MDPL Inc Management Agreement/Oceanfront Auditorium Inc.MA AGEMENT AGREEMENT BETWEEN D"^~
THE CITY OF MIAMI BEACH, FLORIDA ~ Z " 4 ~ 0 ~I
AND t~34 YM
MIAMI DESIGN PRESERVATION LEAGUE, INC.
FOR THE OPERATION
OF THE MIAMI BEACH OCEAN FRONT AUDITORIUM
(A.K.A. 10T" STREET AUDITORIUM)
THIS AGREEMENT, is made and executed as of this day of December,
2009, by and between) the CITY OF MIAMI BEACH, a municipal corporation organized
and existing under the laws of the State of Florida (the "City"), and MIAMI DESIGN
PRESERVATION LEAGUE, INC., a Florida not-for-profit corporation, whose principal
office is located at 100j1 Ocean Drive, Miami Beach, Florida 33139 ("MDPL").
RECITALS:
WHEREAS, the City is the owner of the Miami Beach Ocean Front Auditorium,
located at 1001 Ocean Drive, Miami Beach, Florida, which is also sometimes commonly
referred to as the 10t" Street Auditorium (the "Premises"); and
WHEREAS, a sketch of the Premises is attached as Exhibit "A" hereto; and
WHEREAS, since its construction in 1953, the Ocean Front Auditorium has
experienced a transformation due to the changing demographics of its intended users,
the conditions and related amenities available to potential users, and the revitalization of
South Beach throughlthe designation of the Art Deco Historic District (as well as the
subsequent designation of other local and national historic districts in the City of Miami
Beach); and
WHEREAS, ink recent years, the Ocean Front Auditorium has been used as a
site for various special events; movie productions; a host space for community meetings
and educational classes; a temporary serving location for the provision of meals to
senior citizens; and as a City "command post" (for the City Administration and the Police
and Fire Departments) for major special events on or near Ocean Drive, including,
without limitation, the Summit of the Americas, Pow-Wow, Super Bowl, and. New Years
Eve; and
WHEREAS, on May 10, 2006, the Mayor and City Commission approved
Resolution No. 2006-26194, approving an extensive capital renovation program for the
Ocean Front Auditorium (which also included renovations to the connecting Beach
Patrol Headquarters); and
WHEREAS, the renovations were substantially completed on October 2009; and
WHEREAS, MDPL is anot-for-profit organization committed to preserving,
promoting, and protecting the Art Deco Historic District including, without limitation, the
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preservation, promotion, and protection of the Ocean Front Auditorium as a historic,
architectural, educational, and cultural arts venue; and
WHEREAS, for the past twenty three (23) years, MDPL and its preceding
organizations/members have raised funds and volunteered time to improve the Art Deco
Historic District (including, without limitation, the Auditorium) by conducting tours and
educational programs regarding the City's history and the importance of the City's
architectural heritage; and
WHEREAS, in 1993, the Mayor and City Commission approved a concession
agreement with MDPL for use of a portion of the Ocean Front Auditorium for the
establishment and operation of an Art Deco Welcome Center; and
WHEREAS, since 1993, the Art Deco Visitor's Centerhas served as a central
point of information for an estimated 10,000 visitors per month, responding to inquiries,
and providing seminars, lectures, and guided architectural tours of the Art Deco Historic
District; and
WHEREAS, on June 27, 2001, the Mayor and City Commission approved
Resolution No. 2001'-24482, approving an agreement with MDPL to operate and
manage the entire Ocean Front Auditorium; said agreement having an initial term of
three (3) years, commencing on October 1, 2001, and ending on September 30, 2004,
with one two (2) year renewal term, at the City's sole discretion; and
WHEREAS, the renewal term expired on September 30, 2006, and (as set forth
herein) shortly thereafter the Premises closed for renovations; and
WHEREAS, now that the newly-renovated Ocean Front Auditorium has re-
opened, the City and MDPL are desirous of re-establishing the parties' former joint
"public/private" partnership of efforts to fully realize the Auditorium's potential; and
WHEREAS, MDPL is ready, willing, and able to operate and manage the
Premises on behalf of the City; to operate and develop the Ocean Front Auditorium, in
conjunction with the City, in a manner that will dramatically increase the programmatic
scope of the Auditorium's contribution to the community; and (to that end) to raise
substantial grant funds and private individual and corporate contributions for the
aforestated purposes; and
WHEREAS, terms for a new management agreement between the City and
MDPL, for the Ocean Front Auditorium, were discussed at, respectively, the September
3~d and October 29th, 2009 Finance and Citywide Projects Committee meetings; the
Committee recommended approval of a five (5) year agreement, with two (2) five (5)
year renewal terms (subject to the final agreement identifying measurable and
determinable benchmarks for MDPL); and
WHEREAS, accordingly, the Administration and MDPL have negotiated the
following Management Agreement, for an initial term of five (5) years, commencing on
January 1, 2010, and ending on December 31, 2014, with an option to renew for two (2)
additional five (5) year terms.
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 MDPL, and MDPL hereby accepts from the City, this
Agreement for the operation, management, coordination, programming, and
maintenance of the Premises (as more fully described and delineated in Exhibit "A"
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. TE
This Agreement shall! be for an initial term of five (5) years, commencing on the 1St day
of January, 2010 (Commencement Date), and ending on the 31St day December, 2014.
At the expiration of the initial term herein, and provided that MDPL (i) is in good
standing and free from default hereunder, and (ii) continues to operate, manage,
program, and maintain the Premises in accordance with the terms of this Agreement
(including, without limitation, in accordance with the objectives and approved uses as
hereinafter defined) this Agreement shall be automatically renewed for an additional five
(5) year term (the first renewal term); provided further that MDPL has met/complied with
the following "benchmarks, no later than ninety (90) days prior to the expiration of the
initial term, which compliance by MDPL shall be demonstrated and evidenced to the
City Manager's satisfaction.
