Agreement with MDPL, Inc. 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 g day of March, 2014, by.and between
the City f
y 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 13`h
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 1 l, 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
L
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 AA 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 parry 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
�i
' a
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
i
i
a
4. MAINTENANCE
(a) Establishment of BBC Memorial Account
MDPL-shall deposit,on or before the completion of the Memorial,the sum of$30,00.0,00
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,nor 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 LE_ AGUE
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. MISCELLANEOUS
(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), . ,Stverability
«••.•-In'the went'that any clause or provision of this Agreement or any part thereof shall be
declared invalid,void oX unenforceable by any court having jurisdiction, such invalidity shall not
affjct the�vaU4jty or enforre4bi14y of the remaining portions of this Agreement unless the result
woOd b�rnah'lfestly i*Njitld*e 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:
i
IN WITNESS WHEREOF, the parties have set their hands and seals at the place and on
the date first above written.
City o4Mv,,ia i Beach, F lorida Miami Desig Preservation League,Inc.
By VI'Ct—Mayor Ky Sf e�h►�:g Presi • � �
day of t , 2014 day of `. : , 2014
ATTEST: Witnesses:
City Clerk -. Signature
Print Name
Fty4, ture
APPROVED AST •••••°
AND LANGUAGE A C H 2 Print Name
tfHINEXE TIC N
City Aqpmey Dated
iI
F:\ATTO\HELG\Agreements\Capitman maintenance agreement\Capitman maintenance agreement rev 3-21-14.DOCX
Page 6 of 6
i/
RECEIVED John V. Chibbaro
Akerman LLP
14 JUN -4 Pik 4: 29 One Southeast Third Avenue
Suite 2500
C17 Y ATTORNEY`S"OFFt Miami,FL 33131-1714
Tel: 305.374.5600
Fax: 305.374.5095
June 3, 2014
Gary M. Held, First Assistant City Attorney
Office of the City Attorney
City of Miami Beach
1700 Convention Center Drive, 41h Floor
Miami Beach, FL 33139
RE: Agreement between the City of Miami Beach and the Miami Design
Preservation League.
Gary:
As previously discussed, enclosed please find three copies, each signed
originals, of the agreement between the City of Miami Beach and the Miami Design
Preservation League, regarding the Barbara Baer Capitman Memorial, approved by the
City Commission on April 23, 2014.
Please let me know once the Agreements have been signed by the City.
5 ery ly yours,
truly J n V. Chibbaro
akerman.com
(28973650;1)
MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139 www.miamibeachfl.gov
OFFICE OF THE CITY CLERK
Tel: 305.673.741 1, Fax: 305.673.7254
Email: CiNClerk @miamibeachfl.aov
June 19, 2014
John V. Chibbaro
Akerman LLP
One Southeast Third Avenue, Suite 2500
Miami, Florida 33131-1714
RE: Agreement between the City of Miami Beach and the Miami Design Preservation
League.
Dear Mr. Chibbaro:
Attached you will find an executed original agreement between the City of Miami Beach and Miami
Design Preservation League, Inc. for the Installation, Transfer, and Maintenance of the Barbara
Baer Capitman Memorial.
This is for your records.
Respectfully,
Rafael f. Granado,
City Clerk
REG/Ib
Enc. Agreement
F:\CLER\$ALL\LILLY\LETTERS\2014\Joh rich ibarroag reementwithcmbmiamidesign preservation league.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 thisl yday 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 13th
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. MISCELLANEOUS
(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� S�vera.bilit ,-. ,
In". ;6vdnt that ddy el". orprovision of this Agreement or any part thereof shall be
declared invalid; void of unenforceable by any court having jurisdiction, such invalidity shall not
affect the validity,or enforgegbil4ty of the remaining portions of this Agreement unless the result
would `e��r ifestly ineq�,iit�bte 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
IN WITNESS WHEREOF, the parties have set their hands and seals at the place and on
the date first above written.
City of Mia ' Beach, Florida Miami Design Preservation League, Inc.
By '°� By
Mayor Presi J
day of —J d-rs� , 2014 day of AtH , 2014
ATTEST: _ Witnesses:
r�
• M1
City Cle k,='- IV
Signature
J Print N e
•• � =_ _..
� a• .... .• :�` ignature
•C�
APPROVED TM
A
AND LANGUAGE AND Print Name
Z itynUTW-1%N
"t'v'1�� u c
Attorney Dated
F:\ATTO\HELG\Agreements\Capitman maintenance agreement\Capitman maintenance agreement rev 3-21-14.DOCX
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