Altos del Mar Sculpture Park Agreement~aa y- ~ 7/ 0 0
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MANAGEMENT AGREEMENT BETWEEN
THE CITY OF MIAMI BEACH, FLORIDA
AND
ALTOS DEL MAR SCULPTURE PARK, INC.
FOR THE OPERATION
OF A SCULPTURE PARK IN ALTOS DEL MAR PARK
PURSUANT TO REQUEST FOR PROPOSALS N0.02-07108
THIS AGREEMENT, is made and executed as of this ,3"~ day of 2009, by
and between the CITY OF MIAMI BEACH, a munici al co oration or iz~d existin
P ~ g g
under the laws of the State of Florida (the "City"), and ALTOS DEL MAR SCULPTURE
PARK, INC., a Florida not-for-profit corporation, whose principal office is located at 7701
Collins Avenue, Miami Beach, Florida 33141 (the "ADMSP").
RECITALS:
WHEREAS, the City is the owner of Altos del Mar Park and the street ends (as more
fully described and delineated in the Boundary and Topography Surveys 1 and 2 and the Altos
del Mar Park Location Map sketch attached and incorporated as Exhibit "A" hereto) (the
"Park"); and
WHEREAS, on October 17, 2007, the Mayor and City Commission approved the
issuance of Request for Proposals No. 02-07108 for Establishing a Cultural Arts Themed and/or
Other Passive Recreational Activities Program in Altos Del Mar Park located on Collins Avenue,
between 76th and 77th Streets in the area of Miami Beach known as North Beach (the RFP); and
WHEREAS, on July 16th, 2008, the Mayor and 'the Commission accepted the
recommendation of the City Manager and authorized the City Administration to enter into
negotiations with the successful proposer, ADMSP; and
WHEREAS, ADMSP wishes to establish a cultural arts themed program, as proposed by
ADMSP and to be known as "Altos del Mar Sculpture Park" (the "Sculpture Park"); said
Sculpture Park to be established in that area of the Park generally delineated in the sketch
incorporated as Exhibit "B" hereto (hereinafter, the Sculpture Park may also be referred to as
the "Premises"); and
WHEREAS, ADMSP has obtained the services of ArquitectonicaGeo (the "ARQGEO")
to create the Sculpture Park concept plan and design; and
WHEREAS, both ADMSP and ARQGEO seek to create a unique amenity that meets the
needs of the present without compromising the needs of the future, by utilizing subtle
interventions and ecologically harmonious materials, trees and plants, thereby conserving the
land while using it as a park with sculptures; and
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WHEREAS, the design and construction and, thereafter, operation and maintenance of
the Sculpture Park would be funded and undertaken by ADMSP, at its sole cost and
responsibility; and
WHEREAS, the City is supportive of ADMSP's offer to use its own funding (which
will consist of monies raised from private donations, grant resources, and other funding sources )
toward the design, development, construction, maintenance, and operation of the Sculpture
Park; and
WHEREAS, the City and ADMSP have negotiated the following Management
Agreement for the aforestated purposes.
NOW THEREFORE, in consideration of the premises and the mutual covenants and
conditions herein contained, it is agreed by the parties hereto as follows:
SECTION 1.
The City hereby grants to ADMSP, and ADMSP hereby accepts from the City, this
Agreement for the design and construction and, thereafter, operation, management, coordination,
operation, and maintenance of the Premises (as more fully described and delineated in Exhibit
"B" hereto), in conformance with the purposes and for the period stated herein, and subject to all
the terms and conditions herein contained and fairly implied by the terms hereinafter set forth.
SECTION 2. TERM.
This Agreement shall be for an initial term of ten (10) years, commencing on the day of
2009, and ending on the _ day , 20_. At the expiration of the initial term
herein, and provided that (i) ADMSP is in good standing and free from default hereunder, and
(ii) ADMSP continues to operate, manage and maintain the Premises in accordance with the
terms of this Agreement including, without limitation, in accordance with the approved uses (as
hereinafter defined) the City, may at its sole judgment and discretion, renew this Agreement for
two (2) additional five (5) year renewal terms. ADMSP shall provide the City with written notice
of its intent to renew (or not renew) the Agreement no less than eighteen (18) months prior to the
expiration of the initial term or a renewal term, as the case may be. In the event that the City
determines not to renew the Agreement, it shall notify the ADMSP of same, in writing, no less
than one (1) year prior to the end of the initial term, or a renewal term, as the case may be.
SECTION 3. PREMISES.
In addition to the description of the land and area set forth in Exhibit "B" hereto, the
Premises shall also be deemed to include all facilities, structures, additional landscaping,
fixtures and other improvements within the Sculpture Park, whether existing as of the
commencement date of this Agreement or as may be constructed throughout the Term hereof.
The parties acknowledge and agree that, following completion, the Proposed Improvements (as
defined in Section 9.7 hereof), shall become the sole and exclusive property of the City.
Accordingly, upon completion and acceptance by the City of all or any portion of the Proposed
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Improvements (as hereinafter defined), or any other improvements made to the Premises by
ADMSP during the Term of this Agreement, excluding personalty (which shall be defined as any
of ADMSP's personal property on the Premises which is not permanently affixed or is otherwise
removable without substantial damage to the Premises including, without limitation, furniture,
trade fixtures, and Art Work(s) owned by ADMSP), and upon request by the City Manager or his
designee, ADMSP shall execute a bill of sale (or such other document as may be required by the
City Manager) effectuating and memoralizing such proof of ownership by the City.
ADMSP WARRANTS AND REPRESENTS THAT IT ACCEPTS THE PARK
(INCLUDING, WITHOUT LIMITATION, THE LAND THEREON CONSTITUTING
THE PREMISES) IN ITS "AS IS" CONDITION, WITHOUT ANY
REPRESENTATION(S) OR WARRANTY(IES) OF ANY KIND OR NATURE
WHATSOEVER BY CITY, WHETHER AS TO ITS CONDITION, OR AS TO THE USE
OR OCCUPANCY WHICH MAY BE MADE THEREOF.
SECTION 4. OBJECTIVES/APPROVED USES.
4.1 Objectives.
4.1.1 Altos Del Mar Sculpture Park, with its clearly defined cultural arts theme, shall be
geared toward all age groups, from children to senior citizens (as more fully described and
delineated in Exhibit "C" attached hereto, entitled "Sculpture Park Programming").
4.1.2 ADMSP shall provide the facilities, infrastructure, maintenance and security
necessary to support the approved uses (as hereinafter defined) including, without limitation, the
programming in Exhibit "C," at no cost to the City.
4.1.3 The approved uses (as hereinafter defined) shall complement activities and
programs in nearby City parks and open spaces including, without limitation, North Shore Open
Space Park, Ocean Terrace and Bandshell Park, as described in the City's North Beach
Oceanfront Parks Master Plan (the "Master Plan").
4.1.4 ADMSP hereby warrants and represents that ADMSP has studied the Master Plan
and that the Sculpture Park shall be compatible with the above-mentioned parks and Master Plan.
The Sculpture Park will result in creating a pedestrian link to the public spaces to the north and
south, and provide current and future residents and visitors with a cultural programs destination
in conjunction.
4.1.5 ADMSP shall keep the Sculpture Park open and free to the general public during
the hours of operation prescribed in this Agreement.
4.1.6 The Sculpture Park shall provide safe and convenient access to the public beach
and to the North Beach Recreational Corridor (the "Beachwalk") by creating a pedestrian link to
these areas. The Sculpture Park is naturally divided into three natural sculpture "rooms" where
the sculptures will be exhibited. The visitor can stroll down paths that will change as the
sculptures change from contemporary to figurative to abstract and which lead to the beach and
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Beachwalk from all directions.
4.1.7 ADMSP hereby agrees that the Sculpture Park will showcase the natural
environment and beauty of the Park. The Sculpture Park will provide a quiet and relaxing oasis
in a sculpture setting. An allee, dunes, and a maritime planting pallette shall provide a landscape
design appropriate to the site making the Sculpture Park as unique as is the site of the Park. .
4.1.8 ADMSP agrees that the Sculpture Park will ,and shall be appropriate in design
and programming for the historic district where the Park is located (Harding Townsite /South
Altos Del Mar), and compatible with the adjoining historic districts (Altos Del Mar and the
pending North Shore National Register District).
4.1.9 ADMSP agrees that the Sculpture Park will be compatible with the residential
neighborhoods located to the north and west of the Park. The Park will continue to serve the
community as a park but, in addition, it will also provide current and future residents and visitors
with a cultural programs destination.
4.1.10 The North Shore Branch Library building, located on the southwest corner of the
Park, is owned by the City and leased to the Miami-Dade County Library System. The City is
considering options for moving the library to another location, which may make the library
building available for integration into programming for the Sculpture Park. If the City elects to
re-locate the library to another location, the City may also elect, at its discretion, to permit
ADMSP to utilize the existing library building as a museum for the Sculpture Park, as further set
forth below. In the event that the City elects ADMSP to utilize the existing library building, and
ADMSP accepts, ADMSP shall assist the City with financing a move of the North Shore Branch
Library to the Town Center area. Subject further to the provisions of Section 9.7 (including,
without limitation, Sections 9.7.5 through 9.7.11 thereof), ADMSP shall, also, at its sole cost,
develop plans and be responsible .for any design, permitting, and construction, at ADMSP's sole
cost and expense, to re-purpose the current library building for use of the building as a Sculpture
Park museum.
4.1.11 "Red Sea Road" Sculpture.
ADMSP will contract for all services, including, without limitation, fabrication,
installation and such other ancillary work, as required to accomplish the restoration of the "Red
Sea Road" sculpture (which is owned by the City) up to an amount not to exceed $250,000
(collectively, the fabrication, installation, and other ancillary work required to restore the "Red
Sea Road" shall be referred to as the Restoration Project).
The Restoration Project shall commence on or before October 1, 2010, with the
installation phase of the (restored) "Red Sea Road" to be completed no later than the opening of
the Sculpture Park (on the date contemplated in subsection 9.7.13).
The "Red Sea Road" artist, Barbara Neijna, shall work with ADMSP to the
Restoration Project. Prior to commencement of any work on the Restoration Project, ADMSP
and the City shall use reasonable efforts to negotiate an agreement with Ms. Neijna to supervise
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the Restoration Project, using the artist's original documents for the work, and according to her
aesthetic direction. The agreement with Ms. Neijna shall also provide that the artist shall provide
her consulting services for the Restoration Project free of charge. In the event that ADMSP and
the City are unable to successfully negotiate an agreement with Ms. Neijna for her consulting
services on the Restoration Project, then ADMSP shall have no further obligation with regard to
said Project pursuant to this subsection 4.1.11.
The total cost for the Restoration Project (including the aforestated out-of-pocket
expenses) shall not exceed $250,000. Prior to commencing the work, ADMSP shall deposit the
sum of $250,000 in its lawyer's trust account (located in a bank in Miami-Dade County, Florida).
This account shall be used to pay for all costs/work associated with the Restoration Project.
Upon completion of the Restoration Project, the "Red Sea Road" will be installed
and exhibited at the Sculpture Park throughout the initial Term of this Agreement.
Barbara Neijna will also develop a maintenance program for the "Red Sea Road,"
at no cost to either ADMSP or the City. Following installation of "Red Sea Road" in the
Sculpture Park, ADMSP shall be responsible for maintenance of the sculpture throughout the
Term of the Agreement (notwithstanding that the sculpture is, and shall at all times continue to
be, owned by the City).
Neither Barbara Neijna nor the City will incur any liability, risk, and/or financial
obligation with respect to the Restoration Project, and the ongoing maintenance of the "Red Sea
Road."
4.2 Apuroved Uses.
4.2.1 The Sculpture Park shall be designed, developed, constructed and, thereafter,
managed, operated, and maintained as a public recreational amenity.
4.2.2 The Sculpture Park is intended to include the following programs, services,
activities, and uses:
a. Changing exhibitions of the large and heavy sculptures at least every three (3) years
throughout the Term;
b. Changing exhibitions of the small to midsize sculptures at least every eighteen (18)
months throughout the Term.
c. Guided park tours by an art historian;
d. Art classes;
e. Classical, jazz or other music events that are cultural in nature (excludes loud genres
of music such as heavy metal);
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f. Book author readings;
g. Kite flying;
h. Outdoor Cinema;
i. Exercise classes such as yoga, aerobics, pilates, ballet, qi gong, Tai Chi and/or
meditation classes; and
j. Yoga classes.
k. Following the opening of the Sculpture Park on the date contemplated in Section
9.7.13, the Sculpture Park will also be available for rental for limited private events
such as wedding ceremonies and receptions, baptisms, bar/bat mitzvahs, birthdays,
graduations, and other similar social events. ADMSP shall follow and adhere to the
rental rates and policies and procedures which shall be mutually developed by
ADMSP and the City and subject to final approval by the Mayor and City
Commission; which approval must be obtained no later than six (6) months prior to
final completion of the Proposed Improvements (as contemplated in Section 9.7.10).