The benchmarks for automatic renewal shall be as follows:
1.
Section 4.2.2 hereof. This benchmark shall include the development and
submission! for the City Manager's review and approval, of a proposed Art
Deco Museum Program Plan that provides a detailed site plan, fundraising
goals, and requirements, and timeline for the establishment of such, for the
development of a museum that is consistent with AMA standards. MDPL shall
raise all necessary funds, secure all necessary permits, and engage in all
necessary site improvements to implement the City-approved Art Deco
Museum Program Plan.
2. Increase in !membership. MDPL shall increase its membership (existing as of
the Commencement Date from the membership, which is 216 members) by at
least 25%; of which at least 75% of the additional members shall be paid
memberships.
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3. Educational Proarammina. MDPL shall provide a minimum of twelve
educationaljprograms each contract year during the initial term.
In the event that MDPL has not met and/or complied with all or any of the benchmarks
established above, or has not demonstrated sufficient evidence of compliance to the
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satisfaction of the City Manager, then the first renewal term shall not be renewed
automatically, but shall be subject to consideration and approval by the Mayor and City
Commission, which approval, if granted at all, shall be at the City Commission's sole
judgment and discretion.
At the expiration of the first renewal term, and provided that MDPL (i) is in good
standing and free f tom default hereunder, and (ii) continues to operate, manage,
program, and maintain the Premises in accordance with the terms of this Agreement
(including, without limitation, in accordance with the objectives and approved uses, as
herein defined), then the City Commission, at its sole judgment and discretion, may
renew the Agreement for an additional five (5) year renewal term (the second renewal
term). j
Notwithstanding anything in this Section 2, in the event MDPL decides not to renew the
Agreement, it shall provide the City Manager with written notice of its intent not to
renew, at least one (1) year prior to the expiration of the initial term (or the first renewal
term, as the case may be).
SECTION 3. PREMISES.
In addition to the description of the building set forth in Exhibit "A" hereto, the
Premises shall also be deemed to include all facilities, structures, fixtures, landscaping
and other improvements, whether existing as of the Commencement Date of this
Agreement, or as may be constructed throughout the Term. The parties acknowledge
and agree that, any improvements made to the Premises by MDPL during the Term,
excluding personalty (which shall be defined as any of MDPL's personal property on the
Premises which is not permanently affixed or is otherwise removable without damage to
the Premises including, without limitation, furniture, trade fixtures, and equipment owned
by MDPL), shall become the sole and exclusive property of the City and, upon request
by the City Manager or his designee, MDPL shall promptly execute a bill of sale (or
such other document as may be required by the City Manager) effectuating and
memorializing such proof of ownership by the City.
MDPL WARRANTS AND REPRESENTS THAT IT ACCEPTS THE PREMISES IN
THEIR "AS IS" "WHERE IS" CONDITION, WITHOUT ANY REPRESENTATION(S)
OR WARRANTY(IES) OF ANY KIND OR NATURE WHATSOEVER BY THE CITY,
WHETHER AS TO THEIR CONDITION, OR AS TO THE USE OR OCCUPANCY
WHICH MAY BE MADE THEREOF.
SECTION 4. OBJECTIVES /APPROVED USES.
4.1 Obiectiv~ s.
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4.1.1 The Miami Beach Ocean Front Auditorium, with its clearly defined
c ~ Itural arts theme, shall be geared toward all age groups, from
children to senior citizens (as more fully described and delineated
in' Exhibit "B" attached hereto, entitled "Art Deco Visitor's
CenterBusiness Plan").
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4.1.2
4.1.3
Wally Omitted.
4.1.4 Intentionally Omitted.
4.2
4.1.5 MDPL shall keep the museum portion of the Premises open and
free to the general public, during the hours of operation prescribed
in this Agreement.
4.1.6 Intentionally Omitted.
4.1.7 Intentionally Omitted.
4.1.8 MDPL agrees that the Premises shall be appropriate in
programming for the Art Deco Historic District where they are
4.1.9 Intentionally Omitted.
4.1.10 Intentionally Omitted.
4.1.11 Intentionally Omitted.
4.2.1 Generally. MDPL shall operate, manage, maintain, and program
the Premises as a public multi-purpose community resource
centered on an outstanding cultural and historic exhibition, archive,
a~ d educational center which shall provide:
a ~ enjoyment of all of the City's architectural historic districts;
b ! education for children and adults;
c., an enjoyable venue for visual and performing arts, special
events, and community meetings;
d.~ a catalyst for community promotion of historic preservation,
~ architectural quality, beautification, and aesthetic
improvement of the City; and
e.i a popular and memorable tourist destination.
DPL shall provide, at no cost to the City, the furniture, equipment,
;rsonnel, maintenance, and security, as required and necessary
support the approved uses (as hereinafter defined, and including,
Ithout limitation, the facilities and programming identified in
Khibit "B"), and as required and necessary to operate, manage,
aintain, and program afirst-class, top quality multi-purpose
iltural, social, recreational, and educational public facility within
~d befitting the City's crown jewel, its Art Deco Historic District.
The City and MDPL intend that the activities programmed in and
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pertaining to the Premises shall continuously increase in scope and
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umber so that the Art Deco Historic District and all the City's other
istoric districts and properties favorably impact an increasing
umber of residents and visitors.
4.2.2 Specifically. The Premises shall include the following programs,
services, activities, and uses:
Art Deco Visitor's Center, offering information and services
for visitors and tourists, including hotel bookings, excursions,
dining recommendations, brochures, maps, pamphlets, and
general information, and such other related services as
would be customarily offered in welcome centers in first-
class, high end tourist destinations. Should athird-party
entity be contracted by MDPL to operate and manage the Art
Deco Visitor's Center, such third-party entity and its
agreement with MDPL shall be subject to the prior review
and written approval of the City Manager.
