HomeMy WebLinkAboutResolution 2025-33969RESOLUTION NO. 2025-33969
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING, IN SUBSTANTIAL FORM, A
MEMORANDUM OF UNDERSTANDING (THE "MOU") BETWEEN FRIENDS OF
THE BASS MUSEUM, INC. AND THE CITY OF MIAMI BEACH, FLORIDA,
REGARDING DESIGN RESPONSIBILITIES FOR THE BASS MUSEUM
EXPANSION PROJECT; AUTHORIZING THE CITY MANAGER TO FINALIZE
THE MOU; AND FURTHER, AUTHORIZING THE CITY MANAGER AND CITY
CLERK TO EXECUTE THE MOU.
WHEREAS, the Bass Museum (the "Museum"), located at 2100 Collins Avenue, Miami
Beach, Florida, is owned by the City and operated by the Friends of the Bass Museum, Inc. (the
"Friends'); and
WHEREAS, on November 8, 2022, the electorate of the City of Miami Beach voted in favor
of the General Obligation Bond for Arts and Culture Program (the "GOBAC Program") in the
amount of $159,000,000 to improve facilities for resiliency of arts and cultural institutions
throughout the City, including museums, performance venues, artistic playgrounds,
senior/cultural centers, botanical garden, aquatic sculpture park and related artist/workforce
housing; and
WHEREAS, an expansion to the Museum (the "Project") was approved as part of the
GOBAC Program and includes the construction/addition of an indoor/outdoor structure that will
serve as a multi -use cultural space for the community to convene, a cafo, as well as a non-
traditional art exhibition space adjacent to the Museum's southwestern flank; and
WHEREAS, in June 2024, the City engaged Zyscovich, Inc. to complete a Needs
Assessment and Basis of Design Criteria for the Project that reflects the Museum's future vision,
needs, and business model; and
WHEREAS, these services were required to develop functional space programming,
which will serve as a road map (basis of design) for the design architect; and
WHEREAS, in March 2025, the Board of Trustees of the Museum, during its scheduled
meeting, discussed the possibility of raising/releasing private funds to cover the architecture and
engineering fees for the Project, in order to allow GOBAC Program funds currently budgeted for
soft costs to be reallocated to hard costs, thereby increasing the projected construction budget;
and
WHEREAS, accordingly, the Friends contacted the City and proposed contracting and
funding the design services directly, through their available private funding; and
WHEREAS, the Museum's Board of Trustees, during a scheduled meeting, agreed to
create an independent process whereby the Board of Trustees reviews and selects the architect
for the Project; and
WHEREAS, the Friends have proceeded with the selection of the architect for the Project;
and
WHEREAS, the City will retain responsibility for overseeing the design and, contingent
upon final approval of the design by the City Commission, executing the construction of the
Project; and
WHEREAS, on July 23, 2025, the City Commission approved the issuance of a Request
for Qualifications ("RFQ") for a Construction Manager at Risk for the Project; and
WHEREAS, the RFQ was issued in July 2025, proposals were submitted, and the award
of the contract is anticipated in December 2025; and
WHEREAS, the City Administration recommends that the Mayor and City Commission
approve, in substantial form, the Memorandum of Understanding between the City and the
Friends, attached to the City Commission Memorandum accompanying this Resolution as Exhibit
A, pursuant to which the Friends' shall be responsible for selecting and fully funding the design
professionals for the Project.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby approve, in substantial form, a Memorandum of Understanding (the "MOU")
between Friends of the Bass Museum, Inc. and the City of Miami Beach, Florida, regarding design
responsibilities for the Bass Museum expansion project; authorize the City Manager to finalize
the MOU; and further, authorize the City Manager and City Clerk to execute the MOU.
PASSED and ADOPTED this 17 day of NUMLY' 2025.�I •
'���p��/l➢�u-cam �� IX�C��t/l�_
Steven Meiner, Mayor
2 2025
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
City Attorney i�M Date
Resolutions - C7 F
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Eric Carpenter, City Manager
DATE: December 17, 2025
TITLE: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING, IN SUBSTANTIAL FORM, A
MEMORANDUM OF UNDERSTANDING (THE -MOU-) BETWEEN FRIENDS OF
THE BASS MUSEUM, INC. AND THE CITY OF MIAMI BEACH, FLORIDA,
REGARDING DESIGN RESPONSIBILITIES FOR THE BASS MUSEUM
EXPANSION PROJECT; AUTHORIZING THE CITY MANAGER TO FINALIZE THE
MOU; AND FURTHER, AUTHORIZING THE CITY MANAGER AND CITY CLERK
TO EXECUTE THE MOU.
RECOMMENDATION
The Administration recommends that the Mayor and City Commission (City Commission) adopt
the Resolution.