The approved rental rates and policies and procedures approved by the City shall be
attached hereto as Exhibit "D" hereto. The City reserves the right to amend said
rental rates and other policies and procedures in its sole discretion. Renters of the
Sculpture Park (excepting the City) shall be required to provide certificates of
insurance evidencing appropriate insurance, as determined by the City's Risk Manager
(and referenced within the attached Exhibit "E"). Copies of these certificates shall be
furnished to the City Manager or his designee; coverage shall be kept in full force at
all times throughout the period of intended use. All such liability policies shall name
the City of Miami Beach, Florida as additional insured.
Notwithstanding the approved policies and procedures (to be attached as Exhibit "D"
hereto), or any other term or condition of this Agreement, any use of the Premises
and/or Sculpture Park (or any portion thereof) for an event(s) identified in this
subsection 4.2.2(k) shall also be subject to the following scheduling requirements:
(i) In booking such events, ADMSP shall use best efforts to schedule the
event outside of the regular hours of operation of the Sculpture Park (as
defined in Section 5.3) hereof, so as not to interfere with the use of the
Sculpture Park as a public cultural facility.
(ii) For proposed events which are scheduled to be held during (or during any
portion of) the Sculpture Park's regular hours of operation (as defined in
Section 5.3 hereof), ADMSP shall be limited to scheduling a maximum of
twelve (12) such events per contract year during the Term hereof.
Approval of any events which exceed the annual permitted maximum
number shall be subject to the prior written approval of the City Manager,
which approval, if given at all, shall be at the Manager's sole judgment
and discretion. A written request must be submitted by ADMSP no later
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than forty-five (45) days prior to the requested date of the event but, in all
cases, prior to the execution of any third party agreement between
ADMSP and the proposed renter. The notice shall also contain the name
of the event; the type of event and a brief description; the scheduled date
and time; and the area of the Sculpture Park to be utilized (and whether the
event shall require the use of all or only a portion of the Sculpture Park).
The notice shall certify that ADMSP has utilized any and all best efforts to
schedule the event outside of the Sculpture Park's regular operating hours,
and shall further set forth the reason(s) and necessity for having the event
during the Sculpture Park's hours of operation.
Hereinafter, the City approved programs, activities, services, and uses by ADMSP of
the Premises, as set forth in subsections (a) - (k) above, shall be collectively referred
to as the "uses" and/or the "approved uses".
Subject to ADMSP's obtaining a special events permit from the City and compliance
with the City's Special Events Requirements and Guidelines (as same may be
amended from time to time), ADMSP may also be allowed to utilize the Sculpture
Park for its black tie fundraising events, to take place up to a maximum of five (5)
times per year (as designated by ADMSP). The City acknowledges that ADMSP may
hold fundraising events at the Sculpture Park (subject to the requirements in this
subsection 4.2.2(k)) prior to the date of opening of Sculpture Park (on the date
contemplated in Section 9.7.13).
m.In the event that ADMSP is permitted to use the existing North Shore Branch Library
building, as provided in Section 4.1.10 hereof, ADMSP shall operate the existing
building as the Sculpture Park's museum building which would include, without
limitation, indoor exhibition room, a museum cafe, gift shop/bookstore, classrooms,
administrative offices, bathrooms, storage room, janitor room, and other such uses
customary in public museum buildings of comparable type and size.
4.2.3 Sculpture Park Art Work and Exhibitions.
4.2.3.1 The Sculpture Park will display, in changing exhibitions, major works of
sculpture from internationally established sculptors of the 19tt', 20t~' and 21St centuries (the Art
Work). A series of programmed exhibitions, ranging from historical to contemporary art, will be
show cased and changed periodically, and at a minimum, as follows:
a. Changing exhibitions of the large and heavy sculptures at least every three (3)
years throughout the Term; and
b. Changing exhibitions of the small to mid-size sculptures at least every eighteen
(18) months throughout the Term.
Themes of planned exhibits, as included in ADMSP's response to the RFP, are attached
and incorporated as Exhibit "F" hereto.
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4.2.3.2 The Art Work shall be exhibited in three (3) distinct landscaped areas (referred to
in ADMSP's response to the RFP as, respectively, 1) the "Dunefields;" 2) the "Maritime
Garden;" and 3) the "Tree Allees"). As referenced in ADMSP's response to the RFP, those areas
are intended to be used as "three natural sculpture `rooms' and "three distinct `outdoor galleries'
in which the user can navigate through the exhibit along a path that will change as the sculptures
change from contemporary to figurative to abstract."
A detailed description of the proposed landscaping areas (as set forth in ADMSP's
response (to the RFP) is attached and incorporated as Exhibit "G" hereto.
4.2.3.3 The Art Work shall be displayed and exhibited for public cultural purposes only
and shall not, under any event or circumstances, be displayed, exhibited, or otherwise utilized or
associated in connection with any commercial purpose whatsoever.
THERE SHALL BE NO SALE OF THE ART WORK ON THE PREMISES, NOR
SHALL ANY RELATED MATERIALS AND/OR DOCUMENTS ISSUED BY ADMSP
AND/OR ANY THIRD PARTIES WITH REGARD OR IN RELATION TO THE
SCULPTURE PARK OR THE PREMISES REFERENCE THAT ANY ART WORK
EXHIBITED OR OTHERWISE DISPLAYED ON THE PREMISES IS INTENDED OR
OFFERED FOR SALE OR RE-SALE, OR FOR ANY COMMERCIAL USE, ACTIVITY,
OR PURPOSE. ADMSP HEREBY WARRANTS, REPRESENTS AND COVENANTS
THAT THE SOLE AND PRIMARY USE OF THE SCULPTURE PARK SHALL BE AS
A PUBLIC CULTURAL FACILITY OF THE CITY OF MIAMI BEACH (AND NOT AS
A PRIVATE OR QUASI-PRIVATE COMMERCIAL ART GALLERY WHERE
EXHIBITED ART WORKS ARE INTENDED TO BE EXHIBITED FOR SALE OR RE-
SALE). ANY VIOLATION OF THIS SECTION BY ADMSP SHALL RESULT IN
IMMEDIATE TERMINATION OF THIS AGREEMENT.
4.2.3.4 Procedure for Selection of Art Work/Exhibitions.
The Artwork and exhibitions will be selected, planned and executed by committees (or
sub-boards), which shall be comprised of members of the ADMSP Board of Directors (the
ADMSP Board or the Board); nationally and internationally recognized experts who provide
guidance in decision-making to the ADMSP Board; and representatives from the City of Miami
Beach, who shall be designated by the City Commission and who may be comprised of: i) a
member of the City Commission, ii) the City Manager or his designee, iii) and/or other
individuals (as selected by majority vote of the City Commission) having experience and
expertise in the visual arts. The City's representation on the aforestated committees/sub-boards
shall be a number proportionate to the total number of members of each committee, but in no
event less than thirty percent (30%). The City's members shall all be voting members of the
ADMSP Board and each respective committee/sub-board.
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The approved committees/sub-boards are as follows:
a. Design Review Committee
Makes all Sculpture Park and exhibition decisions;
b. Collection Review Committee
Researches and reviews collections of private collectors and museums, which
are entrusted in making sculptures available to ADMSP and makes the decision
which sculpture(s) to accept; and
c. Exhibition Planning Committee
Decides which exhibitions will be planned and executed.
4.2.3.5 In addition to the above, ADMSP shall at all times during the Term employ
and/or otherwise retain a curator for the Sculpture Park, who shall be responsible for the overall
artistic direction of the Sculpture Park (the Curator), in relation to collecting, exhibiting,
education, programming, registration and installation within the framework of the Sculpture Park
objectives and approved uses. The Curator's responsibilities shall include, without limitation:
a) Preparing the exhibition schedules and presenting them to the ADMSP Board,
with copies to the City Manager;
b) Organizing and supervising all of the Sculpture Park exhibitions, including
donation contracts, and general administration;
c) Recommending to the Board acquisitions to the collections within the acquisition
policies of the Sculpture Park;
d) Managing and. developing the collections by;
i) Recommending and implementing ADMSP Board approved policies and
procedures for documentation, conservation, acquisition, management or
publication of the park collection;
ii) Negotiating acquisitions with potential donors and advising on suitable
gifts in conjunction and/or under the guidance of ADMSP's
president/CEO and general counsel;
iii) Recommending conservation priorities within established conservation
guidelines;
iv) Assessing artistic, art historical and community cultural needs or demands
with reference to establishing programming policy; and
v) Keeping current with local, regional, provincial, national and international
artistic communities.
Prior to ADMSP's appointment of the Curator, ADMSP shall consult with the City
Manager with respect to the qualifications of the proposed individual.
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4.2.3.6 ADMSP shall be solely responsible (including, without limitation, any and all
costs associated therewith) for insuring and securing the Art Work, in accordance with the
respective requirements for same, as set forth in Sections 20 (Insurance requirements) and 9.6.2
(Security) of the Agreement.
4.2.3.7 ADMSP shall be solely responsible for procuring, negotiating, executing,
administering, and assuring compliance with any and all contracts including, without limitation,
any contracts or agreements related to i) the use of the Sculpture Park for exhibitions; ii) the
display and exhibition of Art Work in the Sculpture Park, whether for a specific exhibition or
otherwise; and/or iii) third party rental and/or use of all or any portion of the Premises (excluding
any City use(s) thereof). Prior to commencement of operations at the Sculpture Park, ADMSP
shall submit its proposed standard form contracts for, respectively, i) exhibitions; ii) display and
exhibition of Art Work; and iii) third party rental/use of the Premises, to the City Manager, for
his review, comment, and approval of the boiler plate provisions. Once approved, ADMSP shall
use such forms in furtherance of its objectives and approved uses hereunder, and shall not
materially deviate from the terms contained in such forms (as they relate to the boiler plate
provisions) without obtaining the prior written approval of the City Manager, which approval
shall not be unreasonably withheld.
ADMSP shall also require all users of the Premises to execute (among the terms of the
aforestated form contract) an agreement to indemnify, defend and hold harmless the City.
ADMSP shall not license or allow the use of any portion of the Premises to other than
short-term users. ADMSP shall require that all users of the Premises provide certificates of
insurance evidencing appropriate insurance and any other insurance required by the applicable
form agreement. Copies of these certificates shall be furnished to the City Manager or his
designee prior to any exhibition or other use. Such insurance shall be kept in force at all times
by all licensees, users, lessees, concessionaires or other such third parties. All liability policies
shall name the City of Miami Beach, Florida and ADMSP as additional insureds.
4.2.3.8 The City Manager shall have the right to prohibit certain events or uses, including
exhibitions, from occurring on the Premises, upon City Manager's reasonable determination that
such event, use, or exhibition might present unreasonable safety concerns, or be a threat to the
health, safety and morals of the public. Notice of any such determination shall be sent by written
notice to ADMSP within fourteen (14) days after City Manager has received the booking report
from ADMSP (as required under Section 4.2.4) that specifies the potential event, use, or
exhibition and, if such determination is not delivered within such fourteen (14) day period, then
the event, use, or exhibition may be held. Similarly, the City Manager shall have the right to
remove or relocate the exhibition of a particular Art Work (whether in conjunction with an
exhibition or otherwise) from public display if, upon the City Manager's reasonable
determination that such Art Work might present unreasonable safety concerns or be a threat to
the health, safety and morals of the public.
4.2.4 With regard to any use of the Premises, whether currently contemplated in this
Section 4 (or as may subsequently proposed), in the event that ADMSP seeks to use the
Premises for additional programs, services, activities, and uses which are materially different
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than the approved uses (as enumerated in Section 4.2.2), then each such proposed new program,
service, activity and use must be (i) consistent with the approved uses (as defined herein), and
(ii) subject to the prior written approval of the City Manager. ADMSP shall request such
approvals in writing thirty (30) days prior to the proposed first date of such program, service,
activity and use. The City Manager shall have fourteen (14) days from the date of receipt of the
written request to reply in writing to ADMSP. Any and all approvals shall not be unreasonably
withheld or delayed. In the event of approval by the City Manager, all such new programs,
services, activities, and uses shall be memorialized by the writing approving such programs,
services, activities, and uses; sent to ADMSP; and incorporated with the other approved uses in
this Agreement (as evidenced by the City writing approving same).