Art Deco Museum, telling the story of the Art Deco District by
providing materials on display. A permanent collection will
interpret and explain the three (3) major .architectural styles
found in the District (Mediterranean Revival, Art Deco, and
MiMo). In addition to a permanent collection, short-term
exhibitions (lasting from one (1) to six (6) months) will offer
deeper looks at selected topics, and offer visual artists in the
South Florida area (who draw inspiration from the District
and its history) exhibition space to show and sell (subject to
obtaining the prior written approval for such proposed sale
from the City Manager or his/her authorized representative)
their work as such sale may be limited pursuant to Section
4.3.2.
Art Deco Lecture and Film Hall.
A multi-purpose space (i.e. "black box") within the Premises
will be equipped with audio-video capability, flexible seating
arrangements, and sliding panels that will allow the space to
be used as an enclosed lecture hall(s) or screening room(s)
or that, when fully opened, may be used as additional
exhibition space for the museum. Lectures, on a variety of
topics and themes, will continue to be a core element of
MDPL's public programming. Additionally, it is envisioned
that other organizations will be able to present lectures in
this space (under the auspices of MDPL). The screenin~
room(s) will screen films made during the first part of the 20t
Century; present documentaries related to the period; and
also screen works through partnering with the Wolfsonian
FIU, the Louis Wolfson II Media History Center, and other
South Florida film and video archives.
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d. Barbara Capitman Research Archives.
This collection would be permanently housed on the
~ Premises and available, by appointment, to scholars or
~ researchers with an interest in Capitman's legacy and the
history of the Preservation Movement in Miami Beach.
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e. Art Deco Academv /Tour School.
The Academy will offer residents and other interested
persons the opportunity to learn more about the City and the
Art Deco style. The Tour School will continue to recruit and
train volunteers for MDPL's walking tours of the Art Deco
District.
f Preservation Education.
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(i) Elementary through High School:
Using a curriculum designed in partnership with local
schools, students will participate in guided
explanations of the history surrounding them. The
preservation education program will also be used to
develop and train a group of student volunteers that
will undertake an updated survey of the National
Register District.
(ii) College and Adult Continuing Education:
In collaboration with the Florida International
University School (FIU) of Architecture, MDPL will
implement a four (4) week seminar program for
architecture and urban planning students to study in
Miami Beach to learn about the City's architectural
styles, and explore the impact of historic preservation
and its effect on economic revitalization. MDPL will
supervise FIU architecture students who, in
conjunction with MDPL, will design and construct a
scale replica of the Art Deco Historic District. It is
anticipated that this project will commence and be
completed during the Term (in four (4) phases, within
two [2] academic years).
g'. Official Art Deco Gift Shop, will provide for sale of affordable
and authentic Art Deco and Art Deco- themed merchandise
including jewelry, clothing, artworks, and souvenirs, as well
as books, CD's and DVD's providing
information/understanding of Art Deco, generally, and as it
relates to the City. The Gift Shop shall also serve as the
ticketing location for MDPL's Historic District architectural
tours and for obtaining self-guided audio tours in a language
other than English.
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li. MDPL Administrative Offices. - NOTE TO MDPL: NEED
BRIEF DESCRIPTION FOR OFFICE AND ITS PURPOSE.
WHICH SHOULD ALSO EMPHASIZE THAT IT'S
INTENDED TO OCUUPY A SMALL PORTION OF
PREMISESI
Facility Rental /Space Utilization.
The Premises will also be available for third party rentals for
limited private events such as wedding ceremonies and
receptions, baptisms, bar/bat mitzvahs, birthdays,
graduations, and other similar social events; ancillary events,
group meetings, and social functions related to convention
and meeting business; public meetings; and educational
and/or cultural events/programs/performances that are
intended to be open and available to the general public
(hereinafter such intended third party use of the Premises
may also be referred to herein, individually, as an "event" or,
collectively, as the "events.") MDPL shall follow and adhere
to rental rates and policies and procedures which shall be
mutually developed by MDPL and the City and subject to
final approval by the City Manager; and which approval shall
be obtained no later than six (6) months following the
Commencement Date. The City approved rental rates and
policies and procedures shall be attached as Exhibit "C"
hereto. The City reserves the right to amend said rental
rates and other policies and procedures, in its sole
discretion.
Notwithstanding the City approved policies and procedures
(to be attached as Exhibit "C" hereto), or any other term or
condition of this Agreement, any use of the Premises (or any
portion thereof) for an event(s) identified in this subsection
4.2.2(1) shall also be subject to the following scheduling
requirements:
(i) Renters of the Premises (excepting the City) shall be
required to provide certificates of insurance
(evidencing appropriate insurance coverage), as
determined by the City's Risk Manager (and
referenced within the attached Exhibit "D"). 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 MDPL and
the City of Miami Beach, Florida as additional insured.
(ii) In booking such events, MDPL shall use best efforts
to schedule the event outside of the regular hours of
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operation of the museum and/or the Visitor's
Center(as defined in Sections 4.2.2 (a) and (b)), so as
not to interfere with the use of those portions of the
Premises for their respective public purpose.
