply with all of the provisions of this Agreement.

9.02 Designation 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 to be submitted to the Conservancy pursuant to this
Agreement;

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(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, waiver or amendment under this


Agreement by the Conservancy Representative shall be binding on the Conservancy. The City and
any other Person dealing with the Conservancy in connection with this Agreement or any matter
governed by this Agreement may rely upon, and shall be fully protected in relying upon, the
authority of the Conservancy Representative to act for and bind the Conservancy in any such
matter. The Conservancy shall cause the Conservancy Representative to comply with all of the
provisions of this Agreement.

ARTICLE 10
MISCELLANEOUS PROVISIONS

10.01 Sovereign Rights. The City shall retain all of its sovereign prerogatives and rights
as a municipality under State law with respect to Park. It is expressly understood that:

The City retains all of its sovereign prerogatives and right and regulatory authority (quasi-
judicial or otherwise) as a municipal corporation under State law and shall in no way be estopped
by virtue of its execution of this Agreement from withholding or refusing to issue any approvals
in its municipal regulatory capacity of applications for building, zoning, planning or development
under present or future laws and regulations whatever nature applicable to the planning, design,
construction and development of the Park, or the operation thereof, or be liable for the same; and

The City shall not by virtue of this Agreement or any other agreement entered into by the
City relating to the Conservancy, be obligated in its municipal regulatory capacity to grant the
Conservancy any approvals of applications for building, zoning, planning or development under
present or future laws and ordinances of whatever nature applicable to the planning, design,
construction, development and/or operation of the Park.

Notwithstanding and prevailing over any contrary provision in this Agreement, any
covenant or obligation of the City in its municipal regulatory capacity that may be contained in
this Agreement shall not bind the City Commission or any City department or authority, committee
or agency to grant or leave in effect any zoning changes, variances, permits, waivers, or any other
approvals that may be granted, withheld or revoked in the discretion of the City in its municipal
regulatory capacity or other applicable governmental agencies in the exercise of its police power.

10.02 No Partnership or Joint Venture. Nothing contained in this Agreement is intended


to be 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.

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10.03 Prevailing Laws and Venue. This Agreement shall be governed by the laws of the
State of Florida. If any term, covenant, or condition of this Agreement or the application thereof
to any person or circumstances shall, to any extent, be determined by appropriate judicial authority
to be illegal, invalid, or unenforceable, the remaining terms, covenants and conditions of this
Agreement, or application of such term, covenant or condition to persons or circumstances other
than those as to which it is held invalid or unenforceable, shall not be affected thereby and each
term, covenant, or condition of this Agreement shall be valid and be enforced to the fullest extent
permitted by law. Venue for any action under this Agreement not required to be resolved in
Arbitration shall lie in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade
County, Florida.

10.04 Waiver of Jury Trial. The Parties hereby each knowingly, irrevocably, voluntarily
and intentionally waive any right such Party may have to a trial by jury in respect of any action,
proceeding or counterclaim based on this Agreement, or arising out of, under or in connection with
this Agreement or any amendment or modification of this Agreement, or any other agreement
executed by and between the Parties in connection with this Agreement, or any course of conduct,
course of dealing, statements (whether verbal or written) or actions of any Party hereto. This
waiver of jury trial provision is a material inducement to the Parties to enter into this Agreement.

10.05 Notices. Any notice or communication under this Agreement shall be in writing
and shall be deemed sufficiently given if hand delivered or dispatched by United States certified
mail, postage prepaid, return receipt requested, or by nationally recognized overnight delivery
service, to the appropriate party or entity, and their respective counsel and authorized
representatives as set forth below, at the address specified below or at such other addresses as
either Party may from time to time specify in writing to the other:

In the case of a notice or communication to the City, to:

Mayor, City of Miami


City Hall
3500 Pan American Drive
Miami, Florida 33133

In the case of a notice or communication to the Conservancy, to:

Maurice A. Ferre Park Conservancy, Inc.


c/o Kitty Roedel
4181 Malaga Ave
Miami, Florida 33133

With a copy to:

Akerman LLP
98 SE 7th Street, Suite 1100
Miami, Florida 33131
Attention: Neisen O. Kasdin, Esq.