4.2.5 ADMSP shall provide the City Manager or his designee with a monthly written
report of all events, scheduled in the Sculpture Park for the up-coming month and, with each
such report, shall also report on the events which actually occurred during the previous months,
and the number of persons participating in those events.
4.2.6 The Premises shall be used by ADMSP solely and exclusively for the uses set
forth in this Section 4.2 (or such other uses as may be approved by the City). It is understood
and agreed that the Premises shall be used by ADMSP during the Term of this Agreement only
for the purposes and/or uses described in (and/or otherwise approved pursuant to) this Section
4.2, and for no other purposes or uses whatsoever. In the event that ADMSP uses the Premises
for any purpose(s) and/or use(s) not expressly permitted in this Section 4.2, such use(s) shall be
considered a default under this Agreement, and the City shall be entitled to all remedies,
including termination of this Agreement, as set forth in Section 27 hereof. In addition,
notwithstanding any other term of this Agreement, the City shall be entitled to seek immediate
relief, whether at law or equity, to restrain such improper use(s).
4.2.7 Following the conclusion of an exhibition, ADMSP shall be allowed to retain on
the Premises, Artwork or Artwork(s) displayed at the Sculpture Park in conjunction with that
exhibition, for a period not to exceed ninety (90) days from the conclusion of the exhibition;
provided that 1) ADMSP obtains the written consent of the owner(s) of the Artwork(s); and 2)
the retention of the Artwork or Artworks on the Premises does not materially interfere with
ADMSP's presentation and/or the mounting of the immediately following exhibition, or
subsequent exhibitions. ADMSP shall continue to be solely responsible for any and all
Artwork(s) retained on the Premises pursuant to this subsection.
4.2.8 Donation of Art Works to ADMSP.
The parties acknowledge that from time to time during the Term of this Agreement,
donations of Art Work(s) may be made by third parties to ADMSP. The City hereby approves
ADMSP accepting any such donations subject to ADMSP's compliance with the following
conditions:
a) ADMSP shall promptly notify the City Manager in writing of any
proposed donation(s) it intends to accept, which notice shall be submitted
prior to any formal acceptance of the Art Work(s) by ADMSP and which,
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at a minimum, shall include a detailed description of the Art Work(s) to be
donated (including photographs); the materials and size and dimensions of
the Art Work(s); conditions (if any) imposed by the donor in connection
with the proposed donation; the estimated value of the Art Work(s)
(including a recent appraisal); the date on which ADMSP intends to take
formal action on the acceptance of the donation; and whether the donation
(if accepted) is intended for display and/or exhibition in the Sculpture
Park;
b) ADMSP shall be solely responsible for and shall assume any and all
liability, costs, and expenses in connection with any donated Art Work(s)
and shall comply with the same insurance and security requirements as
pertain to Art Works generally; and
c) ADMSP shall not be precluded from selling any donated Art Works;
provided that any proceeds derived from the sale shall be dedicated
exclusively to help fund ADMSP's management, operation and
maintenance of the Sculpture Park (including the allocation of such
proceeds into an investment portfolio related to an endowment for
management, operation, and maintenance of the Sculpture Park.)The sale
and the sale price shall be reported to the City during its annual budget
review process pursuant to Section 7 hereof).
4.2.9 ADMSP shall make all records, documents and materials related to its exhibitions
and display of Artwork(s) including, without limitation, any agreements with third parties and/or
other documents related to the loan and/or donation of Artworks for exhibition and/or display at
the Park (and as would customarily be maintained and/or retained by ADMSP in the normal
course of its operations herein), available for inspection and/or copying by the City, upon
reasonable notice by the City Manager and/or his designee.
SECTION 5. OPERATION AND MANAGEMENT OF THE PREMISES.
5.1 Subject to the approved uses in Section 4.2 (as same may be approved/amended
from time to time), and any and all other terms, limitations and required approvals contained in
this Agreement, ADMSP is authorized and required, and shall have the right to:
a. Manage and operate the Premises, and ADMSP's activities, services, and
programs thereon, for the purpose of coordinating, implementing, and
supervising all approved uses;
b. Maintain and provide for the day-to-day maintenance and housekeeping of
the Premises;
c. Supervise and direct all ADMSP and/or Sculpture Park employees,
officers, agents, contractors, volunteers, invitees, visitors, and guests on
the Premises;
d. Maintain detailed, accurate and complete financial and other records of all
of its activities under this Agreement in accordance with generally
accepted accounting principles. All financial records maintained pursuant
to this Agreement shall be retained by ADMSP as long as such records are
12
required to be retained pursuant to Florida Public Records Law, and shall
be made available upon reasonable notice by the City;
e. Develop and implement programs and activities which support and
promote the goals and priorities and approved uses (as set forth in Section
4, and as same may be approved/amended from time to time); and
f. Coordinate and cooperate with the City for use of the Premises by the
City, as set forth in Section 10.1 hereof, which coordination and
cooperation shall not be unreasonably withheld or delayed.
5.2. The parties agree and acknowledge that, in furtherance of, and consistent with, the
objectives and approved uses, ADMSP and the City may agree to mutually coordinate, sponsor
and provide certain additional recreation and leisure activities and/or programs on the Premises.
The City and ADMSP shall mutually agree upon and approve any such activities and/or
programs in advance of their implementation; the programs and/or activities must be consistent
with the operation of the Park and the Sculpture Park; and may not materially interfere with the
operations of the Park and the Sculpture Park. Subject to the preceding criteria, ADMSP and the
City further agree that each party will be responsible for its respective costs associated with the
provision of said activities and/or programs.
5.3 Hours of Operation. The City and ADMSP agree that normal hours of operation
for the Sculpture Park for the general public shall be from 10:00 AM to Sunset, 365 days a year.
The parties recognize and acknowledge that, under certain circumstances (i.e. certain events
under subsection 4.2.2(k), ADMSP's black-tie fundraiser, a City use, or approved special event),
ADMSP may be permitted to extend its hours of operation, but any prolonged extension shall be
subject to the prior written consent of the City Manager (which consent shall not be
unreasonably withheld or delayed). In no event shall the Sculpture Park's normal hours of
operation be shortened without the prior written consent of the City Manager.
SECTION 6. REVENUE FROM SCULPTURE PARK RELATED
ACTIVITIES/FINANCIAL RECORDS AND REPORTS.
6.1 Revenue from Sculpture Park Related Businesses/Activities. The City
acknowledges that ADMSP may derive revenues from activities it conducts on the Premises,
including, without limitation, rental of the Premises as contemplated in Section 4.2.2(k), gift
shop bookstore sales, classes, tours, and sale of food and beverages. ADMSP acknowledges
that any and all such revenue generating activities conducted on the Premises shall be directly
related to and consistent with the customary operation and management of a public Sculpture
Park; consistent with the objectives and approved uses in Section 4; and consistent with the
overall public recreational purposes and character of the Park. Any revenue generating activities
conducted (or contemplated to be conducted) on the Premises shall first be approved, in writing,
by the City Manager or his designee, prior to commencement of same; which approval, if given
at all, shall be at the City Manager's sole discretion. Said approval shall initially be obtained
concurrent with the execution of this Agreement by the parties, by submittal of proposed
uses business(es) to be conducted by ADMSP on the Premises, which submission shall be
attached and incorporated hereto as Exhibit "H" to the Agreement. Thereafter (and subject to
approval by the City Manager), said exhibit shall be updated by ADMSP, to include any new
13
proposed use(s)/business(es) on the Premises. Additionally, the City Manager's approval of any
revenue generating activities shall not excuse ADMSP from compliance with the City's Special
Events Requirements and Guidelines (as same may be amended from time to time), and/or any
and all other applicable requirements pertaining to event programming and other event
scheduling requirements.
6.1.2 Cessation/Suspension of Approved Use(s) and/or Business Activity(ies).
Notwithstanding anything contained or this Agreement, in the event that a particular use and/or
revenue generating activity has been approved by the City Manager, and the City Manager
thereafter, upon reasonable inquiry, determines that the continuation of such use and/or activity
is, or may be, inconsistent, contrary to and/or detrimental to the objectives and approved uses set
forth in Section 4; and/or to the health, safety and/or welfare of the City's residents and visitors;
and/or to the overall recreational purposes and character of the Park, then the City Manager
and/or his designee, upon thirty (30) days prior written notice to ADMSP, may revoke, suspend,
and/or otherwise disallow the objectionable uses and/or revenue generating activity, and
ADMSP shall immediately cease and desist in providing, and/or continuing with, said use and/or
activity within the time period and in the manner prescribed in the City's notice. In the
alternative, the City Manager may allow ADMSP to continue with the subject use, or business
activity(ies), subject to such additional guidelines, as may be determined and established by the
City Manager, in his sole and reasonable discretion and judgment.
6.2 Financial Records and Reports. ADMSP shall maintain on the Premises, or at
the location set forth in the Notices section of this Agreement, or at such other location within
Miami-Dade County, Florida, true, accurate, and complete records and accounts of all receipts
and expenses for any and all uses, services, programs, events, and activities (including, without
limitation, all revenue generating activities) conducted on the Premises, and shall give the City
Manager or his authorized representative access during reasonable business hours to examine
and audit such records and accounts.
Throughout the Term of this Agreement, and no later than one hundred and twenty (120) days
following the closing of the City's fiscal year (October 1St -September 30th), ADMSP shall
provide the City Manager with an annual report of all uses, services, programs, events and
activities (including, without limitation, all revenue generating activities) conducted on the
Premises for the prior year, along with audited financial statements. Said statements shall be
certified as true, accurate and complete by ADMSP and by its certified public accountant.
6.3 All revenues received by ADMSP in connection with any approved uses and/or
revenue generating activities shall be dedicated exclusively to help fund ADMSP's management,
operation, and maintenance of the Premises. In the event that revenue(s) pertaining to the
Sculpture Park exceed expenses during a particular budget year, the City and ADMSP agree that
such excess, if any, shall first be applied to offset any of the landscaping
maintenance/replacement, capital improvements, and/or infrastructure maintenance costs (as set
forth in Section 9.1), and may, thereafter, be applied by ADMSP to support other programming
in the Sculpture Park. For purposes hereon, "revenues" shall be deemed to include public/private
grant funding, and unrestricted donations and contributions received by ADMSP specifically ear-
marked toward the operation, management and programming of the Sculpture Park. No portion
of the net earnings resulting from the activities of ADMSP on the Premises shall inure to the
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benefit of any private individual.
SECTION 7. BUDGET AND FUNDING FOR THE SCULPTURE PARK.
7.1 Throughout the Term of this Agreement, ADMSP shall prepare and present, by
May 15t" of each year, a proposed, detailed line item annual operating budget for the Sculpture
Park for each City fiscal year (October 1St -September 30th) during the Term hereof, for review
and approval by the City Manager. Said budget shall include a projected income and expense
statement; projected year end balance sheet; statement of projected income sources; and
application of funds. Additionally, the budget shall also include, without limitation, the
following detailed projections:
a. Gross revenues by categories from all revenue sources and revenue
generating activities derived on the Premises;
b. Operating expenses for the Sculpture Park;
c. Administrative, labor and general expenses;
d. Marketing, advertising and promotion expenses;
e. Utility costs;
f. Regular repairs and maintenance costs, and costs related to landscaping
maintenance and replacement, capital improvements, and infrastructure;
and
g. In addition to subsection (f) hereof, ADMSP shall identify for the City,
such long term capital maintenance, repair, and replacement of the
landscaping and the Proposed Improvements (as defined herein). In
conjunction with this subsection (g), ADMSP agrees to allow the City
and/or its authorized representative(s) access to the Premises (as provided
in Section 18 hereof) for the purpose of the City conducting its own
facility assessment.
h. Commencing with the second contract year of the Agreement, and
thereafter throughout the Term, ADMSP shall also include a copy of the
approved annual operating budget for the prior contract year, detailing
actual costs, expenditures and revenues for said budget year.
7.2 Programmatic Plan. Accompanying ADMSP's proposed annual budget shall be
the Sculpture Park's programmatic plan for the upcoming City fiscal year, detailing the then-
known (planned) uses, services, activities, events, programs, and operations, and the estimated
number of users anticipated.