(iii) For events which are scheduled to be held during all
or any portion of the museum and/or Welcome
Center's regular hours of operation, and that will
require a clause of all or a portion of those areas,
MDPL shall be limited to scheduling a maximum of six
(6) 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 City
Manager's sole judgment and discretion. A written
request must be submitted by MDPL no later than
thirty (30) days prior to the requested date of the
event but, in all cases, no later than the execution of
any third party agreement between MDPL 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 Premises to be utilized (and whether the
event shall require the use of all or any portion of the
museum and/or Welcome Center). The notice shall
certify that MDPL has utilized any and all best efforts
to schedule the event outside of the regular operating
hours of the museum and/or Welcome Center, and
shall further set forth the reason(s) and necessity for
having the event during their respective hours of
operation. Notwithstanding, the City Manager or
his/her authorized representative may determine that
such events (whether the minimum number permitted
or any additional events submitted for approval)
require a Special Events permit from the City and
compliance with the City's Special Events
Requirements and Guidelines.
(iv) Renters/owners of the Premises shall be entitled to
secure their own food and beverage catering service
for the event. Notwithstanding, MDPL may provide to
such renters/users a list of "preferred" vendors that
are familiar with the premises.
Hereinafter, the City approved programs, activities, services, and uses by MDPL of the
Premises, as set forth in subsections (a) - (i) above, shall be collectively referred to as
the "uses" andlor the "approved uses".
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Fundraising events for MDPL which are scheduled to be
held during all or any portion of the museum and/or Visitor
Center's regular hours of operation shall be limited to a
maximum of five (5) such events per contract year during the
Term hereof. Approval of any MDPL fundraising events
which exceed the annual permitted maximum number of
fundraising events shall be subject to the prior written
approval of the City Manager, which approval, if given at all,
shall be~ at the City Manager's sole judgment and discretion.
Notwithstanding, the City Manager or his/her authorized
representative may determine that such events (whether the
minimum number permitted or any additional events
submitted for approval) require a Special Events permit from
the City and compliance with the City's Special Events
Requirements and Guidelines.
k. Additionally, subject to MDPL's obtaining the prior written
approval of the City Manager or his/her authorized
representative and, if deemed required by the City Manager
or his/her representative (as a condition of any such City
approval), subject further to MDPL obtaining a Special
Events permit from the City and compliance with the City's
Special Events requirements and guidelines, MDPL shall be
entitled to the periodic limited, non-exclusive use of that
certain public outdoor area situated between the 10t" Street
Auditorium and the Beach Patrol Headquarters building,
which outdoor area is also commonly referred to as the
"breezeway" and is generally described in the sketch
attached as Exhibit A-1 hereto.
4.3 Art Work and Exhibitions.
4.3.1 With the exception of the Gift Shop and art work
displayed in the short term exhibits by local visual
artists (as one of the uses of the Museum pursuant to
Section 4.2.2(b)), any art work or any other
goods/objects/materials (which may include, without
limitation, historical documents and artifacts, antique
furnishings and/or other period goods such as antique
jewelry and clothing), intended for display and
exhibition on the Premises, including, without
limitation, art work exhibited or displayed in the Art
Deco Museum, not included within the preceding
exception, shall be 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.
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4.3.2 WITH THE EXCEPTION OF THE GIFT SHOP AND
ART WORK DISPLAYED AS PART OF THE SHORT
TERM EXHIBITS BY LOCAL VISUAL ARTISTS (AS
ONE OF THE USES OF THE MUSEUM PURSUANT
TO SECTION 4.2.2(8) AND WHICH SALE HAS
BEEN APPROVED BY THE CITY MANAGER
PURSUANT TO THE PROCEDURES THERETO),
THERE SHALL BE NO SALE OF ART WORK OR
OF ANY OTHER GOODS/MATERIALS/OBJECTS
DISPLAYED AND/OR EXHIBITED ON THE
PREMISES, DURING SUCH TIME AS SAID ART
WORK (OR ANY OF SAID OTHER
GOODS/MATERIALS/OJBECTS) IS/ARE
PHYSICALLY ON THE PREMISES, NOR SHALL
ANY RELATED MATERIALS AND/OR
DOCUMENTS ISSUED BY MDPL AND/OR ANY
THIRD PARTIES WITH REGARD OR IN RELATION
TO THE ART DECO VISITOR'S CENTEROR THE
PREMISES REFERENCE THAT ANY ART WORK
OR OF ANY OTHER
GOODS/MATERIALS/OBJECTS EXHIBITED OR
OTHERWISE DISPLAYED ON THE PREMISES IS
INTENDED OR OFFERED FOR SALE OR RE-
SALE, OR FOR ANY COMMERCIAL USE,
ACTIVITY, OR PURPOSE. MDPL HEREBY
WARRANTS, REPRESENTS AND COVENANTS
THAT THE SOLE AND PRIMARY USE OF THE
PREMISES 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 (OR OF ANY OTHER
GOODS/MATERIALS/OBJECTS ARE INTENDED
TO BE EXHIBITED FOR SALE OR RE-SALE). ANY
VIOLATION OF THIS SECTION BY MDPL SHALL
RESULT IN IMMEDIATE TERMINATION OF THIS
AGREEMENT.
4.3.3 Notwithstanding Sections 4.3.1 and 4.3.2, the parties
acknowledge that MDPL, and/or third parties
(renters/users) scheduled through MDPL, may hold
certain events on the Premises which entail the
limited sale of goods and services, and which may
include the sale of art work (and/or other goods and
services), as part of a "silent auction" (or similar
event) for charitable or fundraising purposes. Such
events shall be expressly excluded from the
prohibition against the sale of art work (and other
goods/materials/objects) on the Premises (pursuant to
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Sections 4.3.1 and 4.3.2); provided, further, that the
event (silent auction or charity/fundraiser) in question
is directly related to the primary/main event held
and/or booked on the Premises and, accordingly,
shall terminate upon the conclusion of the
primary/main event.
4.3.4 MDPL shall be solely responsible (including, without
limitation, any and all costs associated. therewith) for
insuring and securing any art work displayed and/or
exhibited on the Premises.
