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Interim Agreement w/ Bass Museum q /2���� aojl- a s e7 _ MIANI1BEA�H City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov i OFFICE OF THE CITY MANAGER Tel: 305.673.7010, Fax: 305.673.7782 September 30, 2011 George Lindemann, President Friends of the Bass Museum, Inc., and The Bass Museum of Art, Chairperson 2121 Park Avenue Miami Beach, Florida 33139 Re: Interim Agreement between the City of Miami Beach, Florida (City) and the f Friends of the Bass Museum, Inc. (Friends) for the Continued Management and Operation of the Bass Museum of Art from October 1, 2011 to I September 30, 2012 Dear Mr. Lindemann. The foregoing Letter Agreement shall confirm the understanding between the City and the Friends, with regard to the Friends' continuing to provide certain management and t operational responsibilities at the Bass Museum of Art, located at 2121 Park Avenue, Miami Beach, Florida (hereinafter the Bass Museum or the Museum), for a term commencing on October 1, 2011 (Commencement Date), and terminating on September 30, 2012 (the Term). Throughout the Term, the Friends agree to provide the following services in support of the ongoing management and operation of the Bass Museum (hereinafter, such services are collectively referred to as the Services): • Administer, operate, and maintain the John and Johanna Bass Collection (the Collection), as contemplated pursuant to the terms and conditions of that certain agreement between the City and John and Johanna Bass, dated July 8, 1963, as amended and restated on March 10, 2010, and approval pursuant to the July 8, 1963 agreement between the City and John and Johanna Bass, and the March 10, 2010 amended and restated agreement between the City and Dennis Alan Richard (as Successor in Interest to John and Johanna Bass, as well as any ,<< amendments thereto, is hereinafter referred to as the Bass Agreement).. • Develop and implement exhibitions, programs, and activities which support and promote the goals and priorities agreed upon by the City and the Friends (including, without limitation, those which are consistent with and continue to I further the purposes set forth in the Bass Agreement). i i I I 1 • Provide certain day -to -day administrative services in support of the Collection, as well as any and all other art work(s) in the Museum, and the aforestated activities, to ensure that the Museum continues to be operated, managed, and maintained in a first -class manner, consistent with similar world -class public museums of comparable size and budget to the Bass Museum and including, without limitation, acquisition of services, equipment, and supplies; day -to -day housekeeping and maintenance; record - keeping; collections and billings; and similar services. The Friends represents to City that, prior to the commencement of the Term, its authorized representatives have inspected the Bass Museum building; accordingly, the Friends hereby accept the facility `AS IS, WHERE - IS, AND WITH ALL FAULTS" existing as of the Commencement Date. In the event that any claim or controversy arises with respect to the Agreement, the Friends and the City hereby knowingly and voluntarily waive their rights to assert any argument or defense alleging inadequate or insufficient consideration. Attached as Exhibit "A" hereto is the Museum's Operating Budget for the Term (the Operating Budget or Budget), which the City and Friends have mutually reviewed and approved. The City and Friends hereby agree and acknowledge that said Budget is adequate for the provision of the Services. The Friends shall not exceed the Operating Budget, which has been established at $ 623,391. The Friends shall use best efforts to undertake, deliver and perform the Services, in accordance with, and in the amount provided by, the Operating Budget. The Friends agree to notify the City Manager within ten (10) days of any significant change or variance in the bottom line numbers in the Operating Budget, and any material increase in any identified cost(s) and /or expense(s) from that/those provided for in the Operating Budget. Notwithstanding the preceding, or anything contained in this Agreement, the Friends shall not exceed, commit, or contract to expend any sum in excess of the aggregate amount allowed in the Operating Budget without first obtaining the prior written consent of the City Manager, which consent, if granted at all, shall be in the Manager's sole and reasonable judgment and discretion. The Friends shall pay all items of expense related to the Services (and subject to the amount indicated in the approved Operating Budget) from JP Morgan (General Operating Account) #849186630. In addition to payment of any operating expenses related to the provision of the Services, any and all revenues generated by the Friends' (pursuant to the duties set forth herein) shall also be deposited into this account. Deposits and /or withdrawals must prepared by the Assistant Director and confirmed by the Executive Director. All checks exceeding five thousand dollars ($5,000) require two signatures. I Authorized signatories on the account are as follows: Executive Director; • President of the Board; I 2 i • Vice - President of the Board; , • Secretary of the Board. The Friends agree to keep and maintain an office in the Museum devoted exclusively to its performance /provision of the Services. The Friends shall keep and maintain all records related to, and in support of, the Services at such office. Any financial records shall be maintained. in accordance with generally accepted accounting principles. The City Manager or his authorized designees shall have the right, at any time during the Term, to audit and inspect any and all Friends' records, upon reasonable written or verbal notice to the Friends, and during the Museum's normal hours of operation. The City and the Friends shall each appoint a contract administrator who shall monitor the parties' compliance with the terms of this Agreement and, in the case of the Friends, who shall serve as the point person for the City with regard to the Services. Unless otherwise notified, the contract administrators for each party are as follows: ` For the City: Gary Farmer, Cultural Affairs Program Manager Tourism and Cultural Development Department City of Miami Beach 1755 Meridian Avenue Miami Beach, Florida 33139 305 -673 -7577 For the Friends: Silvia Karman Cubina Executive Director /Chief Curator Friends of the Bass Museum 2121 Park Avenue Miami Beach, Florida 33139 305 -673 -7530 The Friends agree to defend, indemnify and hold harmless the City, and its officials, directors, officers, employees,. agents, contractors, servants, successors and assigns against any claims, causes of actions, costs, expenses, (including reasonable attorney's fees) liabilities, or damages arising out of or in connection with any negligent act or omission, or