SECTION 8. [INTENTIONALLY DELETED]
SECTION 9. MAINTENANCE, REPAIRS, AND ALTERATIONS.
9.1 Generally. Throughout the Term of the Agreement, ADMSP shall be solely
responsible (including any costs associated therewith) for maintaining the Premises, and every
part thereof, in good condition, and will not suffer or permit any strip or waste of the Premises.
15
ADMSP shall assume sole responsibility and expense for day to day housekeeping,
janitorial services, and routine maintenance of the Premises (and all improvements, fixtures, and
equipment thereon). This shall include, without limitation, daily removal of litter, garbage and
debris generated by ADMSP's use of the Premises, including all garbage disposal generated by
its operations and activities.
9.2 Landscaping Maintenance. ADMSP shall, at its sole cost and
responsibility maintain the grounds and horticulture of the Sculpture Park. ADMSP agrees to be
bound by the minimum maintenance standards as set forth in Exhibit "I" to this Agreement,
entitled "City of Miami Beach Minimum Specifications for Maintenance of the Altos del Mar
Sculpture Park". Along with its proposed annual budget and programmatic plan (as required in
Section 7 hereof), ADMSP shall also provide the City Manager with an annual monthly
maintenance report (in such form as shall be approved by the City Manager and/or his designee).
Notwithstanding ADMSP's responsibility with regard to maintenance of the Premises (including,
without limitation, the grounds and horticulture of the Sculpture Park), the City Manager retains
the right to review and approve plans for all major horticultural material installations, removals,
etc. ADMSP shall comply with any and all Federal, State, Miami-Dade County, and City laws,
codes, rules and regulations, etc. with regard to maintenance and replacement of landscaping
and/or horticultural including, without limitation, tree removal permits, use and storage of
pesticides, chemicals, etc.
9.3 Art Work Maintenance and Security.
9.3.1 Art Work Maintenance.Notwithstanding ADMSP's general maintenance
obligations as to the Premises and the Landscaping, as set forth above, ADMSP will also
maintain all Art Work(s) in accordance with established maintenance procedures, as outlined by
the conservation guidelines of established museums and adapted to suit the conservation needs
and requirements of each Art Work. ADMSP shall be responsible for using reasonable efforts to
remove any graffiti from the Artwork, and keeping the Artwork free of vandalism.
9.3.2 (INTENTIONALLY DELETEDI
9.4 Labor/PersonneUMaterials/Eguipment/Furnishings.
ADMSP shall supply, at its sole cost and responsibility, all labor, personnel, materials,
equipment, and furnishings, as reasonably required, to operate and maintain the Premises in
accordance with the objectives and approved uses set forth herein. In the event any materials,
equipment, and/or furnishings are lost, stolen, or damaged, they shall be promptly replaced or
repaired at the sole cost and expense of the ADMSP.
9.5 (INTENTIONALLY OMITTEDI
9.6 Securi
9.6.1 Generally. ADMSP shall be responsible for and provide reasonable security
measures as may be required to protect and secure the Premises and any facilities, materials,
16
fixtures, furnishings, and equipment (FFE), thereon. Under no circumstances shall the City be
responsible for any stolen or damaged materials or FFE, nor shall the City be responsible for any
stolen or damaged personal property of ADMSP and/or the Sculpture Park's officials,
employees, contractors, volunteers, patrons, guests, invitees, and/or any other third parties.
9.6.2 Security for Art Works.
ADMSP will maintain a 24/365 guarded security on the Premises and Art Works
provided by a local South Florida security company, which observes the newest security
management methods derived from the work of the International Security Management
Association (`ISMA').
9.7 ADMSP's Proposed Improvements, Funding, and Responsibilities.
This Agreement is made with the understanding and agreement that ADMSP will, at its
sole cost and responsibility, design, develop, and construct the Proposed Improvements (as
hereinafter defined). The intended scope of the Proposed Improvements to be designed and
constructed by ADMSP for the Sculpture Park will include the following primary components:
a. At least eleven (11) foundations for the large sculptures. The size of each
foundation will be 5 meters by 5 meters by 1 /2 to maximum 1 meter. The
foundations will be constructed in concrete and steel;
b. At least twenty-five (25) foundations for the medium to small size sculptures. The
size of each foundation will be 1 meter by 1 meter by 0.30 meter;
c. A one level entrance pavilion with 1,200 square feet;
d. Facilities such as toilets, water fountains and benches all of which are to be
incorporated in the Sculpture Park design;
e. The Sculpture Park landscape design, as proposed by ADMSP in its response to
the RFP, which portion is attached and incorporated as Exhibit "G" hereto; and
The aforestated improvements are hereinafter referred to as the "Proposed
Improvements".
ADMSP hereby covenants and agrees that ADMSP shall invest or cause to be invested
not less than $1.36 million dollars in hard construction costs for the Proposed Improvements.
Upon substantial completion of the Proposed Improvements, ADMSP shall certify to City that it
has, in fact, expended not less than said amount for hard construction costs.
Notwithstanding the Proposed Improvements described in (a) through (e) above, in the
event that ADMSP secures the existing North Shore Branch Library building, pursuant to
Section 4.1.10 hereunder, ADMSP would utilize the existing facility to design, develop and
construct the Sculpture Park's Museum building which would include, but not be limited to,
indoor exhibition room, a museum cafe, gift shop/bookstore, classrooms, administrative offices,
bathrooms, storage room, janitor room and other such uses customary of museum buildings (the
Museum building). The design and construction of the Museum building shall be undertaken at
ADMSP's sole cost and obligation and is further subject to the same process set forth for the
17
Proposed Improvements in Sections 9.7.5 through 9.7.11; provided that the specific milestones
and timelines for the Museum building shall be established and mutually agreed to by the parties;
and further provided, that ADMSP shall not have the right to terminate the Agreement under
Section 9.7.9 hereof for failure to obtain a final Full Building Permit for the Museum building.
9.7.1 The Sculpture Park will commence operations upon the completion of the
Proposed Improvements, as hereinafter set forth.
9.7.2 INTENTIONALLY OMITTED.
9.7.3 The Proposed Improvements will be approved by the City Commission as
hereinafter set forth in Section 9.7.5.
9.7.4 ADMSP shall be solely responsible for obtaining all final, non-appealable
approvals from the City (including approvals by the City acting in both its proprietary and
regulatory capacity, and any and all other applicable regulatory agencies. Construction of the
Proposed Improvements shall be carried out pursuant to the Plans and Specifications (as
hereinafter defined), which shall be prepared by licensed architects and engineers.
9.7.5 Concept Plan Design. The Concept Plan Design review process shall commence
with ADMSP's submission to the City's Planning Board, for its review and recommendation of a
Concept Plan Design detailing the Sculpture Park, and including, without limitation, the
Proposed Improvements, in sufficient detail, layout, and siting.
The current Preliminary Sculpture Park Site Plan and Design, attached as Exhibit "" hereto,
shall serve as the basis of the Concept Plan Design.
Following review of the Concept Plan Design by the Planning Board, the Concept Plan
Design shall be submitted for review and approval by the City Commission at a regularly
scheduled meeting. Final approval of the Concept Plan Design will rest with the City
Commission.
In the event that the City Commission fails to approve the Concept Plan Design by
October 1, 2009, then this Agreement shall automatically terminate and be of no further force or
effect, unless the City Commission deems to grant an extension, at its sole discretion. In the
event of automatic termination of this Agreement pursuant to this subsection, each party shall
bear its own costs and expenses incurred in connection with this Agreement, and neither party
shall have any further liability to the other.
9.7.6 Preliminary Plans and Specifications.
Upon the City Commission's approval of the Concept Plan Design, ADMSP shall submit
to the City Manager (acting on behalf of the City, in its proprietary capacity) preliminary plans
and specifications for the Proposed Improvements, which shall be in accordance with the
approved Concept Plan Design (the "Preliminary Plans and Specifications").
ADMSP shall submit the Preliminary Plans and Specifications to the City Manager
within 180 days of the approval of the Concept Plan Design by the City Commission. The City
18
Manager shall have forty five (45) Business days to review the Preliminary Plans and
Specifications. If the City Manager does not approve the Preliminary Plans and Specifications,
then ADMSP and the City shall confer in good faith to develop and submit revised Preliminary
Plans and Specifications, which shall be submitted and reviewed as provided above. Failure of
ADMSP to obtain the City Manager's final approval of the Preliminary Plans and Specifications
within 120 days from the date of the City Manager's disapproval shall constitute a termination of
this Agreement without any further liability of either party to the other. Hereinafter, the date of
final approval of the Preliminary Plans and Specifications by the City Manager shall be referred
to as the "Commencement Date".
ADMSP shall, within sixty (60) days of the City Manager's final approval of the
Preliminary Plans and Specifications, submit an application for approval of the design of the
Proposed Improvements to the applicable City boards, including, without limitation, the
applicable City land use boards (collectively, any and all such City boards shall be hereinafter
referred to as the "applicable City boards"). ADMSP shall pursue approval of its applications to
the applicable City boards diligently and in good faith. Failure of ADMSP to submit its
application(s) to the applicable City boards by the date, which is sixty (60) days from the receipt
of the City Manager's final approval of the Preliminary Plans and Specifications, as provided
above, shall constitute a default under this Agreement.
9.7.7 Plans and Specifications.
Upon receipt of the applicable City boards' approval of the Preliminary Plans and
Specifications, ADMSP shall prepare construction plans and specifications for construction of
the Proposed Improvements (the Plans and Specifications). The Plans and Specifications shall be
consistent with the Preliminary Plans and Specifications (approved by the City Manager and the
applicable City boards
9.7.8 Construction Commencement/ADMSP's Right to Terminate.
9.7.8.1 As conditions precedent to ADMSP's commencement of construction of the
Proposed Improvements, ADMSP shall obtain a final Full Building Permit for the Proposed
Improvements by not more than one (1) year from the Commencement Date, and failure to do so
shall constitute a default under this Agreement.
No later than thirty (30) days after ADMSP receives its final Full Building Permit for
construction of the Proposed Improvements, ADMSP shall provide evidence, reasonably
satisfactory to the City Manager or his designee (who may be the City's Chief Financial Officer),
regarding ADMSP's sources of funding for construction of the completion of the Proposed
Improvements (as approved and permitted by City, and in such amount(s) equal to the
anticipated final cost of completion, estimated as of the date of issuance of the Building Permit).
ADMSP shall not commence construction of the Proposed Improvements unless and until
(a) ADMSP shall have obtained and delivered to City copies of all final permits and approvals
required to commence construction; (b) ADMSP shall have delivered to City original
certificates of the policies of insurance required to be carried by ADMSP's contractor(s) (in
19
accordance with the requirements set forth in Exhibit "J" ,attached hereto); and (c) ADMSP
shall have obtained and furnished to City a payment and performance bond from ADMSP's
general contractor (the Payment and Performance Bond), in a form reasonably acceptable to
City, issued by a surety listed in the most recent U.S. Dept. of Treasury listing of approved
sureties, guaranteeing the performance by the general contractor for construction of the Proposed
Improvements. The City of Miami Beach, Florida, shall be named as a dual obligee under the
Payment and Performance Bond.
The City (acting solely in its proprietary and not in its regulatory capacity) shall
reasonably cooperate with ADMSP in obtaining the permits and approvals required to construct
the Proposed Improvements; shall sign any application reasonably made by ADMSP that is
required in order to obtain such permits and approvals; and shall provide ADMSP with any
information and/or documentation not otherwise reasonably available to ADMSP (if available to
City) that is necessary to procure such permits and approvals. Any such accommodation by City
shall be without prejudice to, and shall not constitute a waiver of City's rights to exercise its
discretion in connection with its regulatory functions.
9.7.8.2 ADMSP shall (a) commence construction of the Proposed Improvements on or
before ninety (90) days after all permits and approvals necessary for the commencement of
construction are issued, but no later than nineteen (19) months from the Commencement Date
(the "Construction Commencement Date"), and (b) thereafter continue to prosecute construction
of the Proposed Improvements with diligence and continuity to completion. "commence
construction" or "commencement of construction" means the commencement of major work
(such as pilings or foundations) for construction of the Proposed Improvements. Promptly after
commencement of construction, ADMSP shall notify the City Manager, in writing, of the actual
date of such commencement. Any and all preliminary site work (including, without limitation,
any environmental remediation and ancillary demolition) shall not be deemed to be
commencement of construction. If, after ADMSP has commenced construction, ADMSP fails to
diligently prosecute construction of the Proposed Improvements (subject to unavoidable delays),
and such failure continues (subject to unavoidable delays) for sixty (60) consecutive days after
ADMSP's receipt of notice of such failure, the City shall, in addition to all of its other remedies
under this Agreement, have the right to seek such equitable relief (either mandatory or injunctive
in nature) as may be necessary to cause diligent and continuous prosecution of construction of
the Proposed Improvements by ADMSP, it being understood that construction of the Proposed
Improvements is a material inducement for the City to enter into this Agreement and monetary
damages shall be inadequate to compensate the City for harm resulting from such failure.