SECTION 5. OPERATION AND MANAGEMENT OF THE PREMISES.
5.1 Subject to the objectives and approved uses in Section 4, and any and all
other terms, limitations and required approvals contained in this
Agreement, MDPL is authorized and required, and shall have the right to:
a. Manage and operate the Premises, and MDPL'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 MDPL 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 MDPL
as long as such records are 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 objectives and approved uses (as set forth in Section
4); and
Coordinate and cooperate with the City for use of the Premises by
the City, as set forth in Section 10 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, MDPL 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 MDPL
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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 Lummus Park and the
Premises; and may not materially interfere with the operations of Lummus
Park and the Premises. Subject to the preceding criteria, MDPL 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 MDPL 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 Premises for exhibitions, including, without limitation, display
and exhibition of art work and/or historic objects, artifacts, and materials
and any other goods to be displayed or exhibited on the Premises
(whether for a specific exhibition or otherwise); and/or ii) third party rental
and/or use of all or any portion of the Premises (excluding any City use(s)
thereof). Prior to the Commencement Date, MDPL shall submit its
proposed standard form contracts for, respectively, i) exhibitions; ii)
display and exhibition of art work and/or historic objects, materials and any
other goods (if not part of an exhibition); and iii) third party rental/use of
the Premises, to the City Manager, for his review, comment, and approval.
Once approved, MDPL 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 without obtaining the prior written
approval of the City Manager, which approval shall not be unreasonably
withheld.
MDPL shall also require all users of the Premises to execute (among the
terms of the aforestated form contract or in a separate written instrument)
an agreement to indemnify defend and hold harmless the City.
MDPL shall not rent, license or allow the use of all or any portion of the
Premises to other than short-term users except as otherwise provided for
in Section 4.2.2(a). MDPL 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 third party use. Such insurance shall be kept in
force at all times by all licensees, users, lessees, concessionaires or any
and all other such third parties. All liability policies shall name the City of
Miami Beach, Florida and MDPL as additional insureds.
5.4 The City Manager shall have the right to prohibit certain events or uses,
including exhibitions, from occurring on the Premises, upon the 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 MDPL within fourteen (14) days after the City
Manager has received the booking report from MDPL (as required under
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Section 5.6) that identifies 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 or other work (whether in conjunction with an exhibition or otherwise)
from public display if, upon the City Manager's reasonable determination,
such art work or other work might present unreasonable safety concerns
or be a threat to the health, safety and morals of the public.
5.5 With regard to any use of the Premises (whether currently contemplated in
this Section 4 or as may be subsequently proposed), in the event that
MDPL seeks to use the Premises for additional programs, services,
activities, and uses which are materially different 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. MDPL 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 MDPL. 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 MDPL; and incorporated with the other
approved uses in this Agreement (as evidenced by the City writing
approving same).
5.6 MDPL shall provide the City Manager or his designee with a quarterly
written report of all events, scheduled in the Premises for the up-coming
quarter 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.
5.7 The Premises shall be used by MDPL solely and exclusively for the
approved uses set forth in Section 4.2 (or such other uses as may be
approved by the City pursuant to the established procedures in Section
5.5). It is understood and agreed that the Premises shall be used by
MDPL during the Term of this Agreement only for the purposes and/or
uses described in (and/or otherwise approved pursuant to) Section 4.2,
and for no other purposes or uses whatsoever. In the event that MDPL
uses the Premises for any purpose(s) and/or use(s) not expressly
permitted in 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).
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5.8 Hours of Operation. -
The City and MDPL agree that normal hours of operation for the Premises
shall be as follows:
Art Deco Visitor's Center Museum
Tuesday -Sunday: 10:00 AM - 4:00 PM
Art Deco Visitors Center
Monday -Sunday: 10:00 AM - 4:00 PM
Art Deco Visitor's Center Gift Shop
Sunday -Wednesday: 10:00 AM- 7:00 PM
Thursday -Saturday: 10:00 AM -10:00 PM
MDPL Administrative Offices
[NOTE TO MDPL :PLEASE FILL IN]
The parties recognize and acknowledge that, under certain circumstances
(i.e. certain events under Section 4.2.2(1), MDPL's fundraisers (Section
4.2.2(j)), a City use, or approved special events), MDPL may be permitted
to extend its hours of operation for all or a portion of the Premises during
the duration of the actual event. However, any prolonged extension of any
or all of the hours of operation for the Premises 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 Premises' normal hours of operation (as set forth
above) be shortened without the prior written consent of the City Manager.
SECTION 6. REVENUE FROM PREMISES-RELATED ACTIVITIES/FINANCIAL
RECORDS AND REPORTS.
6.1 Revenue from Premises-Related Businesses/Activities.
The City acknowledges that MDPL may derive revenues from activities it
conducts on the Premises, including, without limitation, third party rental of
the Premises (as contemplated in Section 4.2.2(1)), the gift shop, classes,
and tours. MDPL acknowledges that any and all such revenue generating
activities conducted from or on the Premises shall be directly related to
and consistent with the objectives and approved uses in Section 4. Any
revenue generating activities conducted (or contemplated to be
conducted) from or on the Premises shall first be approved, in writing, by
the City Manager, 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 MDPL on the Premises, which submission shall be attached
and incorporated as Exhibit "G" hereto. Thereafter (and subject to
approval by the City Manager), said exhibit may be updated in writing by
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the parties, to include any approved new use(s)/business(es) on the
Premises.
6.1.2 Cessation/Suspension of Approved Use(s) and/or Business
Activity(ies).
