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2014-28554 Resoi RESOLUTION NO. 201428554 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AN AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND THE MIAMI DESIGN PRESERVATION LEAGUE, INC., FOR THE INSTALLATION, TRANSFER, AND MAINTENANCE OF THE BARBARA BAER CAPITMAN MEMORIAL, AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE AGREEMENT, SUBJECT TO SUCH FURTHER MODIFICATIONS AS THE CITY MANAGER AND CITY ATTORNEY CONCLUDE ARE IN THE BEST INTERESTS OF THE CITY. WHEREAS, in an April 11, 2011 correspondence sent to the attention of Mayor Matti Herrera Bower, a request was made by the Miami Design Preservation League (MDPL) to place a memorial in Lummus Park recognizing Barbara Capitman's many contributions and accomplishments with respect to historic preservation in the City of Miami Beach; and WHEREAS, the item was subsequently referred by the City Commission to the Neighborhood/Community Affairs Committee at the City Commission meeting of January 11, 2012; and WHEREAS, as required by City Code, the placement of the memorial honoring Ms. Capitman was discussed at the February 27, 2012 Committee meeting; and WHEREAS, prior to taking action on MDPL's request to erect the memorial honoring Ms. Capitman, the Committee was advised of the existing moratorium on naming requests; so being advised, it recommended exempting the proposed memorial from said moratorium (which was initially recommended by the Committee at its January 11, 2011 meeting, pending the adoption of guidelines to limit these requests in the future); and WHEREAS, at its February 27, 2012, the Committee unanimously recommended the memorial in honor of Ms. Capitman; and WHEREAS, at the March 21, 2012 meeting, the City Commission lifted the moratorium on naming requests, accepted the recommendation of the Neighborhood/Community Affairs Committee to erect a memorial honoring Barbara Capitman in Lummus Park, and as required pursuant to Section 82-504 of the City Code scheduled a public hearing to be held at the City Commission meeting of April 11, 2012; and WHEREAS, at the March 21, 2012 Commission Meeting the City Commission further approved a request by MDPL to modify the location of the proposed memorial, from the 1100 block, to the 1300 block of Lummus Park; and WHEREAS, following a duly noticed meeting held on April 11, 2012, the Mayor and City Commission approved Resolution 2012-27889, which accepted the Neighborhood/Community Affairs Committee's recommendation and approved the establishment of the aforementioned memorial honoring Ms. Capitman. WHEREAS, the City Manager and City Attorney have recommended that an agreement be entered into that formalizes the understanding between MDPL and the City, and that the City Commission approve the agreement and authorize the Mayro and City Clerk to execute it, subject to such further modifications as the City Manager and City Attorney conclude are in the best interests of the City. NOW, THEREFORE, BE IT DULY RESOLVED THAT THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, approve the agreement between MDPL and the City, and authorize the Mayor and City Clerk to execute it, subject to such further modifications as the City Manager and City Attorney conclude are in the best interests of the City. PASSED and ADOPTED this a3 day of April, 2014. ATTEST: ('•. �� q CITY &ERK P , MAYOR APPROVED AS TO FORM & LANGUAGE ��: � •:IN���'�� � � & FOR EXECUTION J C. 1. +e. CITY ATT E DATE 7� F:\ATTO\HELG\Agreements\Capitman Memorial\Capitman Memorial-Resolution.docx COMMISSION ITEM SUMMARY Condensed Title: A resolution approving an agreement to implement the memorial honoring Barbara Capitman, to be installed in the 1300 block of Lummus Park, previously approved by the City Commission by Resolution 2012-27889, on April 11, 2012. Key Intended Outcome Supported: Increase community satisfaction with City government Supporting Data(Surveys, Environmental Scan, etc.): Miami Beach Customer Survey indicates 5% of residents and 68% of businesses rated Miami Beach city government as excellent or good in meeting their needs and expectations. Issue: Shall the Mayor and City Commission adopt the resolution? Item Summary/Recommendation: In an April 11, 2011 correspondence sent to Mayor Matti Herrera Bower, a request was made'by the Miami Design Preservation League (MDPL) to place a memorial in Lummus Park recognizing Barbara Capitman's many contributions and accomplishments. The item was referred to the Neighborhood/Community Affairs Committee by the Commission at the January 11, 2012 meeting. The memorial request was discussed at the Committee's February 27, 2012 meeting. Prior to taking action on the request, the Committee recommended exempting the proposed memorial from the moratorium on naming requests that was recommended by the Neighborhood/Community Affairs Committee at its January 11, 2011 meeting, pending the adoption of guidelines to limit these requests in the future. At the February 27, 2012, NCAC meeting, the members unanimously recommended approving the memorial in honor of Ms. Capitman. At its March 21, 2012 meeting the City Commission approved a resolution lifting the moratorium on naming request, accepted the recommendation of the Neighborhood/Community Affairs Committee to erect a memorial honoring Barbara Capitman in Lummus Park and set the required public hearing to be held at the City Commission meeting of April 11, 2012. It should also be noted that at the March 21, 2012 Commission meeting the MDPL's request to modify the location of the memorial honoring Barbara Capitman from the 1100 block to the 1300 block of Lummus was noted in the public record. The City Commission approved the memorial via Resolution 2012-27889. This agreement confirms the agreement between MDPL and the City, including MDPL's obligation to fund all costs associated with the memorial. Advisory Board Recommendation: Financial Information: Source of Amount Account Funds: 1 2 3 OBPI Total Financial Impact Summary: MDPL has agreed to fund all costs associated with the memorial. City Clerk's Office Legislative Tracking: John Rebar, Parks & Recreation Director Sign-Offs: Department Director Assists City Manager City Manager 1 TA NDA\2014\April\Capitman Memorial Bust-Summary.d AGENDA ITEM C 7 ' - -- MIAMIBEACH DATE �-c�3-1 MIA.MIBEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139,www.miamibeachfl.gov COMMISSION MEMORANDUM TO: Mayor Philip Levine and Members of the Cit Commission FROM: Jimmy L. Morales, City Manager Jose Smith, City Attorney DATE: April 23, 2014 SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AN AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND THE MIAMI DESIGN PRESERVATION LEAGUE, INC., FOR THE INSTALLATION, TRANSFER, AND MAINTENANCE OF THE BARBARA BAER CAPITMAN MEMORIAL, AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE AGREEMENT, SUBJECT TO SUCH FURTHER MODIFICATIONS AS THE CITY MANAGER AND CITY ATTORNEY CONCLUDE ARE IN THE BEST INTERESTS OF THE CITY. ADMINISTRATION AND CITY ATTORNEY RECOMMENDATION Adopt the resolution. BACKGROUND The Miami Design Preservation League ("MDPL") has sought to honor Barbara Baer Capitman, a founder of the Art Deco movement in Miami Beach, by placing a Memorial in Lummus Park. The City Commission, by Resolution 2012-27889, has approved this request. See attached Resolution and accompanying Commission Memorandum. The agreement has been negotiated to provide for the installation, transfer to the City, and ongoing maintenance of the Memorial and surrounding property, all of which is at the expense of MDPL. CONCLUSION Based on the above, it is recommended that the City Commission adopt the resolution. JLM/JS/MT/ GMH TAAGENDA\2014Wpril\Capitman Memorial mem.docx AGREEMENT BETWEEN CITY OF MIAMI BEACH AND MIAMI DESIGN PRESERVATION LEAGUE, INC. FOR THE INSTALLATION, TRANSFER, AND MAINTENANCE OF THE BARBARA BAER CAPITMAN MEMORIAL This is an Agreement, made and entered into this_day of March, 2014, by and between the City of Miami Beach, a municipal corporation, existing under the State of Florida (hereinafter referred to as the "City") and Miami Design Preservation League, Inc., a non-profit corporation existing pursuant to the laws of the State of Florida (hereinafter referred to as the "MDPL"). WITNESSETH WHEREAS, City is the owner of property located in Lummus Park, at the corner of 131h Street and Ocean Drive, (hereinafter referred to as "the Property"), a site map of which is attached hereto as Exhibit "A"; and WHEREAS, MDPL has requested the consent of the City for MDPL to install and finance the maintenance of a memorial to Barbara Baer Capitman on the Property (hereinafter referred to as the "Memorial" or the"Project"); and WHEREAS, the City Commission of the City approved the Memorial and the related site plans, attached hereto as Exhibit "B," on April 11, 2012, and the Art in Public Places Committee of the City approved the Memorial on May 15, 2012. NOW THEREFORE, in consideration of the foregoing Recitals and of the mutual covenants hereinafter set forth, it is agreed as follows: 1. RECITALS. The foregoing Recitals are true and form the basis of this Agreement. This Agreement, in the event of ambiguity, shall be interpreted so as to carry out the purposes set forth in the Recitals. 2. INSTALLATION (a) Obligation to Install MDPL shall pay for and install the Memorial, as set forth on the site plan attached hereto as Exhibit "B" ("Site Plan"), all at MDPL's sole cost and expense and without any cost or expense to the City. City hereby consents to the Site Plan; provided, however, that the detailed construction plans shall be submitted to the City Building Department and Public Works Department, for the approvals and permits for the installation of the improvements contained therein, by June 30, 2014, and construction shall be completed by November 30, 2014. The City Manager shall have authority to grant reasonable extensions of these dates. (b) Payment and Performance Bond, Insurance MDPL shall submit to City for its prior approval the construction contract between MDPL and the contractor responsible for installing the Memorial (hereinafter referred to as "the Contractor"). In the event MDPL uses more than one contractor, each such contract shall be submitted for approval. Each construction contract shall require, at a minimum, the following: (1) Bonds Payment and performance bonds, which MDPL shall submit to the City for its prior approval, in the amount of 100% of the construction contract. (2) Insurance It is the duty of MDPL to ensure that all contractors engaged for the installation of the Memorial obtain and submit proof of adequate insurance coverage. Each contractor used must submit original certificates of insurance to the City's Risk Manager evidencing the necessary coverages. No contractor can begin work on City property until the insurance is approved by the City's Risk Manager. All policies must be maintained in full force and effect during the duration of the construction contract. The insurance coverages required are as follows: 1. Comprehensive general liability in the amount of $500,000 per occurrence. This policy must be on an "occurrence" form. 2. The City of Miami Beach must be named as an additional insured on the comprehensive general liability. 3. Automobile liability in the amount of$300,000 per occurrence. 4. Workers' compensation coverage as required by Florida Statutes. 5. The City must receive thirty (30) days advance, written, notice of any cancellation or change in coverage of the above policies. 6. All policies must be issued by companies licensed and admitted that are rated A:X or better per Best's Rating guide, latest edition. (3) Indemnification MDPL hereby agrees to indemnify and hold the City and its officers, agents, employees, and representatives harmless from liability for damage or claims for damage for personal injury, including wrongful death up to the amount of$1,000,000.00 for each occurrence, and claims for property damage up to the amount of$1,000,000.00 for each occurrence, with an aggregate of $1,000,000.00, which may arise from the direct or indirect operations of MDPL, its Contractor, or those of any subcontractor, agent, employee, or other person or entity acting on MDPL's behalf, which relate in any way to the installation of the Memorial. MDPL agrees to and shall defend at its sole cost and expense, the City and its respective officers, agents, employees, and representatives from actions for damages caused, or alleged to have been caused, by reason of MDPL's activities in connection with the Memorial site regardless of whether the damage is alleged to have been caused in part by a party indemnified hereunder. This indemnification agreement applies to all damages and claims for damages, including without limitation, interest, costs and attorneys' fees, suffered or alleged to have been suffered by reason of the operations referred to herein, regardless of whether or not the City approved the plans or specifications or both for the site and regardless of whether or not such claim is groundless or not made in good faith. Page 2 of 6 MDPL further hereby agrees as follows: 1. To indemnify and hold harmless and forever release and discharge the City, the City's Building and Public Works Departments, and the City's officers, employees, personnel and agents, from any and all liability, damages or losses arising out of, or in connection with the Project, or its approval of the Project, including the costs of any suits, attorney's fees and other expenses in connection therewith, including trial and appeals therefrom. 2. To defend the City with counsel of its own choosing, pay or settle any liabilities and claims against the City, and the City's officers, employees, personnel and agents arising out of, or in connection with, the approval of the Project. 3. MDPL affirmatively disclaims and waives all rights, if any, to hold the City, the City's Building and Public Works Departments, and the City's agencies, its officers, employees, personnel and agents, to any liability, including damages, caused in the event that the Project is stopped or delayed for any reason. 