BACKGROUND/HISTORY
The Bass Museum Expansion Project (Project) was approved as part of the 2022 General
Obligation Bond for Arts & Culture (GOBAC) Program in the amount of $15.7M. The Project
includes building/adding an indoor/outdoor structure that will serve as a multi -use cultural space
maker, a space to convene community in the form of a gathering space, cafe, and non-traditional
art exhibition space, adjacent to The Bass Museum's (The BASS) southwestern flank.
In June 2024, the City engaged Zyscovich, Inc. to complete a Needs Assessment and Basis of
Design Criteria for the Project that reflects the The BASS' future vision, needs, and business
model. The services were required to develop functional space programming, which will serve as
a road map (basis of design) for the design Architect.
In September 2024, a process was initiated to issue a Request for Qualification (RFQ) to select
a firm for architectural design services for the Project, to provide complete design, permitting,
construction documents, bid assistance, and post design services.
In March 2025, during their Board of Trustees meeting, The BASS discussed the possibility of
raising/releasing private funds to cover the architecture and engineering fees for the Project. This
initiative would enable the reallocation of a portion of the GO Bond funds currently budgeted for
soft costs toward hard costs, thereby increasing the projected construction budget. The City will
oversee the execution of the design by The BASS and will retain responsibility for the. construction
phase. This is contingent upon final approval by the City Commission and the execution of the
MOU between the Friends of The BASS Museum, Inc. and the City of Miami Beach.
ANALYSIS
The Board of Trustees of The BASS, during their scheduled meeting, agreed/accepted the
creation of an independent process whereby the Board of Trustees reviews and selects the
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architect for the Project. The BASS contacted the City and has proposed contracting and funding
the design services directly, through their available funding. The details of the agreement are
outlined in the MOU (Exhibit A), to be executed in substantial form, upon approval by the City
Commission. The BASS has reviewed and approved the MOU in substantial form.
The BASS has proceeded with the selection of the Architect for the Project. On July 23, 2025,
the City Commission approved the issuance of an RFQ for a Construction Manager at Risk
(CMAR) for the Project. The CMAR is a project delivery method where the construction manager
commits to delivering a project within a Guaranteed Maximum Price (GMP). The construction
manager will provide pre -construction services including construclability reviews, scheduling, and
periodic construction cost estimates throughout the design phase. Early collaboration between
the design and construction teams is critical to ensure the design remains within budget. The RFQ
for CMAR was issued in July 2025, responses to the solicitation were received, and the award of
the contract is anticipated in December 2025.
FISCAL IMPACT STATEMENT
The total budget allocated for the Bass Museum Expansion Project is $15.7 million, which
includes approximately $11.1 million designated for construction.
Does this Ordinance require a Business Impact Estimate?
(FOR ORDINANCES ONLY)
If applicable, the Business Impact Estimate (BIE) was published on:
See BIE at: https://www.miamibeachfl.gov/city-hall/cityalerk/meeting-notices!
FINANCIAL INFORMATION
N/A
CONCLUSION
The Administration recommends that the Mayor and City Commission adopt the Resolution.
Applicable Area
South Beach
Is this a "Residents Right to Know" item, Is this item related to a G.O. Bond
pursuant to City Code Section 2.17? Project?
No
Yes
Was this Aaenda Item initially reauested by a lobbvist which, as defined in Code Sec. 2.481.
includes a principal engaged in lobbying? No
If so, specify the name of lobbyist(s) and principal(s)
Department
Capital Improvement Projects
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Sponsor(s)
Co-sponsor(s)
Condensed Title
Execute MOU, Bass Museum Expansion Project. CIP
Previous Action (For City Clerk Use Only)
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EXHIBIT A
MEMORANDUM OF UNDERSTANDING
REGARDING DESIGN RESPONSIBILITIES FOR
THE BASS MUSEUM EXPANSION PROJECT
This Memorandum of Understanding (this "Agreement") is made and entered into on this
day of ,2025 ("Effective Date"), by and between FRIENDS OF THE BASS
MUSEUM, INC. (the "Friends"), and the CITY OF MIAMI BEACH, FLORIDA, a Florida municipal
corporation, whose address is 1700 Convention Center Drive, Miami Beach, Florida 33139 (the
Each of the Friends and the City may hereinafter be referred to as a "Early." and collectively
the "Parties".