intentional misconduct. on the part of the Friends or any of its officials, directors, officers, employees, agents, contractors, servants, successors and assigns, in the performance of its obligations under this Agreement and /or from the Services. Additionally, and notwithstanding the indemnification /hold harmless obligations in the preceding paragraph, or any other term or condition of this Agreement, the Friends shall defend, indemnify and hold harmless the City, its officials, directors, officers, ` employees, agents, contractors, servants, successors and assigns, against any claims, causes of actions, costs, expenses (including reasonable attorney's fees), liabilities, or damages arising out of or in connection with any claim, controversy or cause of action brought against the City of Miami Beach (and including its officers, employees, agents, and contractors) alleging any breach by the,City of the Bass Agreement as a result of 3 1 j, the execution of this letter agreement between the City and Friends. i The indemnification and hold harmless requirements in:the two preceding paragraphs shall survive the termination or expiration of this Agreement. Notwithstanding this indemnification, and as a further condition, the Friends shall, at its sole cost and expense, maintain in full force and effect throughout the Term of the Agreement following insurance I Commercial General Liability Insurance, on an occurrence form, in the amount of Two Million ($2,000,000) Dollars, per occurrence, for bodily injury, death, property damage, and personal injury. This policy must name the City of Miami Beach, Florida, as additional insured. I Workers' Compensation and Employers' Liability coverage, in accordance with Florida statutory requirements. All -Risks property and casualty insurance, written at a minimum of 80% of replacement cost value and with replacement cost endorsement, covering all of j Friends' personal property in the Museum and all improvements installed in the j Museum by or on behalf of the Friends. The Friends shall provide proof of the aforestated coverages to the City Manager, within thirty (30) days of execution of this Letter Agreement. It is understood and agreed that any coverage provided by the Friends is primary to any insurance or self - insurance program the City has for the Museum, and that there shall be no right of recovery or subrogation against the City. All policies must be issued by companies authorized to do business in the State of Florida and assigned a rating of B +VI or better, per Best's Key Rating Guide, latest edition. This Letter Agreement may be terminated by the City Manager, for cause, in the event of a breach by the Friends' of any term(s) and /or condition(s) set forth herein and the Friends' failure to satisfactorily cure same within seven (7) days of written notice of such breach by the City Manager or his designee; or by either party, for convenience (and without cause), upon fifteen (15) days prior written notice to the other party. All written notices and communications required or permitted hereunder may be delivered personally to the representatives of the Friends and the City listed below or may be mailed by registered mail, postage prepaid (or airmailed if addressed to an address outside of the city of dispatch). Until changed by notice in writing, all such notices and communications shall be addressed as follows: i I I i k I i 4 i TO FRIENDS: Friends of the Bass Museum, Inc. Attn: George .Lindemann President 2121 Park Avenue j Miami Beach, Florida 33139 (305) 673 -7530 TO CITY: City of Miami Beach Attn: Max Sklar Cultural Arts & Tourism Dev. Director 1700 Convention Center Drive f Miami Beach, Florida 33139 (305) 673 -7000, Ext. 6116 Notices hereunder shall be effective: If delivered personally, on delivery; if mailed to an address in the city of dispatch, on the day following the date mailed; and if mailed to an I address outside the city of dispatch on the seventh day following the date mailed. 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 1itigation 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 FRIENDS 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. The Friends hereby represents, warrants and covenants to the City: .I i (i) that it has the full legal right, power and authority to enter into this Agreement and to grant the rights and perform the obligations herein, and that no third party consent or.approval is required to grant. such rights or perform such obligations hereunder; (ii) that this Agreement has been duly executed and delivered by the President of the Friends, and attested to by the Secretary, and constitutes a valid and binding obligation of the Friends, enforceable in accordance with its terms; and 1 (iii) that the Friends will comply with all laws applicable to its management of 1 the Museum, as set forth , in this Agreement; provided that the Friends will not be required to undertake any compliance activity, or have any liability under this Agreement, if such activity requires any capital expenditure beyond the approved Operating Budget. . 5 i i 1 i Neither party may assign this Agreement. Neither this Agreement, nor any of its terms, may be changed, modified, waived, or terminated except by an instrument in writing, signed by an authorized representative, which shall be the City Manager (on behalf of the City), and the President of the Friends (on behalf of the Friends). The City and Friends acknowledge and agree that they are not joint venturers, partners, or joint owners with respect of the Bass Museum and /or with respect to this Agreement i and /or the Services. Nothing contained in this Agreement shall be construed as creating a partnership, joint venture or similar relationship between the City and the Friends. Any employees at the Bass Museum who are City of Miami Beach employees shall continue to remain City employees throughout the Term (unless otherwise terminated by the. City), and shall remain under the supervision, direction and control of the City. Additionally, for purposes of this Agreement (or otherwise) no officer, director, employee, agent, or contractor of the Friends shall be deemed to be an agent or employee of the City, and shall not attain any rights or benefits under the Civil Service or Pension Ordinance of the City, or any right generally afforded Classified or Unclassified employees or be deemed entitled to Florida Worker's Compensation benefits as an employee of the City, or accumulation of sick or annual leave. 1 i i (THE BALANCE OF THIS PAGE LEFT INTENTIONALLY BLANK) i 4 I . i 6 i IN C F MIAMI BEACH, FLORIDA CORP ORATED: or . G nzale di �an ATTEST to ( i Date Attest: FRIENDS OF THE B SS MUSEUM, INC. i L ' I Secretary George Linde nn, esident 0/ � Date T:IAGENDA\201119- 27- 111Bass Letter Agreement Sept 2011.doc 4 APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION 7,2- 40Y ttomey ate i r . r i 7