Notwithstanding anything to the contrary contained herein, if ADMSP fails to substantially
complete construction of the Proposed Improvements by the date provided for in this Agreement,
then the same shall constitute a default under this Agreement.
9.7.8.3 "Unavoidable delays" shall mean delays due to strikes, slowdowns, lock-outs,
Acts of God, inability to obtain labor or materials, war, enemy action, civil commotion, fire,
casualty, eminent domain, catastrophic weather conditions, a court order that actually causes a
delay in the application of any requirement (unless resulting from disputes between or among the
party alleging an unavoidable delay, present or former employees, officers, members, partners or
shareholders of such alleging party, or of affiliates of such alleging party). The party alleging
20
unavoidable delay shall notify the other within twenty (20) days of such occurrence; however,
failure to do so shall not waive any rights caused by such delay. The times for performance
related to the Proposed Improvements shall be extended to the extent performance is delayed by
unavoidable delays.
9.7.8.4 ADMSP shall provide the City with written notice, which notice shall be no
earlier than thirty (30) days prior to the Construction Commencement Date, requesting that the
City remove the volley ball game area(s) currently situated within the Premises. The City shall
comply with removal of the volley ball game area(s) within seven (7) days from receipt of
written notice from ADMSP.
9.7.9 ADMSP's Right to Terminate.
Notwithstanding anything to the contrary contained herein, ADMSP shall have the right
to be released from its liability and to terminate this Agreement at any time prior to obtaining a
final Full Building Permit for construction of the Proposed Improvements because: (a) changes
to the Preliminary Plans and Specifications required by any or all of the applicable City boards,
or any other governmental authority, render the project economically unfeasible, in the
reasonable business judgment of ADMSP; (b) ADMSP, after good faith efforts, has been unable
to obtain a final Full Building Permit for the Proposed Improvements pursuant to the Plans and
Specifications; or (c) ADMSP, after diligent, good faith efforts, has been unable to raise the
funding required for the Proposed Improvements. In the event of termination of this Agreement
pursuant to subsections (a) and (b) above, each party shall bear its own costs and expenses
incurred in connection with this Agreement, and neither party shall have any further liability to
the other; provided further, however, that in the event of termination pursuant to subsection (c)
above, ADMSP shall reimburse the City for any reasonable out-of-pocket costs incurred by the
City up to the date of termination.
9.7.10 Substantial Comgletion/Completion of Construction.
Substantial completion of the Proposed Improvements shall be accomplished in a diligent
manner and, in any event, no later than eighteen (18) months from the issuance of a final Full
Building Permit. "Substantial completion", as used herein, shall require the issuance of a
temporary or final certificate of occupancy by the City of Miami Beach Building Department.
Final completion of the Proposed Improvements shall be accomplished in a diligent, good and
workmanlike manner, and in accordance with the Plans and Specifications (with no material
deviations except as expressly permitted herein).
Upon Substantial completion of the Proposed Improvements, ADMSP shall furnish the City
Manager with the following:
(a) a certification from ADMSP's architect (certified to City on the standard AIA
certification form) that it has examined the Plans and Specifications and that, in its
professional judgment, after diligent inquiry, construction of the Proposed
Improvements has been substantially completed in accordance with the Plans and
Specifications applicable thereto and, as constructed, the Proposed Improvements
comply with all applicable codes and laws;
21
(b) a copy or copies of the final certificates of occupancy for the Proposed Improvements
issued by the City of Miami Beach Building Department;
(c) lien waivers (in form and substance reasonably satisfactory to the City Manager) from
each contractor, subcontractor, supplier or material man retained by or on behalf of
ADMSP in connection with the construction of the Proposed Improvements,
evidencing that such persons have been paid in full for all work performed or
materials supplied in connection with the construction of the Proposed Improvements;
(d) a complete set of "as built" plans and a survey showing the improvement(s) for
which the construction of the Proposed Improvements has been completed. The City
shall have an unrestricted license to use such "as built" plans and survey for any
purpose related to the Premises without paying any additional cost or compensation
therefore, The foregoing requirement with respect to "as built" plans shall be
satisfied by ADMSP furnishing to the City Manager a complete set of Plans and
Specifications, with all addenda thereto and change orders in respect thereof, marked
to show all changes, additions, deletions and selections made during the course of the
construction of the Proposed Improvements; and
(e) Contractor's Final Affidavit (in form and substance reasonably satisfactory to the City
Manager) executed by the General Contractor (i) evidencing that all contractors,
subcontractors, suppliers, and material men retained by or on behalf of ADMSP in
connection with the construction of the Proposed Improvements have been paid in
full for all work performed or materials supplied in connection with the construction
of the Proposed Improvements, and (ii) otherwise complying with all of the
requirements under the Florida Construction Lien Law, Chapter 713, Florida Statutes,
as amended.
9.7.11 Extensions for Performance.
The times for performance related to the design and construction of the Proposed
Improvements, as set forth in this Section 9.7, may be extended for good cause shown, upon
request in writing to the City Manager; approval of any such extensions shall be at the City
Manager's sole judgment and discretion, but shall not be unreasonably withheld or delayed.
Notwithstanding the preceding paragraph, any and all construction, once commenced,
must be carried through continuously to completion; provided, however, that any interruption or
delay in the prosecution and completion of the work which shall have been caused by Act of
God, public enemy, or strike, or natural casualty, or other circumstances not occasioned by or
attributable to the fault, default or neglect of ADMSP, shall not be deemed to cause ADMSP to
be in default under this Agreement, so long as ADMSP exercises due diligence to cause the work
of construction to be carried through to completion as promptly and expeditiously after the
commencement thereof as possible.
9.7.12 AdditionalImprovements/Alterations.
In the event that ADMSP desires or deems it appropriate to make alterations, additions,
or improvements to the Premises (other than the Proposed Improvements), it will submit plans
for same to the City, for the prior written approval of the City Manager. No such alterations,
22
improvements, or additions shall be made without the express written approval of the City
Manager and, if approved, shall be ADMSP's sole cost and responsibility, and shall become the
property of the City upon completion of same. ADMSP shall not have the right to create or
permit the creation of any lien attaching to the City's interest in the Premises as a result of any
such alterations, improvements, or additions.
9.7.13 ADMSP hereby covenants and agrees that the Sculpture Park shall be open to the
public and have its first exhibition no later than five (5) months from the date of substantial
completion or November 15, 2013, whichever is earlier."
SECTION 10. CITY USE OF PREMISES.
10.1 Use by the City. Upon no less than fifteen (15) days prior written notice to
ADMSP, the City shall have the right to use the Sculpture Park, or any part thereof, subject to
availability, for the purpose of providing City-approved or sponsored public recreational,
cultural, and/or other programs and/or events, as may be deemed appropriate by the City
Manager, in his sole and reasonable discretion, and without the payment of any rental or use fee,
except that direct out-of-pocket expenses incurred in connection with such uses shall be paid by
the City. City uses of the Sculpture Park shall not be in conflict with, ADMSP's approved uses
and shall be booked in advance, upon reasonable notice.
10.2 Use of Art Work(s) by City for Art in Public Places (AiPP).
ADMSP acknowledges that from time to time the City may request the temporary loan of
Artwork(s) owned by and/or donated to ADMSP, for exhibition and display by the City in front
of or within aCity-owned facility or building, and/or in a City-owned park, on a public right of
way, or other public area and/or facility. ADMSP hereby consents to making donated Art
Work(s) or other Art Work(s) owned by ADMSP available to the City for such limited use
subject to the following conditions:
a) The request for loan of Artwork(s) shall be made to ADMSP by the City
Manager or his designee, in writing, at least thirty (30) days prior to the
actual date of commencement of the City's intended use;
b) The written request shall also state the term (duration) of the proposed
loan and the location of the intended public area and/or facility where the
Art Work will be displayed and/or exhibited (and, more specifically,
where the Artwork(s) will be situated within the proposed public property
where it is intended to be displayed and/or exhibited);
c) The City shall be responsible for all costs related to shipment and delivery
of the Art Work(s), both to the intended location, and in returning to
ADMSP (upon conclusion of the term of the proposed loan);
d) Upon placement of the Art Work(s) at the intended location, the City shall
be responsible for insuring (and/or self-insuring) the Artwork(s) for the
appraised value of the Work(s). The City Manager shall either have an
appraisal of the Artwork(s) done, prior to commencement of the loan, or,
at his discretion, may accept a recent appraisal by ADMSP. In either case,
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the City and ADMSP shall mutually agree in writing on the appraised
value of the Art Work prior to commencement of the City's use, and the
agreed-upon value shall serve as the value of the Work for the City's
insurance (or self-insurance) requirement;
e) ADMSP shall have the right to request that the City return the Artwork(s)
prior to the conclusion of the term of the loan, by providing written notice
to the City Manager; provided, however, that ADMSP shall be responsible
for all costs associated with return shipment and delivery of the Work(s),
as well as any pro-rated insurance costs incurred by the City (for the full
term of the intended City use); and
f) The City shall contract with ADMSP for maintenance and cleaning of the
Artwork.
SECTION 11. ADMSP'S FINANCIAL CONTRIBUTION.
The City and ADMSP agree and acknowledge that a vital component of ADMSP's
mission statement with respect to this Agreement is to use its best efforts to obtain public/private
funding contributions for the design and construction of the Proposed Improvements and,
thereafter, for the continuous operation, management, and maintenance of the Sculpture Park in
accordance with the highest levels of service. Accordingly, ADMSP hereby represents that it
shall use its best efforts with respect to undertaking a coherent and consistent fund-raising effort
to fund the design and construction of the Proposed Improvements, and the management,
operation, and maintenance of the Sculpture Park.
ADMSP further acknowledges and understands that the City shall in no way be obligated
to supplement and/or otherwise contribute any funds for the Proposed Improvements, or for
ADMSP's management, operation, and maintenance of the Premises.
SECTION 12. ASSIGNMENT.
ADMSP may not assign this Agreement, or any part thereof, without the prior written
approval of the City, which approval, if given at all, shall be at the sole discretion of the Mayor
and City Commission. This Agreement is made with the understanding that ADMSP shall at all
times, throughout the Term hereof, remain anot-for-profit corporation. In the event that
ADMSP ceases to be anot-for-profit corporation, or the City, through the City Manager, in his
reasonable discretion and judgment, determines that the Premises are not being used for the
stated purposes in Section 4, then this Agreement shall be subject to termination upon thirty (30)
days written notice by the City Manager to ADMSP.
SECTION 13. USE OF THE PARK IS PRIMARY/SECURITY.
13.1 The Park is for the use of the public. Accordingly, the Sculpture Park shall only
be used for those purposes in Section 4, and the public's right to use the Park shall not be
infringed upon by any act of ADMSP. ADMSP shall use best efforts to assure that the uses and
activities conducted by ADMSP on the Premises shall not unduly interfere with the public's right
to use the Park, and ADMSP hereby covenants to use the Premises only for such public
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recreational purposes as contemplated in this Agreement.
SECTION 14. PERMITS, LICENSES, COMPLIANCE WITH LAWS.
14.1 ADMSP agrees to obtain and pay for all permits and licenses necessary for the
conduct of its uses and activities on the Premises. ADMSP shall comply with all rules,
regulations and laws of the City, Miami-Dade County, the State of Florida, and the U.S.
Government, whether now in force or hereinafter adopted, and as same may be amended from
time to time.
SECTION 15. UTILITIES, RESPONSIBILITY FOR TAXES AND
ASSESSMENTS.
15.1 Utilities.
ADMSP shall be solely responsible for and shall pay (whether to the City or
directly to the utility) before delinquency, any and all charges for utilities on the Premises
(including, without limitation, water, electricity, gas, heating, cooling, cable, Internet, telephone,
sewer, trash collection, etc.).