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Any notice or other communication (i) mailed as hereinabove provided shall be deemed
effectively given or received on the third (3rd) business day following the postmark date of such
notice or other communication, or (ii) sent by overnight courier or by hand shall be deemed
effectively given or received upon receipt or refusal, as the case may be. All notices of approval,
disapproval or default to be given under this Agreement must be in writing and must be given as
provided in this Section. Any notice or other communication given in the manner provided above
by counsel for either party shall be deemed to be notice or such other communication from the
party represented by such counsel.

10.06 Titles of Articles and Section. 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.

10.07 Counterparts. This Agreement is executed in several counterparts, each of which


shall be deemed an original, but all of which shall constitute one and the same instrument.

10.08 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.

10.09 Construction and Interpretation. Reference to any Article, section, paragraph,


exhibit, or subpart thereof, unless otherwise provided, shall refer to this Agreement. Use of the
term “including” shall mean “including, without limitation”. Each of the Parties hereto and their
counsel have reviewed and revised, or requested revisions to this Agreement, and the usual rule of
construction that any ambiguities are to be resolved against the drafting party shall be inapplicable
in the construction and interpretation of this Agreement and any amendments or exhibits to this
Agreement.

10.10 Attorneys’ Fees . If it shall become necessary for any party to employ an
attorney to enforce or defend any of its rights or remedies hereunder because of the default or
breach of any covenant, condition, or agreement hereunder by any other party, each party shall be
responsible for its own attorneys’ fees and court costs, including fees and costs incurred at trial
level and on appeal.

10.11 Entire Agreement. This Development Agreement, including the Exhibits hereto and
all documents described or referenced in this Agreement, together contain the entire agreement
among the Parties with respect to the subject matter hereof, and supersede any and all prior written
or oral agreements among the Parties with respect to such subject matter. No modification or
amendment of this Agreement shall be binding upon the Parties unless such modification or
amendment is in writing and signed by the Party to be bound thereby.

10.12 Assignments. This Management Agreement may not be assigned, either in whole
or in part, by any party, without the express written consent of the other party.

10.13 Severability. If any term or provision of this Agreement or the application thereof
to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of
this Agreement or the application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term

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and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by
law.

10.14 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 Personnel with
respect to liability under or with respect to this Agreement. The limitations of this Section 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.

10.15 Non-Recourse Liability of City Personnel. Notwithstanding and prevailing over


any contrary provision or implication in this Agreement or in any other instrument or document
executed in connection with this Agreement, except for their criminal acts with respect to this
Agreement (i.e., acts which would constitute crimes were they prosecuted for and convicted of
such acts), no member, elected or appointed official, officer, employee, agent, independent
contractor or consultant of the City (“City Personnel”) shall be liable for any of the City’s
obligations under this Agreement or any instrument or document executed in connection with this
Agreement. Except for their criminal acts with respect to this Agreement (i.e., acts which would
constitute crimes were they prosecuted for and convicted of such acts), no City Personnel shall be
liable to the Conservancy, or any successor in interest to the Conservancy, for any amount which
may become due to the Conservancy or any successor in interest to the Conservancy, or for any
other obligation, under the terms of this Agreement. The limitations of this Section shall in no way
limit the Conservancy’s rights as provided in this Agreement (a) to specific performance of each
and every provision of this Agreement or in any other instrument or document executed in
connection with this Agreement, (b)) to recover damages against the City for any breaches of this
Agreement (provided that collection of damages is subject to the restrictions of this provision), or
(c) to enforce remedies against the City.
[SIGNATURES ON FOLLOWING PAGE]

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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”

By: THE CITY OF MIAMI, a municipal


City Clerk: corporation of the State of Florida

By:

Approved as to form and correctness:

By:
City Attorney:

Witnesses:
Maurice A. Ferre Park Conservancy, Inc., a
Print Name: Florida not-for-profit corporation

By:
Print Name: Name:
Title: