Agreement with Bass Museum, Inc. ao g- 3o17Z
City of Miami Beach,1700 Convention Center Drive.Miami Beach,FL 33139 Tel.305-673-7010 Fax 305-673-7762
Jimmy Morales, City Manager
Tel. 305-673-7010, Fax 305-673-7782
June 6, 2018
George Lindemann, President
Friends of the Bass Museum, Inc.
2121 Park Avenue
Miami Beach, Florida 33139
Re: Agreement between the City of Miami Beach, Florida (the "City") and the
Friends of the Bass Museum, Inc. (the "Friends") for the Continued
Management and Operation of the Bass Museum of Art from October 1,
2017 to September 30, 2018.
Dear Mr. Lindemann.
The following letter agreement (the "Letter Agreement" or "Agreement") shall confirm
the understanding between the City and the Friends (each, a "Party, or collectively, the
"Parties"), with regard to the Friends' agreement to continue providing certain
management and operational responsibilities at the Bass Museum of Art, located at a
building (the "Museum Building") owned by the City, having a street address of 2121
Park Avenue, Miami Beach, Florida (hereinafter the "Bass Museum" or the "Museum"),
for a term commencing, retroactively, on October 1, 2017 (the"Commencement Date")
and terminating on September 30, 2018 (the"Term").
Background Regarding the Parties' Overall Support for the Bass Museum
This Letter Agreement represents a portion of each Party's contribution to the overall
support of the Bass Museum and its programs, operations and facilities. Specifically, in
addition to the contribution set forth in this Letter Agreement, during FY2017-18 the City
shall continue to, among other commitments and contributions to the Bass Museum:
(i) fund certain the salaries and benefits of two positions (as City employees)
separately;
(ii) provide for certain maintenance and repairs for the Museum Building to
be performed directly by the City through its Property Management
Department, with any such repairs to be determined by the City in its
reasonable discretion, with input from the Friends as to any applicable
accreditation-related facility requirements;
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(iii) provide staff resources from time to time for the benefit of the Museum
(such as Capital Improvements Office staff assistance in connection with
the Bass Museum renovation project); and
(iv) provide separate grants from time to time for specified purposes, such as a
pending grant in the amount of$100,000 for the purchase of outdoor café
furniture, and a pending grant from the City's Cultural Arts Council for
$26,724.
Similarly, in addition to undertaking the management and operational responsibilities set
forth herein, this Letter Agreement represents a portion of the significant support the
Friends provides for the benefit of the Bass Museum, which support serves to enhance
the cultural offerings available at the Bass Museum, including funding for temporary
exhibitions at the Museum, fundraising activities, communications and public relations,
and educational programming, the expenses for which are solely funded by the Friends,
from funding sources other than the City funding provided for herein.
Administration, Operation and Maintenance of the Collection and the Museum
Building
In addition to the above-referenced support provided by the Friends for the benefit of the
Bass Museum, 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 (the "1963 Bass Agreement"); as amended and restated on March 31,
2010 by that certain Amended and Restated Agreement between the City and
Dennis Alan Richard, as successor in interest to John and Johanna Bass (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
further the purposes set forth in the Bass Agreement).
• 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
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housekeeping and maintenance; record-keeping; collections and billings; and
similar services.
The Friends represent to the City that, prior to the commencement of the Term, its
authorized representatives have inspected the Museum Building; accordingly, the Friends
hereby accept the Museum Building"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.
City's Contribution for the Services
The City agrees to pay the Friends the total amount of$651,000 for FY2017-18 for the
Services (the "City Funds"), which City Funds shall be used solely for expenses relating
to the administration, operation, and maintenance of the Collection and the Museum
Building, as provided in the budget set forth in Exhibit A attached hereto (the"Budget").
The Budget, which the City and Friends have mutually reviewed and approved,
represents a portion of the annual operating budget of the Museum, and includes the
categories of expenses related to the Services that will be funded with the City's
contribution, as outlined in this paragraph. Any categories not listed in the Budget or
amounts in excess of those listed in the Budget shall be provided by Friends from funds
other than the City Funds. The City and Friends hereby agree and acknowledge that said
Budget is adequate for the provision of the Services for FY2017-18. With respect to the
expenses outlined in Exhibit A. the Friends shall not exceed the Budget unless Friends
has secured funds other than City Funds to pay such overages.
City shall pay the Friends $326,000 to the Friends upon execution of this Letter
Agreement, with the remaining balance to be disbursed to the Friends within ten (10)
days following the submission of supporting documentation reasonably acceptable to the
City verifying that City's contribution herein shall be solely used to defray costs related
to the administration, operation and maintenance of the Collection and the Museum
Building, pursuant to the Budget. Such supporting documentation shall include a list of
Friends employees, with salary and benefit information, and other documents as may be
requested by the City (the `Supporting Documentation"). It is the intention of the Parties
that the Supporting Documentation be provided merely as evidence that Friends have
incurred such expense and not to provide City with approval rights as to any such
expense shown in the Supporting Documentation. Friends shall continue to operate the
Museum in the manner required by, and exercising the discretion afforded to Friends
pursuant to, the Bass Agreement and it is not the intent of the Parties to transfer or
modify either Party's rights or responsibilities, as provided in the Bass Agreement.
The Friends shall use its best efforts to undertake, deliver and perform the Services in
both the manner required by the Bass Agreement, and in accordance with the amounts set
forth in the Budget. The Friends agree to notify the City Manager within ten (10) days of
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any significant overages in the line items contained in the Budget. To the extent Friends
realizes any savings in any line item in the Budget, Friends may reallocate such savings
to another line item in the Budget without the City's approval; provided, however, that
the Friends shall provide prior notice to the City of any reallocation of City Funds, along
with supporting details,to permit the City to verify that the City Funds will be reallocated
to defray expenses for the administration, operation and maintenance of the Collection
and the Museum Building. 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 Budget without first obtaining either 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, or an alternative source of
funding for such overage.
The Friends hereby commit to participate in City's regular budget process, and have
submitted a proposed budget request for FY2018-19, along with necessary Supporting
Documentation for FY2018-19.
The Friends shall pay all items of expense related to the Services (and subject to the
amount indicated in the approved Budget) from JP Morgan (General Operating Account)
#XXXXX6630. 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 be prepared by the Assistant Director of the Museum and confirmed by
the Executive Director of the Museum. All checks exceeding five thousand dollars
($5,000) shall require two signatures. Authorized signatories on the account are as
follows:
• Executive Director;
• President of the Board;
• Secretary of the Board; and
• Treasurer of the Board.
With respect to the Executive Director, the Parties acknowledge and agree that,
notwithstanding any provision to the contrary in the Bass Agreement, at the request of the
Friends, the City has continued to employ the Executive Director as a City employee, to
accommodate the Director's pre-existing pension and related benefits.
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, and shall keep accurate
and complete books and records of all receipts and expenditures of City funds provided
pursuant to this Letter Agreement. Any financial records shall be maintained in
accordance with generally accepted accounting principles, for at least four (4) years
following the end of the fiscal year. 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'
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records, upon reasonable written or verbal notice to the Friends, and during the
Museum's normal hours of operation.
Other Terms
The Friends agree to maintain an updated inventory of the works that form part of the
John and Johanna Bass Collection. As part thereof, the Friends agree to provide the City
with a list of any works that may have been acquired or donated in the name of the
Friends of the Bass, Inc., whether any such works have been formally accessioned into
the Bass Collection, and if accessioned, the date the work was accessioned as part of the
Bass Collection. With respect to any works for which title is held in the name of the
Friends of the Bass, Inc. (i.e., not accessioned into the Bass Collection), the Friends
agrees to provide the City with its proposed methodology for the proportionate
allocations between the City and the Friends, respectively, for costs of the maintenance,
preservation, storage and insurance for any such works, such that City Funds shall not be
utilized for the care of such works, with the final methodology subject to mutual
agreement of the Parties.