15.2 Procedure If Taxes Assessed.
ADMSP agrees to, and shall pay before delinquency, all taxes and assessments of
any kind assessed or levied, whether upon ADMSP or the Premises, by reason of this Agreement
or by reason of any use(s) and/or activity(ies) of ADMSP upon or in connection with the
Premises. The parties agree that ADMSP's operation and use of the Premises is for public
purposes and, therefore, no ad valorem taxes should be assessed by the Miami-Dade County Tax
Appraiser. If, however, if taxes are assessed by the Property Tax Appraiser, ADMSP shall be
solely responsible for payment of same.
SECTION 16. SIGNAGE.
16.1 Generally. ADMSP shall provide, at its sole cost and responsibility, any required
signage on the Premises, subject to the prior written consent of the City Manager (which shall
not be unreasonably withheld or delayed), and subject further to all applicable planning and
zoning requirements of the City.
16.2 Naming Rights.
The City reserves the name-in-title rights (i.e. the right to name) in Altos del Mar Park
and all revenue(s) that may be derived therefrom.
ADMSP shall be permitted to name the Premises "The Altos del Mar Sculpture Park,"
and shall also be permitted to name the interior portions of the Sculpture Park (which may
include, without limitation, the "outdoor galleries" described in subsection 4.2.3.1; the museum
building contemplated in subsection 4.1.10; and/or any of the sculpture foundations, the entrance
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pavilion and other Proposed Improvements described in Section 9.7 hereof) if and only if the
City Commission approves and adopts an ordinance amending Chapter 82, Article VI, Section
82-501 through 82-505, as same may be amended from time to time (hereinafter, the "City's
Naming Ordinance"), exempting the Sculpture Park from the requirements of the City's Naming
Ordinance. In the event the City Commission does not pass and adopt the aforesaid ordinance
(amending the City's Naming Ordinance) by December 31, 2009, then ADMSP shall have right
to terminate this Agreement, which right must be exercised, in writing, by ADMSP no later than
March 1, 2009. If ADMSP does not exercise its right to terminate pursuant to this Section 16.2
by the aforestated date, then ADMSP shall be deemed to have waived such right.
ADMSP shall include the name of the City of Miami Beach in its publications,
advertising, promotions, websites, announcements, and other similar and related materials
referring to the Sculpture Park; provided, however, that ADMSP shall not use the City's name
and/or logo in any of the aforestated medics and/or materials issued by ADMSP, or in any other
manner (whether express or implied), for the purpose of soliciting funding, donations, and/or
other monies for the Sculpture Park (other than to identify the location of the Sculpture Park as
being situated within the City of Miami Beach), without the express written consent and/or
permission of the City Manager.
All signage (whether exterior or interior) shall be subject to the City Manager's prior
written approval as to size, location, materials, and aesthetics. ADMSP agrees that it shall bear
all costs to obtain and install any new signage (including, without limitation, any costs related to
obtaining all required approvals and/or permits).
Naming rights in connection with sponsorships (i.e. sponsorship names) shall be subject
to the City Manager's prior written approval, which shall not be unreasonably withheld. In no
event shall any sponsorship names be permitted which includes the names of any company
selling the following type of products: guns, tobacco, or sexual products (the "Prohibited
Names").
In no event shall any portion of the Sculpture Parkbe named or re-named after an
individual who has committed an illegal act (regardless of whether it becomes known to ADMSP
and/or the City before or after the approval of the proposed naming).
In such event, ADMSP shall immediately remove (or cause to be removed) such name(s)
from the Sculpture Park and/or any portion(s) thereof, and the City shall have no liability,
whether to ADMSP and/or third parties, in connection with such removal.
ADMSP shall be entitled to all naming right revenues derived herefrom; provided
however that any revenues in connection with any naming rights pursuant to this Section 16.2
must be utilized by ADMSP and shall be dedicated exclusively for management, operation and
maintenance of the Sculpture Park, and shall be reported to the City during the City's annual
review of ADMSP's proposed operating budget for the Sculpture Park (pursuant to Section 7
hereof).
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Notwithstanding anything in this Section 16.2, no name (and/or signage related thereto)
approved in the Sculpture Park, or any portion thereof, shall be allowed to remain beyond the
Term of this Agreement, and the City shall have no liability, whether to ADMSP and/or to third
parties, in connection with the removal of any signage following the termination and/or
expiration of this Agreement.
SECTION 17. FORCE MAJEURE.
17.1 The performance of any act by ADMSP or the City hereunder may be delayed or
suspended at any time while, but only so long as, either party is hindered in or prevented from
performance by Acts of God (including without limitation hurricanes), the elements of war,
rebellion, strikes, lock-outs, fire, explosion, or any other casualty or occurrence not due to either
ADMSP's and/or the City's negligence and beyond the reasonable control of the parties;
provided, however, that if the condition of Force Majeure exceeds a period of 180 days, then
either the City or ADMSP may, at their respective option and discretion, terminate this
Agreement upon written notice to the other party.
17.2 Premises Unusable.
In the event a Force Majeure renders the Premises unusable, in whole or in part, as
determined in the reasonable judgment and discretion of the City Manager, the City may, at its
sole option and discretion: (i) elect, as soon as practicable, to compel ADMSP to utilize
insurance proceeds to repair the damaged property, and the Term of the Agreement shall be
abated until such time as ADMSP may re-open the Sculpture Park after restoration or repair of
the damaged property; or (ii) elect not to have ADMSP repair or restore the damaged property
and, in such event, this Agreement shall be terminated as of the date of said occurrence of
damage or casualty. In the event the City elects option (i) above: (1) ADMSP must give
written notice to the City Manager, within sixty (60) days receipt of the City's notice of election
of option (i), that ADMSP is willing to undertake the repair of the damage with its own or other
available funds; (2) within twelve (12) months following such notice, ADMSP shall prove, to the
City Manager's reasonable satisfaction and discretion, that it has adequate funds immediately
available to undertake the repair; and (3) the City and ADMSP, each acting in its reasonable
discretion, shall agree within a reasonable time (but not to exceed six (6) months unless
otherwise extended in writing by City Manager) after the City Manager deems that ADMSP has
demonstrated that it has adequate funds to undertake the repair, to the conditions, timing, plans,
procedures, contractors, subcontractors, disbursement mechanisms, and other matters with
respect to the repair; and (4) ADMSP must complete any and all repairs and/or restoration no
later than eighteen (18) months from the date of the City Manager's approval of ADMSP's
funding capability.
SECTION 18. INSPECTION.
ADMSP agrees that the Premises may be inspected at any time upon reasonable notice
(whether written or verbal) by the City Manager and/or or his authorized representatives, or by
any other State, County, Federal, and/or municipal officer or agency having responsibilities for
inspections of the Premises and/or any operations thereon. ADMSP agrees to immediately
27
undertake the correction of any deficiency cited by such inspectors.
The City Manager and/or his authorized representatives, shall also have the right to enter
upon the Premises at all reasonable times to examine the condition and use thereof (including,
without limitation, for the purpose of assessing the condition of the facility as referenced in
Section 7.1(g)), provided that such right shall be exercised in such manner so as not to materially
interfere with ADMSP's activities on the Premises.
Notwithstanding the preceding paragraph or anything contained in this Agreement, if the
Premises are damaged by fire, windstorm or by other casualty that causes the Premises to be
exposed to the elements, then the City Manager or his authorized representatives may enter upon
the Premises, without notice to ADMSP, to make emergency repairs; but if the City exercises its
option to make emergency repairs, such act or acts shall not be deemed to excuse ADMSP from
its obligation to keep the Premises in repair. If City makes any emergency repairs pursuant to
the terms hereof, ADMSP shall reimburse the City for all such repairs upon receipt by ADMSP
of City's notice of repairs made and statement and proof of costs incurred.
SECTION 19. WAIVER OF INTERFERENCE.
ADMSP hereby waives all claims for compensation for loss or damage sustained by
reasons of any interference with its operation and management of the Premises by any public
agency or official as a result of their enforcement of any laws or ordinances or of any of the
rights reserved to the City herein. Any such interference shall not relieve ADMSP from any
obligation hereunder.
SECTION 20. INSURANCE REQUIREMENTS.
20.1 ADMSP shall maintain, at its sole cost and expense, the following types of
insurance coverage at all times throughout the Term hereof:
a. General liability insurance with not less than the following limits, subject
to adjustment for inflation:
General aggregate $2,000,000
Personal and advertising (injury) $1,000,000
(Per occurrence) $1,000,000
Fire damage $ 100,000
Medical Expense $ 5,000
b. Workers Compensation Insurance, as required under the Laws of the State
of Florida.
c. Automobile Insurance covering all owned, leased, and hired vehicles and
non-ownership liability for not less than the following limits, subject to
adjustment for inflation:
Bodily Injury $1,000,000 per person
Bodily Injury $1,000,000 per accident
Property Damage $ 500,000 per accident
d. Artworks (Fine Arts Policy) $ 50,000,000
(dependent on actual market value of Artwork in exhibition)
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e. Fire Insurance shall be the responsibility of ADMSP.
The policies of insurance referred to above shall not be subject to
cancellation or changing coverage, except upon at least thirty (30) days
written notice to the City, and then subject to the prior written approval of
City Manager. ADMSP shall provide the City with a certificate of
insurance for each such policy, which shall name the City of Miami
Beach, Florida, as an additional named insured. All such policies shall be
obtained from companies authorized to do business in the State of Florida
with an A.M. Best's Insurance Guide (latest edition) rating acceptable to
the City, through its Risk Manager, and any replacement or substitute
company shall also be subject to the approval of the City, through its Risk
Manager. Should ADMSP fail to obtain, maintain or renew any of the
policies of insurance referred to above, in the required amounts, the City
may deem such failure an event of default hereunder, and at its sole option
and discretion (but not obligation), may obtain such insurance., Any sums
expended by the City in obtaining said insurance, shall be repaid by
ADMSP to the City, plus ten percent (10%) of the amount of premiums
paid to compensate City for its administrative costs. If ADMSP does not
repay the City's expenditures within fifteen (15) days of demand, the total
sum owed shall accrue interest at the rate of twelve percent (12%) until
paid.
20.2 Adiustment of Limits.
All of the limits of insurance required pursuant to this Section 20 shall be subject to
review by the City and, in connection therewith, ADMSP shall carry or cause to be carried such
additional amounts as City may reasonably require from time to time, but City may not impose
such new limits any more frequently than once in every five (5) year period from the
Commencement Date. Any request by City that ADMSP carry or cause to be carried additional
amounts of insurance shall not be deemed reasonable unless such additional amounts are
commonly carried in the case of similar projects in South Florida of a size, nature and character
similar to the size, nature and character of the Premises.
SECTION 21. INDEMNIFICATION.
21.1 ADMSP shall indemnify, hold harmless and defend the City, its officers, agents,
servants and employees, from and against any claim, demand or cause of action of whatsoever
kind or nature, including, but not limited to, reasonable attorneys fees and cost(s) arising out of
error, omission, or negligent act of ADMSP, and/or its officers, agents, servants, employees,
contractors, or volunteers under this Agreement.
21.2 In addition, ADMSP shall indemnify, hold harmless and defend the City, its
officers, agents, servants and employees, from and against any claim, demand or cause of action
of whatever kind or nature arising out of any willful misconduct of ADMSP not included in
Section 21.1 and for which the City, its officers, agents, servants or employees are alleged to be
29
liable. This subsection shall not apply, however, to any such liability as may be the result of the
gross negligence or willful misconduct of the City, its officers, agents, servants or employees.
21.3 In addition to the indemnification requirements in Sections 21.1 and 21.2 above,
ADMSP shall also require any and all users of the Premises (including, without limitation,
exhibitors, owners of Art Work, third party renters (except the City), etc. to indemnify, defend
and hold the City harmless. This indemnity provision shall be included in ADMSP's form
agreements, as required under Section 4.2.3.7.
21.4 Subrogation. The terms of insurance policies referred to in Section 20 shall
preclude subrogation claims against ADMSP, the City and their respective officers, agents,
servants, and employees.
21.5 The provisions of this Section 21 shall survive the termination and/or expiration
of this Agreement.
SECTION 22. NO LIENS.
ADMSP agrees that, it will not suffer, or through its actions or anyone under its control
or supervision, cause to be filed upon the Premises any lien or encumbrance of any kind. In the
event any lien is filed, ADMSP agrees to cause such lien to be discharged within ten (10) days
therefrom, and in accordance with the applicable law and policy. If this is not accomplished, the
City may automatically terminate this Agreement, without further notice to ADMSP.
SECTION 23. ADMSP EMPLOYEES AND MANAGERS.
23.1 The City and ADMSP recognize that in the performance of this Agreement, it
shall be necessary for ADMSP to retain qualified individuals to effectuate and optimize
ADMSP's management and operation of the Premises. Any such individuals, whether
employees, agents, independent contractors, volunteers, and/or other, employed, retained, or
otherwise engaged by ADMSP for such purpose(s) shall not be deemed to be agents, employees,
partners, joint venturers, or associates of the City, and shall not obtain any rights or benefits
under the civil service or pension ordinances of the City or any rights generally afforded
classified or unclassified employees of the City; further they shall not be deemed entitled to the
Florida Worker's Compensation benefits as employees of the City. Additionally, ADMSP,
and/or any employees, agents, independent contractors, volunteers, and/or others, acting under
the authority and/or with the permission of ADMSP for the purposes set forth herein, shall never
have been convicted of any offense involving moral turpitude or felony. Failure to comply with
this Section shall constitute cause for termination of this Agreement. ADMSP shall have an
experienced manager or managers overseeing the Premises at all times. Any criminal activity on
the Premises caused by or knowingly permitted by ADMSP shall result in automatic termination
of this Agreement.
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23.2 Contract Administration.
a. The City's contract administrator shall be the City Manager and/or his
authorized designee. ADMSP shall name a specific individual to serve as
its contract administrator.
b. The City's contract administrator shall have the authority to give all
approvals for the City while administering this Agreement, with the
exception of items which would require City Commission approval. The
City's contract administrator:
(i) Shall be the liaison between the City and ADMSP on all matters
relating to this Agreement.
(ii) Shall be responsible for ensuring that any information supplied by
ADMSP is property distributed to the appropriate City
departments.
(iii) Shall be responsible for contract compliance by ADMSP
(including, without limitation, ADMSP's activities, programming,
operations, management, and maintenance of the Premises).
c. ADMSP shall name an individual who shall serve as the general manager
of the Club and who:
(i) Shall be the liaison between the City and ADMSP on all matters
relating to this Agreement.
(ii) Shall be responsible for the day-to-day management and
supervision of the Premises.
(iii) Shall be responsible for providing supervision and direction to
ADMSP and/or the Sculpture Park's employees, agents,
contractors, volunteers, and/or others.
SECTION 24. NO IMPROPER USE.
ADMSP will not use, and shall use its reasonable efforts to not suffer or permit any
person to use, in any manner whatsoever, the Premises for any unlawful, improper, immoral or
offensive purpose, or for any purpose otherwise in violation of any Federal, State, County, or
municipal ordinance, rule, order or regulation, or of any governmental rule or regulation,
whether now in effect or hereinafter enacted or adopted. Should ADMSP become aware of any
such use by any person, it shall take corrective action in a reasonable amount of time to stop such
use. ADMSP agrees not to use (or to permit use of) the Premises for any offensive or
dangerous activity, nuisance, or anything against public policy.
SECTION 25. NO DANGEROUS MATERIALS.
ADMSP agrees not to use or permit in, on, or within the Premises the storage and/or use
of gasoline, fuel oils, diesel, illuminating oils, oil lamps, combustible powered electricity
producing generators, turpentine, benzene, naphtha, propane, natural gas, or other similar
substances, combustible materials, or explosives of any kind, or any substance or thing
prohibited in the standard policies of fire insurance companies in the State of Florida. Any such
substances or materials found in, on, or within the Premises shall be immediately removed.
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ADMSP shall indemnify and hold City harmless from any loss, damage, cost, or expense of the
City, including, without limitation, reasonable attorney's fees, incurred as a result of, arising
from, or connected with the placement by ADMSP of any "hazardous substance" or "petroleum
products" in, on, or within the Premises as those terms are defined by applicable Federal and
State Statute, or any environmental rules and environmental regulations promulgated thereunder;
provided, however, ADMSP shall have no liability in the event of the willful misconduct or
gross negligence of the City, its agents, servants or employees. The provisions of this Section 25
shall survive the termination or earlier expiration of this Agreement.
SECTION 26. NO CLAIM AGAINST CITY OFFICERS, EMPLOYEES,
INDIVIDUALS.
It is expressly understood and agreed by and between the parties hereto that all
individuals, employees, officers, and agents of the City are acting in a representative capacity
and not for their own benefit; and that neither ADMSP, nor any of its employees, agents,
contractors, volunteers, guests, invitees, and/or others, shall have any claim against them or any
of them as individuals in any event whatsoever in conjunction with any acts or duties which are
reasonably related to the performance of their duties.
SECTION 27. DEFAULT AND TERMINATION.
If either party fails to perform in accordance with any of the terms and conditions of this
Agreement, and such default is not cured within thirty (30) days after written notice is given( or
if not curable within thirty (30) days, the party has begun to take curative action within thirty
(30) days and is continuing to pursue such cure), the aggrieved party shall have the right to
terminate this Agreement and, as the case may be, either vacate or re-enter the Premises, without
further notice or demand. At its option, either party may also pursue any and all legal remedies
available to seek redress for such default. The default and termination rights afforded the parties
in this Section 27, shall in no way limit or otherwise preclude the City from exercising such other
rights to terminate this Agreement, as may be expressly provided in other sections hereto.
SECTION 28. PROCEDURE UPON EXPIRATION AND/OR TERMINATION BY
CITY
28.1 ADMSP shall, on or before the last day of the Term herein, or the sooner
termination thereof, peaceably and quietly leave, surrender and yield unto the City, the Premises,
together with any and all improvements and fixtures located at or on the Premises (including,
without limitation, the landscaping and Proposed Improvements) and used by ADMSP in the
management, operation and maintenance of the Premises (excluding any furnishings, fixtures,
and equipment, or other personal property which can be removed without material injury to the
Premises), free of all liens, claims and encumbrances and rights of others, and broom-clean, and
in good order, condition and repair, reasonable wear and tear excepted. Any property which
pursuant to the provisions of this subsection is removable by ADMSP on or at the Premises upon
the termination of this Agreement and is not so removed may, at the option of the City, be
deemed abandoned by ADMSP, and either may be retained by the City as its property, or may be
removed and disposed of by City, at the sole cost of ADMSP, in such manner as the City may
32
see fit.
If the Premises are not surrendered at the end of the Term as provided in this
subsection, ADMSP shall make good to the City all damages which the City shall suffer by
reason thereof, and shall indemnify the City against all claims made by a succeeding occupant (if
any), so far as such delay is occasioned by the failure of ADMSP to surrender the Premises as
and when herein required.
28.2 ADMSP covenants and agrees that it will not enter into agreements (whether
express or implied) relating to the Premises for a period of time beyond the stated expiration date
of this Agreement.
SECTION 29. TERMINATION FOR LACK OF FUNDS.
In the event that ADMSP loses its funding (including, without limitation, loss of its
funding due to a cancellation or major change by the U.S. government of the 501(c)(3) public
charity rules or the IRS taxable deductions rules which would delay or make it impossible to
collect donations), such that it can no longer manage, operate, and maintain the Sculpture Park
and the Premises in accordance with the objectives and uses herein, then the City may, at its sole
option and discretion: (i) supplement any lack or loss of funds in order to allow ADMSP to
continue to manage and operate the Sculpture Park; or (ii) terminate this Agreement pursuant to
Section 27 hereof.
SECTION 30. NOTICES.
All notices from the City to ADMSP shall be deemed duly served if mailed by registered
or certified mail to ADMSP at the following address:
Altos del Mar Sculpture Park, Inc.
Attention: Dr. jur. Marlene Saile
7701 Collins Avenue
Miami Beach, FL 33141
All notices from ADMSP to the City shall be deemed duly served if mailed to:
City of Miami Beach
City Manager
1700 Convention Center Drive
Miami Beach, Florida 33139
with copies to: City of Miami Beach
Attention: Max Sklar, Director of Tourism and Culture
1700 Convention Center Drive
Miami Beach, Florida 33139
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ADMSP and the City may change the above mailing addressed at any time upon giving
the other party written notification. All notice under this Agreement must be in writing.
SECTION 31. NO DISCRIMINATION.
ADMSP agrees that there shall be no discrimination as to race, sex, color, creed, national
origin, physical handicap, or sexual orientation in the operations referred to by this Agreement;
and further, there shall be no discrimination regarding any use, service, maintenance or operation
of the Premises. All facilities located on the Premises shall be made available to the public,
subject to the right of ADMSP to establish and enforce reasonable rules and regulations to
provide for the safety, orderly operation, and security of the facilities.
SECTION 32. VENUE/WAIVER OF JURY TRIAL/DISPUTE MEDIATION.
32.1 This Agreement shall be governed by, and construed in accordance with, the laws
of the State of Florida, both substantive and remedial, without regard to principles of conflict of
laws. The exclusive venue for any litigation arising out of this Agreement shall be Miami Dade
County, Florida, if in state court, and the U.S. District Court, Southern District of Florida, if in
federal court. BY ENTERING INTO THIS AGREEMENT, CITY AND ADMSP
EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY
OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT.
32.2 If a dispute arises out of, or related to, this Agreement, or the breach thereof, and
if the dispute cannot be settled through negotiation, the parties agree first to try in good faith to
settle the dispute by mediation administered by the American Arbitration Association, or other
similar alternative dispute resolution organization, person or source agreeable to the parties,
before resorting to litigation or other dispute resolution procedure.
SECTION 33. INTENTIONALLY OMITTED
SECTION 34. MISCELLANEOUS PROVISIONS.
34.1 City's Governmental Capacity.
Nothing in this Agreement or in the parties' acts or omissions in connection herewith
shall be deemed in any manner to waive, impair, limit or otherwise affect the authority of the
City in the discharge of its police or governmental power.
34.2 Entire Agreement.
(a) Entire Agreement. This Agreement, together with the attachments hereto,
contains all of the promises, agreements, conditions, inducements and understandings between
City and ADMSP concerning the operation, management, and maintenance of the Premises, and
there are no promises, agreements, conditions, understandings, inducements, warranties or
representations, oral or written, express or implied, between them other than as expressly set
forth herein and in such attachments thereto or as may be expressly contained in any enforceable
34
written agreements or instruments executed simultaneously herewith by the parties hereto.
(b) Waiver Modification, etc. No covenant, agreement, term or condition of this
Agreement shall be changed, modified, altered, or waived except by a written instrument of
change, modification, alteration, or waiver executed by City and ADMSP. No waiver of any
default shall affect or alter this Agreement, but each and every covenant, agreement, term and
condition of this Agreement shall continue in full force and effect with respect to any other then
existing or subsequent default thereof.
34.3 Remedies Cumulative.
Each right and remedy of either party provided for in this Agreement shall be cumulative
and shall be in addition to every other right or remedy provided for in this Agreement, or now or
hereafter existing at law or in equity or by statute or otherwise (except as otherwise expressly
limited by the terms of this Agreement), and the exercise or beginning of the exercise by a party
of any one or more of the rights or remedies provided for in this Agreement, or now or hereafter
existing at law or in equity or by statute or otherwise (except as otherwise expressly limited by
the terms of this Agreement), shall not preclude the simultaneous or later exercise by such party
of any or all other rights or remedies provided for in this Agreement or now or hereafter existing
at law or in equity or by statute or otherwise (except as otherwise expressly limited by the terms
of this Agreement).
34.4 Performance at Each Partv's Sole Cost and Expense.
Unless otherwise expressly provided in this Agreement, when either party exercises any
of its rights, or renders or performs any of its obligations hereunder, such party shall do so at its
sole cost and expense.
34.5 Time is of the Essence.
Time is of the essence with respect to all matters in, and requirements of, this Agreement
as to both City and ADMSP including, but not limited to, the times within which ADMSP must
commence and complete construction of the Proposed Improvements.
34.6 No Representations by City.
City herein makes no representations as to the condition of the Premises.
34.7 Partnership Disclaimer.
ADMSP acknowledges, represents and confirms that it is an independent contractor in
the performance of all activities, functions, duties and obligations pursuant to this Agreement.
The parties hereby acknowledge that it is not their intention to create between themselves
a partnership, joint venture, tenancy in common, joint tenancy, co-ownership or agency
relationship for the purpose of this Agreement, or for any other purpose whatsoever.
35
Accordingly, notwithstanding any expressions or provisions contained herein, nothing in this
Agreement, shall be construed or deemed to create, or to express an intent to create a partnership,
joint venture, tenancy-in-common, joint tenancy, co-ownership, or agency relationship of any
kind or nature whatsoever between the parties hereto. The provisions of this Section 34.7 shall
survive termination and/or expiration of this Agreement.