Notwithstanding anything contained in 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 incompatible with the public recreational
purposes and character of the Premises, then the City Manager,
upon thirty (30) days prior written notice to MDPL, may revoke,
suspend, and/or otherwise disallow the objectionable use and/or
revenue generating activities, and MDPL shall immediately cease
and desist in providing, and/or continuing with, said use and/or
activities within the time period and in the manner prescribed in the
City's notice. In the alternative, the City Manager may allow MDPL
to continue with the subject uses, or activity(ies), subject to such
additional guidelines, as may be determined and established by the
City Manager, in his/her sole and reasonable discretion and
judgment.
6.2 Financial Records and Reports.
MDPL shall maintain on the Premises; or (if different) 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/her authorized representative access during normal
business hours to examine and audit such records and accounts.
Throughout the Term, and no later than one hundred and twenty (120)
days following the closing of the City's fiscal year (October 1St _
September 30th), MDPL 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 MDPL and
by its certified public accountant.
6.3 All revenues received by MDPL in connection with any approved use
and/or revenue generating activity shall be dedicated exclusively to help
fund MDPL's management, operation, maintenance and programming of
the Premises, as contemplated in the Agreement. In the event that
revenue pertaining to the Premises exceeds expenses during a particular
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budget year, the City and MDPL agree that such excess, if any, shall (i)
first be applied to offset any capital improvements and/or infrastructure
maintenance costs that the City Manager in his/her reasonable judgment
of discretion, deems necessary and required in order to maintain the
Premises in first-class condition and working order; and, thereafter, (ii) be
applied by MDPL to support its programming (or increased programming
consistent with the approved uses) on the Premises. For purposes herein,
"revenues" shall be also deemed to include public/private grant funding,
and unrestricted donations and contributions received by MDPL, whether
or not specifically ear-marked toward the operation, management,
maintenance and programming of the Premises.
6.4 No portion of the net earnings resulting from the activities of MDPL on the
Premises shall inure to the benefit of any private individual.
SECTION 7. BUDGET AND FUNDING FOR THE PREMISES.
7.1 Throughout the Term, MDPL shall prepare and present, by May 15th of
each year, a proposed, detailed line item annual operating budget for the
Premises 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;
c. Administrative, labor and general expenses;
d. Marketing, advertising and promotion expenses;
e. Utility costs;
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, MDPL shall identify for the City,
any required long term capital maintenance, repair, and
replacement of capital improvements and infrastructure. In
conjunction with this subsection (g), MDPL 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.
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h. Commencing with the second contract year of the Agreement, and
thereafter throughout the Term, MDPL 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 MDPL's proposed
programmatic plan for the Premises
detailing the (then-known) planned
programs, and operations, and (if
estimated number of users anticipated.
SECTION 8. INTENTIONALLY OMITTED.
annual budget shall be the
for the upcoming City fiscal year,
uses, services, activities, events,
readily available or known) the
SECTION 9. MAINTENANCE, REPAIRS, AND ALTERATIONS.
9.1 Generally.
Throughout the Term, MDPL shall be solely responsible (including any
and all costs associated therewith) for maintaining the Premises, (and all
improvements, furnishings, fixtures, and equipment thereon) in good
condition and working order, and will not suffer or permit any strip or waste
of the Premises.
MDPL shall assume sole responsibility and expense for day-to-day
housekeeping, janitorial services, and routine maintenance of the
Premises. This shall include, without limitation, daily removal of litter,
garbage and debris generated by MDPL's use of the Premises, including
all garbage disposal generated by its operations and activities.
9.2 Intentionally Omitted.
9.3 Intentionally Omitted.
9.4 Labor/Personnel/Materials/Eguipment/Furnishings.
MDPL 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 good condition and working order, and so
that they may be fully utilized in accordance with their intended use
including, without limitation, the objectives and approved uses set forth
herein; and in accordance with the first-class standard set forth in Section
4.1.2. 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 MDPL.
9.5 Intentionally Omitted.
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9.6 Security.
MDPL shall be responsible for and provide reasonable security measures
as may be required to protect and secure the Premises and any facilities,
materials, furnishings, fixtures, 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 MDPL and/or its officials, employees,
contractors, volunteers, patrons, guests, invitees, and/or any other third
parties.
9.7 Additionallmprovements/Alterations.
In the event that MDPL desires or deems it appropriate to make
alterations, additions, or improvements to the Premises, it will submit
plans for same to the City, for the prior written approval of the City
Manager. No such alterations, improvements, or additions shall be made
without the express written approval of the City Manager and, if approved,
shall be a MDPL's sole cost and responsibility, and shall become the
property of the City upon completion of same. MDPL shall not have the
right to create or permit the creation of any lien attaching to the Premises
as a result of any such alterations, improvements, or additions.
SECTION 10. CITY USE OF PREMISES.
10.1 Use by the City.
Upon no less than fifteen (15) days prior written notice to MDPL, the City
shall have the right to use the Premises, or any part thereof, subject to
availability, for the purpose of providing City-approved or sponsored public
recreational, cultural, educational and/or other programs, meetings, and/or
events, as may be deemed appropriate by the City Manager, in his/her
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.
SECTION 11. MDPL'S FINANCIAL CONTRIBUTION.
The City and MDPL agree and acknowledge that a vital component of MDPL's mission
statement with respect to this Agreement is to use its best efforts to obtain public/private
funding contributions for the continuous operation, management, maintenance and
programming of the Premises in accordance with the highest levels of service and the
first-class standards set forth herein. Accordingly, MDPL hereby represents that it shall
use its best efforts with respect to undertaking a coherent and consistent fund-raising
effort to fund the management, operation, and maintenance of the Premises.
MDPL further acknowledges and understands that the City shall in no way be obligated
to supplement and/or otherwise contribute any funds for MDPL's management,
operation, maintenance, and programming of the Premises.
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SECTION 12. ASSIGNMENT.
MDPL 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
MDPL shall at all times, throughout the Term hereof, remain anot-for-profit corporation.