4. MDPL acknowledges that the acceptance of the building permit to construct the Project is a complete estoppel to it, its heirs, successors and assigns as to any rights, real, apparent or otherwise, that they may have to challenge the efficacy of any conditions hereof. (c) Name and Signage The Memorial shall always be known as and referred to as the "Barbara Baer Capitman Memorial" and, as set forth on the site plan attached hereto as Exhibit "B", shall include the language: Front of Plinth: "Barbara Baer Capitman— 1920-1990—Writer, Artist, Preservationist" Rear of Plinth: "She led the crusade to establish the Miami Beach Art Deco District. Sculpture by her mother, Myrtle Bachrach Baer c. 1941" Inlaid on plaza in front of Plinth: "Founder of the Miami Design Preservation League 1976" 3. TRANSFER Upon the completed installation of the Memorial in accordance with the provisions set forth above, MDPL shall donate the Memorial to the City, free and clear of any costs associated with the design, installation, and maintenance of the Memorial. Page 3 of 6 4. MAINTENANCE (a) Establishment of BBC Memorial Account MDPL shall deposit, on or before the completion of the Memorial, the sum of$30,000.00 into the Barbara Baer Capitman Memorial Account (hereinafter referred to as the "Account"), an investment account maintained by MDPL. Upon creation of the Account, the MDPL Board of Directors shall adopt a resolution, the proposed language of which is attached hereto as Exhibit "C", which will provide that funds included in the Account, including any interest earned, shall be used exclusively for the maintenance and repair of the Memorial. MDPL shall contract, on an annual or longer basis, with a third party maintenance company to maintain the Memorial in accordance with the maintenance standards attached hereto as Exhibit "D." (b) Permanent Nature of Memorial City hereby agrees, and the resolution set forth as Exhibit "C" affirms, that the Property shall continue to be used in the future as a Memorial to Barbara Baer Capitman so long as the Account established in Exhibit "C" contains sufficient principal to maintain the Property in accordance with the maintenance standards set forth in Exhibit "D." 5. ARBITRATION Any controversies or claims arising out of, or relating to this Agreement, or the breach thereof, shall be settled by arbitration in accordance with the rules of the American Arbitration Association and judgment upon the award rendered by the arbitrators may be entered in any Court having jurisdiction. However, the City reserves the right to remove the Memorial if MDPL fails to maintain the Memorial in accordance with the maintenance standards set forth in Exhibit D. Prior to initiating any removal action, the City will issue a "Failure to Maintain" notice, after which MDPL will have thirty (30) days to remedy any maintenance deficiencies identified by the City. Upon reasonable request, the City may grant an extension of the thirty (30) day remedy period. If the Memorial is removed, MDPL shall restore the Property to its current condition and shall have the right to repossess the Memorial. 6. NOTICES All "Notices" to be given by either party to the other shall be in writing and must be either. delivered or mailed by registered or certified mail, return receipt requested, addressed as follows: To the MDPL: MIAMI DESIGN PRESERVATION LEAGUE PO Box 190180 Miami Beach, Florida 33119 With a copy to: Neisen Kasdin, Esq. Akerman LLP One Southeast Third Avenue 25th Floor Miami, FL 33131 Page 4 of 6 To the City: City Manager 1700 Convention Center Drive Miami Beach, Florida 33139 With a copy to: City Attorney 1700 Convention Center Drive Miami Beach, Florida 33139 7. MISCELLANE®US (a) Complete Agreement This agreement, when executed, together with all Exhibits attached hereto as provided for by this Agreement, shall constitute the entire Agreement between both parties and this Agreement may not be amended, modified or terminated except by a writing signed by the parties hereto. (b) Severability In the event that any clause or provision of this Agreement or any part thereof shall be declared invalid, void or unenforceable by any court having jurisdiction, suc h invalidity shall not affect the validity or enforceability of the remaining portions of this Agreement unless the result would be manifestly inequitable or unconscionable. (c) Further Documents The parties shall execute and deliver all documents and perform all further acts that may be reasonably necessary to effectuate the provisions of this Agreement. (d) Independent Parties Nothing contained in this Agreement shall be deemed or construed for any purpose to establish, between City and MDPL, a partnership or joint venture, a principal agent relationship, or any relationship other than property owner and independent contractor. (e) Successors and Assigns This Agreement shall be binding upon the assigns and successors of the parties hereto; provided that MDPL shall not assign any of its rights or responsibilities hereunder without the prior consent of the City Commission. This Agreement shall be construed in accordance with the laws of the State of Florida. Page 5 of 6 . i IN WITNESS WHEREOF, the parties have set their hands and seals at the place and on the date first above written. City of Miami Beach, Florida Miami Design Preservation League, Inc. By By Mayor President day of 52014 day of 52014 ATTEST: Witnesses: City Clerk Signature Print Name Signature APPROVED AS TO FORM AND LANGUAGE AND Print Name FOR EXECUTION City Attorney Dated F:\ATTO\HELG\Agreements\Capitman maintenance agreement\Capitman maintenance agreement rev 3-21-14.DOCX Page 6 of 6