34.8 Not a Lease.
It is expressly understood and agreed that no part, parcel, building, structure, equipment
or space is leased to ADMSP; that this Agreement is a management agreement and not a lease,
and that ADMSP's right to operate, manage, and maintain the Premises shall continue only so
long as ADMSP complies with the undertakings, provisions, agreements, stipulations and
conditions of this Agreement.
Accordingly, ADMSP hereby agrees and acknowledges that in the event of termination of this
Agreement, whether due to a default by ADMSP or otherwise, ADMSP shall surrender and yield
unto the City the Premises, in accordance with Section 28 hereof, and the City shall in no way be
required to evict and/or otherwise remove ADMSP from the Premises as if this were a tenancy
under Chapter 83, Florida Statutes, nor shall ADMSP be afforded any other rights afforded to
nonresidential tenants pursuant to said Chapter (the parties having herein expressly
acknowledged that this Agreement is intended to be a management agreement and is in no way
intended to be a lease).
34.9 No Third Party Rights. .
Nothing in this Agreement, express or implied, shall confer upon .any person, other than
the parties hereto and their respective successors and assigns, any rights or remedies under or by
reason of this Agreement.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
F:\atto\AGUR\AGREEMENT\Altos del Mar Management Agreement (Redline 6-8-09 with City Commission comments).doc
36
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and
their seals to be affixed; all as of this day and year first written above.
Attest:
City Clerk
Attest:
CITY OF MIAMI BEACH
Mai errera o ayor
ALTOS DEL MAR SCULPTURE PARK,
INC.
STATE OF FLORIDA
eaver, Secretary
Dr. jur. Marlene Saile, President
~.
-~
day of
or their designees
to be the persons
to and before me
COUNTY OF MIAMI-DADE
he foregoing instrument as owledged before me this
2009, by Mayor 4r~'! , Lam}-6~i`k,
respectively, on behalf of the CIT OF IAMI BEACH, known to me
described in and who executed the foregoing instrument, and acknowledged
that they executed said instrument for the purposes there, j~ expressed.
~ ~.~~
WITNESS my hand and official Pat this / rtav of
Notary Public, State of Florida at Lar
Commission No.:
My Commission Expires:
2009.
~ ~Oq
ate
37
APPROVED AS TO
FORM & LANGUAGE
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
SS:
The foregoing instrum was ac owledged before me this ~7f day of
2009, by ~~~ ~ C on behalf of the Altos del Mar
Sc ure Park, Inc., known to me to be the persons described in and who executed the foregoing
instrument, and acknowledged to and before me that they executed said instrument for the
purposes therein expressed. ~
WITNESS my hand and official seal, this day of ~~- , 2009.
Notary Public, State of Florida at Large
Commission No.:
My Commission Expires:
REBECCA GREER
sP + ~ u`,<<=. Notary Public • Siate of Florida
;~ily~,ir i o~x Apr 10, 2010
~~ .,;~ a v~d:•~r BO ded.8y NalioMM 539054
nn+,~ Asm.
38
EXHIBIT "A"
[SKETCH OF ALTOS DEL MAR PARK]
39
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EXHIBIT "B"
[SKETCH OF PREMISES]
40
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EXHIBIT "C"
SCULPTURE PARK PROGRAMMING
a. Changing exhibitions of the large and heavy sculptures at least every three (3)
years throughout the Term;
b. Changing exhibitions of the small to midsize sculptures at least every eighteen
(18) months throughout the Term.
c. Guided park tours by an art historian;
d. Art classes;
e. Classical, jazz or other music events that are cultural in nature (excludes loud
genres of music such as heavy metal);
f. Book author readings;
g. Kite flying;
h. Outdoor Cinema;
i. Exercise classes such as yoga, aerobics, pilates, ballet, qi gong, Tai Chi and/or
meditation classes; and
j. Yoga classes.
k. Limited private events such as wedding ceremonies and receptions, baptisms,
bar/bat mitzvahs, birthdays, graduations, and other similar social events.
EXHIBIT "D"
[RENTAL RATES, POLICIES, AND PROCEDURES]
(TO BE INSERTED)
42
EXHIBIT "E"
[INSURANCE REQUIREMENTS FOR EXHIBITIONS, THIRD PARTY RENTERS,
AND OTHER USERS OF THE PREMISES]
(TO BE INSERTED)
43
EXHIBIT "F"
THEMES OF PLANNED EXHIBITS
The Triumph of Modernism
The world of art during the "Roaring Twenties" was colorful and fascinating. People
were eager to recover the years of their lives lost during the war. The US began to play a
role of increasing importance for Europe. One of the most significant by-products of the
intellectual upswing in the mood of the period was the revival of interest in the human
body among artists and sculptors, who approached the theme in a wide variety of ways.
ART DECO emerged, and Archipenko's Rotating Torso must be seen in this context.
Building facade design was markedly influenced by ART DECO. Many sculptors, among
them such artists as Charles Despiau and Marcel Gimond, retained their calm style,
while Picasso once again injected restlessness into sculpture. The wonderful works of
Marino Marini date from this period, as to those of Hermann Haller and Pablo Gargallo.
Those years witnessed the appearance of works by Charles Chester French, who
realized Michelangelo's dream of transforming an entire mountain into a sculpture in
Mount Rushmore. Other noteworthy American artists active during this period were
James Earle Fraser and Paul Manship, who embraced ART DECO following a stay in
Rome. In Germany, Ernesto de Fiori, who had become a German citizen, was at work
on his delicately nerved human figures. Matare and Barlach experienced a phase of
creative bloom in those years. The works of Giacometti and Brancusi that date from this
period also represent important phases of their authors' development. Brancusi created
the most astounding sculptural work of the era between 1935 and 1938, the soldiers'
memorial in Tirgu Jiu, the only modern memorial of its kind erected during the period. Art
critics and historians still wonder today why he chose a small Romanian country village
as the site for this work. The first Surrealist sculptural works of Joan Miro and Salvador
Dali (Venus de Milo with Drawers, 1936) also represent the triumph of modernism.
The Fascination of Technology
Sculptors sought to compete with architects by creating towering sculptures. They were
fascinated by the rationality, the purposefulness, and the predictability of architectural
design. Technology invaded both figure and object; the Bauhaus gained rapidly in
significance. Artists involved in this line of development included Oskar Schlemmer,
Laszlo Moholy-Nagy, EI Lisitzky, Naum Gabo, Max Bill, the American Alexander Calder
and Alexander Rodschenko. This fascination was overshadowed by the increasing mood
of unrest that prevailed during the interim between World Wars, which is expressed in
playful, irrational forms. A Surrealist revolution gave rise to debates on strategy in art.
Artists associated with this tendency were Chirico, Kurt Schwitters, Man Ray, Hans Arp,
Marcel Duchamp, Magritte and Giacometti, as well as Meret Oppenheim. Characteristic
of the years between World Wars were pensive, arresting works of sculpture. One of the
most important works done during this period is Max Beckmann's Mann im Dunklen
(Man in the Dark) in which he hinted at the catastrophe that loomed ahead as early as
1934.
New Departures 1945 - 1960
As the world began to catch its breath in the aftermath of war, the focus of modern
sculpture shifted toward redefinition and re-formation of the figure. Representatives of
this tendency included Giacometti and Moore, with all of their dissimilarities, as well as
Laurens and Richier. For reasons specific to the genre, figurative aspects endured
longer in sculpture than in painting. Gradually, non-representational sculpture gained the
upper hand, in the work Arp, Wotruba, and Calder, for instance, and in the constructive
invention of pure form in the art of Max Bill, Gabo, and Pevser. As time went by, the
impact of American influences on post-war art became increasingly stronger, initially
more markedly in painting but later in sculpture as well. Such artists as Nathan Rapoport
or Gerhard Marcks realized significant works during this phase. Ossip Zadkine created
his City Destroyed in Rotterdam.
An equally powerful current in the sculpture of these years was invigorated by such
defenders of "realism" as the Italian artist Giacomo Manzi. This period was marked by
rivalry among a number of movements that sought to take the lead on the quest for the
right approach to sculpture -Surrealism, Realism, Constructivism, and others.
Post Modernism and More
As developments proceeded in the years following 1945, constraints on the presentation
of art were gradually lifted. Viewers were increasingly receptive to the new forms of
expression and learned to accept them as a part of their everyday experience. Radical
shifts and new concepts in art were no longer automatically suspected of posing a
danger to society. Subversive concepts were absorbed as sources of creative energy by
society. Socio-cultural processes contributed to the mix. Art embraced pluralism
intolerant of dogma which found expression in a staggering diversity of trends and
currents. In sculpture, public favor was bestowed primarily on artists that sought to
mediate between abstraction and figuration. Currents such as Minimal Art, Arte Povera,
Fluxus, Pop Art, Land Art and Installation gradually began to take shape. After aten-
year hiatus, Giacometti began presenting his works to the public again. Young British
sculptors like Reg Butler and Eduardo Paolozzi presented their work. George Rickey,
Hans Cricken, Chillida, and others realized monumental metal sculptures, and Uecker,
Tinguely, Nikki de St. Phalle, and Claes Oldenburg rose to the status of classical
sculptors. Anselm Kiefer created his Books, Naim June Paik made video installations,
and Conceptual art entered the foreground. Rounding out this brief resume, we look to
artists of the 21st century, who are just now beginning to break free of the influences
described above -among them such artists as Stefan Balkenhol, Jessica Stockholder,
Absalon, Sophie Calle, Sylvie Fleury, Isa Genzken, Miroslav Balka, Sol Lewitt,
Lawrence Weiner, Clegg & Guttman, Jeff Koons, Matt Mullican, and so on and so forth.
EXHIBIT "G"
[DETAILED DESCRIPTION/CONCEPTUAL SKETCH OF LANDSCAPE AREA]
45
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EXHIBIT "H"
[REVENUE GENERATING USES TO BE CONDUCTED BY ADMSP UPON
PREMISES]
a. Rental for limited private events such as wedding ceremonies and receptions, baptisms,
bar/bat mitzvahs, birthdays, graduations, and other similar social events;
b. Fundraising events;
c. Museum cafe, gift shop/bookstore;
d. Sale of donated sculptures;
e. Investment portfolio related to an endowment.
EXHIBIT "I"
["CMB MINIMUM SPECIFICATIONS FOR MAINTENANCE OF ALTOS DEL MAR
SCULPTURE PARK"]
(TO BE INSERTED)
47
EXHIBIT "J"
INSURANCE REQUIREMENTS FOR CONSTRUCTION
1. Worker's compensation insurance covering all employees of the Contractors (as required
by the laws of the State of Florida) and employer's liability insurance of not less than One
Million Dollars ($ 1,000,000) per occurrence.
2. Comprehensive general liability insurance in an amount of not less than One Million
Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) annual aggregate
covering personal injury and property damage. Such coverage shall include, but not be limited
to, the following:
i. Blanket contractual liability insurance covering all indemnity or hold harmless
agreements.
ii. Protective liability insurance for the operation of the Independent Contractors.
iii. XCU coverage (explosion, collapse or damage to underground property).
iv. Products and completed operations (for two (2) year extension beyond completion
of project).
3. Excess umbrella liability insurance with a limit of not less than Dollars ($ ) per
occurrence and in the aggregate in excess of the above mentioned insurance, which shall be
required only in any "wrap up" policy.
a) ADMSP may cause the insurance listed in this subsection to be provided through
an overall "wrap up" policy, in lieu of individual policies provided by
Contractors.
b) Comprehensive automobile insurance in an amount of not less than Two Million
Dollars ($2,000,000) combined single limit for bodily injury and property damage
covering all owned, non-owned or hired vehicles, trailers or semi-trailers,
including any machinery or apparatus attached thereto.
4. Builder's Risk Insurance (standard "All Risk" or equivalent coverage) in an amount not
less than the cost of construction, written on a completed value basis or a reporting basis, for
property damage protecting ADMSP, City, and ADMSP's General Contractor, with a deductible
of not more than Fifty Thousand Dollars ($50,000), subject to adjustment for inflation (except as
to flood and windstorm, with regard to which the deductible shall be a commercially reasonable
amount).
5. Comprehensive automobile insurance in an amount of not less than Two Million Dollars
($2,000,000) combined single limit for bodily injury and property damage covering all owned,
non[owned or hired vehicles, trailers or semi-trailers, including any machinery or apparatus
attached thereto.
48