In the event that MDPL ceases to be anot-for-profit corporation, or the City, through the
City Manager, in his/her reasonable discretion and judgment, determines that the
Premises are not being used in accordance with the objectives and approved uses in
Section 4, then this Agreement shall be subject to termination upon thirty (30) days
written notice by the City Manager to MDPL.
SECTION 13. USE OF THE PARK IS PRIMARY.
Lummus Park is for the use of the public. The public's right to use Lummus Park shall
not be substantially and/or materially infringed upon by any act of MDPL. MDPL shall
use best efforts to assure that the uses and activities conducted by MDPL on the
Premises shall not substantially and/or materially interfere with the public's right to use
Lummus Park.
SECTION 14. PERMITS, LICENSES, COMPLIANCE WITH LAWS.
MDPL agrees to obtain and pay for all permits and licenses, as may be necessary and
required by the City (and/or other applicable regulatory bodies),for the conduct of its
uses and activities on the Premises. MDPL 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.
MDPL 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.
MDPL agrees to, and shall pay before delinquency, all taxes and
assessments of any kind assessed or levied, whether upon MDPL or the
Premises, by reason of this Agreement or by reason of any use(s) and/or
activity(ies) of MDPL upon or in connection with the Premises. The parties
agree that MDPL'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, taxes are assessed by the
Property Tax Appraiser, MDPL shall be solely responsible for payment of
same.
Zo
SECTION 16. SIGNAGE/NAMING RIGHTS.
16.1 Generally.
MDPL 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.
All signage (whether exterior or interior) shall be subject to the City
Manager's prior written approval as to size, location, materials, and
aesthetics. MDPL 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).
16.2 Naming Rights.
The City reserves the name-in-title rights (i.e. the right to name) in
Lummus Park and all or any portion of the Premises (including, without
limitation, all or any exterior or interior portions thereof), and all revenue(s)
that may be derived therefrom.
MDPL 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 Premises; provided,
however, that MDPL shall not use the City's name and/or logo in any of
the aforestated medias and/or materials issued by MDPL, or in any other
manner (whether express or implied), for the purpose of soliciting funding,
donations, and/or other monies for the Premises (other than to identify the
location of the Premises as being situated within the City of Miami Beach),
without the express written consent and/or permission of the City
Manager.
SECTION 17. FORCE MAJEURE.
17.1 The performance of any act by MDPL 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
MDPL'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 MDPL 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
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soon as practicable, to compel MDPL to utilize insurance proceeds to
repair the damaged property, and the Term of the Agreement shall be
abated until such time as MDPL may re-open the Premises after
restoration or repair of the damaged property; or (ii) elect not to have
MDPL 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)
MDPL must give written notice to the City Manager, within sixty (60) days
receipt of the City's notice of election of option (i), that MDPL is willing to
undertake the repair of the damage with its own or other available funds;
(2) within twelve (12) months following such notice, MDPL 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 MDPL, 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
MDPL 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) MDPL 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 MDPL's funding capability.
SECTION 18. INSPECTION.
MDPL 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/her 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. MDPL agrees to immediately undertake the correction of any deficiency cited
by such inspectors.
The City Manager and/or his/her 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 MDPL'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/her authorized
representatives may enter upon the Premises, without notice to MDPL, 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 MDPL from its obligation to keep the
Premises in repair. If City makes any emergency repairs pursuant to the terms hereof,
MDPL shall reimburse the City for all such repairs upon receipt by MDPL of City's notice
of repairs made and statement and proof of costs incurred.
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SECTION 19. WAIVER OF INTERFERENCE.
MDPL 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
MDPL from any obligation hereunder.
SECTION 20. INSURANCE REQUIREMENTS.
20.1 MDPL 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. Fire Insurance shall be the responsibility of MDPL.
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. MDPL 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 MDPL 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 MDPL
to the City, plus ten percent (10%) of the amount of premiums paid to
compensate City for its administrative costs. If MDPL 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.
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20.2 Adjustment 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, MDPL 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 MDPL 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.
20.3 Subrogation.
The terms of insurance policies referred to in Section 20 shall preclude
subrogation claims against MDPL, the City and their respective officers,
agents, servants, and employees.
SECTION 21. INDEMNIFICATION.
21.1 MDPL 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 MDPL, and/or its officers, agents, servants, employees,
contractors, or volunteers under this Agreement.
21.2 In addition, MDPL 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 MDPL not included in Section 21.1 and for which the
City, its officers, agents, servants or employees are alleged to be 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, MDPL. shall also require any and all users of the Premises
(including, without limitation, exhibitors, owners of art work and/or other
works [including, without limitation, historical materials, artifacts, and
archives], and third party renters (except the City, etc.) to indemnify,
defend and hold the City harmless. This indemnity provision shall be
included in either MDPL's form agreements with any of the above users or
by separate written instrument duly executed between MDPL and the
user.
21.4 The provisions of this Section 21 shall survive the termination and/or
expiration of this Agreement.
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SECTION 22. NO LIENS.
MDPL 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, MDPL 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 MDPL.
SECTION 23. MDPL EMPLOYEES AND MANAGERS.
23.1 The City and MDPL recognize that in the performance of this Agreement,
it shall be necessary for MDPL to retain qualified individuals to effectuate
and optimize MDPL'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
MDPL 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, MDPL,
and/or any employees, agents, independent contractors, volunteers,
and/or others, acting under the authority and/or with the permission of
MDPL 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.
MDPL 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 MDPL shall result in automatic termination of this
Agreement.