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:
City of Miami Beach
Tourism, Culture and Economic Development
Attn: Brandi Reddick
Cultural Affairs Program Manager
1700 Convention Center Drive
Miami Beach, Florida 33139
305-673-7577
For the Friends:
Friends of the Bass Museum, Inc.
Attn: Jean Ortega
Deputy Director
2100 Collins Avenue
Miami Beach, Florida 33139
305-673-7530
As part of City's obligation to monitor and evaluate the expenditure of public funds as
contemplated by this Agreement, the City's contract administrator and/or other City
representatives may visit the Bass Museum and/or otherwise observe its programs,
procedures, and operations. As part thereof, the Friends agree to provide notice to the
City's contract administrator of meetings of the Board of Directors and its Executive
Committee, to facilitate the City Manager's participation as a voting member thereof
pursuant to the Bass Agreement.
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The Friends shall maintain its good standing in accordance with the laws of the State of
Florida and operate the Museum Building pursuant to the standards set forth in the Bass
Agreement. The Friends shall comply with any federal, state or local laws applicable to
the Friends or the conduct of its operations, including, without limitation, maintaining its
exempt organization status pursuant to the Internal Revenue Code, obtaining any business
tax receipt(s) that may be required for any business activity conducted in Miami Beach,
timely making payment of all taxes, fees or charges that may be due to the City of Miami
Beach, if any is required. Friends shall promptly commence corrective action to correct
or contest any notice of violation issued by any governmental agency with jurisdiction
over the Museum Building. Further, the Friends agree to comply with the terms and
conditions of any contract or other grant agreement that Friends may have separately
entered into with the City of Miami Beach. For the avoidance of doubt, the provisions of
Sections 2-311 through 2-372 of the City Code, relating to the procurement of goods and
services by the City, shall not apply to the Friends, which shall procure goods and
services in accordance with the procurement policy approved by its Board of Directors.
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 the
execution of this Letter of Agreement between the City and Friends.
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 the insurance requirements set forth in the attached Exhibit B.
The Friends shall provide proof of the aforestated coverages to the City Manager, within
thirty(30)days of execution of this Letter of Agreement. It is understood and agreed that
any coverage provided by the Friends is primary to any insurance or self-insurance
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program the City has for the Museum, and that there shall be no right of recovery or
subrogation against the City.
This Letter of 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:
TO FRIENDS: Friends of the Bass Museum, Inc.
Attn: Silvia Karman Cubina
Executive Director/Chief Curator
2100 Collins Avenue
Miami Beach, Florida 33139
(305) 673-7530
TO CITY: City of Miami Beach
Tourism, Culture and Economic Development
Eva Silverstein
Director
1700 Convention Center Drive
Miami Beach, Florida 33139
(305) 673-7577
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
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 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 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 represent, warrant and covenant to the City:
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(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
(iii) that the Friends will comply with all laws applicable to its management of
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 Budget.
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
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 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.
As noted above, this Letter Agreement represents a portion of each Party's contribution
to the overall support and budget of the Bass Museum, consistent with the Bass
Agreement. Nothing herein is intended to amend or modify the terms of the Bass
Agreement, nor shall any provision herein be construed as to amend, modify, or
supersede, or increase the obligations of either Party under, the terms of the Bass
Agreement.
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Attest: CII OF MIAM ;EACH,FLORIDA
7 G - .a e7
Rafael E. Granado,City Clerk Jit I y L. ',ales, City Manager
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Attest: (_ I co L7FRIENDS OF THE BASS MUSEUM,
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& Ir /George
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Se,retary L. Lindem. In, 'resitent
Date
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EXHIBIT A
BUDGET
Salaries and Benefits $
Exhibition Expenses $
Education Expenses $
Communications/Public Relations $
Facilities and Security $
Repairs and Maintenance $
Other Operating Expenses $
TOTAL $651,000
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EXHIBIT A
BUDGET
Administrative Costs $206210
Facilities Costs $256,500
Permanent Collection Costs $180,290
Marketing Costs Same
TOTAL $651,000
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EXHIBIT B
INSURANCE REQUIREMENTS
. Friends shall maintain,at Friends' sole cost and expense,the following types of insurance
coverage at all times throughout the term of this Letter of Agreement:
A. Commercial General Liability Insurance, on an occurrence form, in the
amount of Two Million ($2,000,000) Dollars, per occurrence, for bodily
injury, death, property damage, and personal injury. This policy must
name the City of Miami Beach, Florida,as additional insured.