23.2 Contract Administration.
a. The City's contract administrator shall be the City Manager and/or
his/her authorized designee. MDPL 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 MDPL on all
matters relating to this Agreement;
(ii) shall be responsible for ensuring that any information
supplied by MDPL is property distributed to the appropriate
City departments; and
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(iii) shall be responsible for contract compliance by MDPL
(including, without limitation, MDPL's activities,
programming, operations, management, and maintenance of
the Premises).
c. MDPL shall name an individual who shall serve as the general
manager of the Premises and who:
(i) shall be the liaison between the City and MDPL on all
matters relating to this Agreement;
(ii) shall be responsible for the day-to-day management and
supervision of the Premises; and
(iii) shall be responsible for providing supervision and direction
to MDPL and/or its employees, agents, contractors,
volunteers, and/or others.
SECTION 24. NO IMPROPER USE.
MDPL 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
MDPL become aware of any such use by any person, it shall take corrective action in a
reasonable amount of time to stop such use. MDPL 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.
MDPL 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.
MDPL 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 MDPL 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, MDPL shall
have no liability in the event of the willful misconduct or gross negligence of the City, its
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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 MDPL, 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, but in no event shall
any cure period exceed a period of ninety (90) days from the date of the initial written
notice of default), 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 MDPL 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 and used by MDPL 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 MDPL 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 MDPL, 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
MDPL, in such manner as the City may see fit.
If the Premises are not surrendered at the end of the Term as provided in
this subsection, MDPL shall make good to the City all damages which the
City shall suffer by reason thereof, and shall indemnify the City against all
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claims made by a succeeding occupant (if any), so far as such delay is
occasioned by the failure of MDPL to surrender the Premises as and when
herein required.
28.2 MDPL 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 MDPL 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, maintain
and program the Premises in accordance with the objectives and approved uses and/or
in accordance with the first-class standards set forth herein, then the City may, at its
sole option and discretion: (i) supplement any lack or loss of funds in order to allow
MDPL to continue to manage and operate the Premises; or (ii) terminate this Agreement
pursuant to Section 27 hereof.
SECTION 30. NOTICES.
All notices from the City to MDPL shall be deemed duly served if mailed by registered or
certified mail to MDPL at the following address:
Miami Design Preservation League, Inc.
Attention: Executive Director
P.O. Box 190180
Miami Beach, FL 33119-0180
All notices from MDPL to the City shall be deemed duly served if mailed to:
City of Miami Beach
Attention: City Manager
1700 Convention Center Drive
Miami Beach, Florida 33139
with copies to:
City of Miami Beach
Attention: Director of Real Estate, Housing
and Community Development
1700 Convention Center Drive
Miami Beach, Florida 33139
MDPL 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.
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SECTION 31. NO DISCRIMINATION.
MDPL 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 MDPL 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 MDPL 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 MDPL 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,
29
between them other than as expressly set forth herein and in such
attachments thereto or as may be expressly contained in any
enforceable 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 MDPL. 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 MDPL including, but not limited to, the
times within which MDPL 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.
MDPL acknowledges, represents and confirms that it is an independent
contractor in the performance of all activities, functions, duties and
obligations pursuant to this Agreement.
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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. 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 MDPL; that this Agreement is a
management agreement and not a lease, and that MDPL's right to
operate, manage, and maintain the Premises shall continue only so long
as MDPL complies with the undertakings, provisions, agreements,
stipulations and conditions of this Agreement.
Accordingly, MDPL hereby agrees and acknowledges that in the event of
termination of this Agreement, whether due to a default by MDPL or
otherwise, MDPL 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 MDPL from the Premises as if
this were a tenancy under Chapter 83, Florida Statutes, nor shall MDPL
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.
34.10 City Representation on MDPL Board and Committees.
The City's representation on MDPL's Board and any MDPL Committee
shall be a number proportionate to the total number of members of the
Board and of each committee, but in no event less than thirty percent
(30%). The City's members shall all be voting members of the MDPL
Board and each respective committee.
34.11 Limitation of Liability.
The City desires to enter into this Agreement placing the management and
operation of the Premises in the hands of a private (albeit not-for-profit)
entity only if so doing the City can place a limit on its liability for any cause
of action for breach of this Agreement, so that its liability for any such
31
breach never exceeds the sum of Ten and 00/100 Dollars. MDPL hereby
expresses its willingness to enter into this Agreement with a Ten and
00/100 Dollar limitation on recovery for any action for breach of contract.
Accordingly, and in consideration of the separate consideration of Ten and
00/100 Dollars, the receipt of which is hereby acknowledged, the City shall
not be liable to MDPL for damages in an amount in excess of Ten and
00/100 Dollars, for any action for breach of contract arising out of the
performance or non-performance of any obligations imposed upon the City
by this Agreement. Nothing contained in this paragraph or elsewhere in
this Agreement is in any way intended to be a waiver of limitation placed
upon the City's liability as set forth in Florida Statutes, Section 768.28.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
F:~attoWGURWGREEMENl1MDPL Management Agreement (12-1-09).doc
32
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:
Robert Parcher, City Clerk
Attest:
John Bachay, Secretary
CITY OF MIAMI BEACH
Deede Weithorn, Vice-Mayor
MIAMI DESIGN PRESERVATION
LEAGUE, INC.
Barry Chase, Acting Chairperson
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
v ~ ~~
m to
33
STATE OF FLORIDA )
SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of
2009, by Mayor and ,City Clerk, or their
designees respectively, on behalf of the City of Miami Beach, 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.
2009.
WITNESS my hand and official seal, this day of ,
Notary Public, State of Florida at Large
Commission No.:
My Commission Expires:
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE )
SS:
The foregoing instrument was acknowledged before me this day of
2009, by on behalf of the Miami
Design Preservation League, 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.
2009.
WITNESS my hand and official seal, this
Notary Public, State of Florida at Large
Commission No.:
My Commission Expires:
34
day of ,