B. Workers Compensation Insurance shall be required under the Laws of
the
State of Florida and employer's liability insurance of not less than One
Million Dollars($ 1,000,000)per occurrence.
C. Automobile Insurance shall be provided covering all owned, leased, and
hired vehicles and non-ownership liability for not less than the following
limits, subject to adjustment for inflation (only if Friends provides
transportation services):
Bodily Injury $1,000,000 per person
Bodily Injury $1,000,000 per accident
Property Damage $ 500,000 per accident
D. All risks property insurance, containing a waiver of subrogation rights
which Friends'insurers may have against the CITY and against those for
whom the CITY is in law responsible including, without limitation, its
directors, officers, agents, and employees, and (except with respect to
Friends' chattels) incorporating a standard Florida mortgagee
endorsement (without contribution). Such insurance shall insure
property of every kind purchased and/or maintained at the Bass Museum
and the Premises, including the value of the Collection and all
improvements installed in the Premises, in an amount not less than the
full replacement cost thereof(new), with such cost to be adjusted no less
than annually. Such policy shall include as additional insureds the City
and its affiliates.
E. Fire Insurance shall be the responsibility of the City.
F. Any other form of insurance which the City requires, from time to time,
in form, in amounts, and for risks against which it would be prudent to
insure, in the City's sole discretion.
2. The policies of insurance referred to in the above paragraph 1 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.
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3. Additional Insured Status. The City of Miami Beach must be covered as an additional
insured with respect to liability arising out of work or operations performed by or on behalf of
Friends.
4. Waiver of Subrogation. Friends hereby grant to City of Miami Beach a waiver of any
right to subrogation which any insurer of Friends may acquire against the City of Miami Beach
by virtue of the payment of any loss under such insurance. Friends agree to obtain any
endorsement that may be necessary to affect this waiver of subrogation,but this provision applies
regardless of whether or not the City of Miami Beach has received a waiver of subrogation
endorsement from the insurer.
5. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M.
Best's rating of no less than A:VII, unless otherwise acceptable to the City of Miami Beach Risk
Management Office.
6. Verification of Coverage. Friends shall provide the required insurance
certificates, endorsements or applicable policy language effecting coverage required by
this Section. All certificates of insurance and endorsements are to be received prior to
any work commencing. However, failure to obtain the required coverage prior to the
work beginning shall not waive the Contractor's obligation to provide them. The City of
Miami Beach reserves the right to require complete, certified copies of all required
insurance policies, including endorsements required by these specifications,at any time.
7. Special Risks or Circumstances. The City of Miami Beach, in its sole discretion,
through the City Manager. reserves the right to modify these requirements, including
limits, based on the nature of the risk, prior experience, insurer, coverage, or other special
circumstances.
Certificate Holder
CITY OF MIAMI BEACH
do INSURANCE TRACKING SERVICES
1700 CONVENTION CENTER DRIVE
MIAMI BEACH,FL 33139
Compliance with the foregoing requirements shall not relieve the vendor of his liability and
obligation under this section or under any other section of this agreement.
8. Should Friends fail to obtain, maintain or renew the policies of insurance referred to
above, in the required amounts, the City may, at its sole discretion, obtain such insurance, and
any sums expended by the City in obtaining said insurance, shall be repaid by Friends to the City,
plus ten percent(10%) of the amount of premiums paid to compensate City for its administrative
costs. If Friends 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 and such failure
shall also be deemed an event of default hereunder.
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