WHEREAS, the Bass Museum (the "Museum"), located at 2100 Collins Avenue, Miami
Beach, Florida, was established from As inception as a strong public/private partnership through
a contractual agreement entered into in 1963 between the City and John and Johanna Bass
(together with all subsequent amendments thereto, the "1963 Bass Agreement"), whereby the
City accepted the gift of the art collection of John and Johanna Bass (the "Collection"), in
exchange for making the Collection open and available to the public in a building maintained by
the City;
WHEREAS, the 1963 Bass Agreement requires the City to administer, operate and
maintain the Collection in perpetuity, provide for the exhibition of the Collection, keep the
Collection open and available to the public, and provide funding for the maintenance and
exhibition of the Collection;
WHEREAS, on March 10, 2010, the Mayor and City Commission adopted Resolution No.
2010-27349, approving an Amended and Restated Bass Museum Agreement between the City
and Dennis Alan Richard,as successor -in -interest to John and Johanna Bass (the "Amended and
Restated Agreement");
WHEREAS, the Amended and Restated Agreement was intended to replace and
supersede the 1963 Bass Agreement and, among otherthings: (1) reaffirmed the City's continuing
obligation to fund the administration, operation and maintenance of the Collection at the Museum
building under the current name "The Bass Museum of Arl"; ( 2) provided guidelines for the
maintenance of the Museum building; (3) confirmed governance of the Museum by the Friends
through its board of directors, with the City Manager holding one of the seats on the board and
twenty percent (20%) voting power; and (4) established oversight by an independent executive
director;
WHEREAS, the Friends continue to provide oversight and management for the Museum
pursuant to a Letter of Agreement between the City and the Friends which is renewed annually
on October 1;
WHEREAS, on November 8, 2022, the electorate of the City of Miami Beach voted in favor
of the General Obligation Bond for Arts and Culture Program (the "GOBAC Program") in the
amount of $159,000,000 to improve facilities for resiliency of arts and cultural institutions
throughout the City, including museums, performance venues, artistic playgrounds,
senior/cultural centers, botanical garden, aquatic sculpture park and related artisUworkforce
housing;
WHEREAS, an expansion to the Museum (the "Bass Museum Expansion Project" or the
"Proiecr) was approved as part of the GOBAC Program and includes the construction/addition of
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EXHIBIT A
an indoor/outdoor structure that will serve as a multi -use cultural space for the community to
convene, a cafe, as well as a non-traditional art exhibition space adjacent to the Museum's
southwestern flank, as more specifically defined in Exhibit A;
WHEREAS, the Project is estimated to cost $15.37 million with a construction cost of
approximately $11.1 million;
WHEREAS, in order to enable GOBAC Program funds currently budgeted for soft costs
to be reallocated to hard costs, the Friends intends to assume the obligation to engage a lead
architectural firm and to cover all costs associated with work to be performed by the Architect (as
defined below) and other design professionals associated with the preparation of design
development drawings and construction documents for the Project, including the preparation of
permit plans; and
WHEREAS, the Friends and the City desire to agree to this arrangement subject to the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants herein
exchanged, and other good and valuable considerations the receipt and sufficiency of which is
hereby conclusively acknowledged, the Parties agree as follows:
1) Definitions. All capitalized terms used in this Agreement shall have the meanings set
forth in this Section unless such terms are defined elsewhere in the body of this
Agreement.
a. "Architect" means the lead architectural firm hired to work on the Project.
b. "Bass Museum Expansion Project" or "Project" is defined in the recitals.
c. "CCU" means the City of Miami Beach, a Florida municipal corporation, having its
principal offices at 1700 Convention Center Drive, Miami Beach, Florida 33139. In
the event the City exercises its regulatory authority as a governmental body, the
exercise of such regulatory authority and the enforcement of any laws, rules,
regulations, ordinances, and plans (including through the exercise of the City's
building, fire, code enforcement, police department or otherwise) shall be deemed
to have occurred pursuant to the City's regulatory authority as a governmental
body and shall not be attributable in any manner to the City as a party to this
Agreement or in any way deemed in conflict with, or a default under, the City's
obligations hereunder.
d. "Claims" is defined in Section 11.
e. "Code" means the Code of Ordinances of the City of Miami Beach, Florida.
f. "Construction Agreements" means, collectively, the Construction Contract and any
other contractor's agreements, architect's agreements, engineers' agreements, or
any other agreements for the provision of labor, materials, services or supplies
with respect to the construction of the Project entered into by the City, as the same
may be amended or otherwise modified from time to time.
g. "Construction Contract" means the contract for predevelopmenl services and,
once approved, the amendment to such contract providing for construction of the
Project for a guaranteed maximum price ('Guaranteed Maximum Price") or a
stipulated sum, as determined by and executed between the City and the
Contractor, as the same may be amended or otherwise modified from time to time.
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EXHIBIT A
h. "Contractor" means the duly licensed general contractor or construction manager
at risk' engaged by the City under the Construction Contract for the construction
of the Project.
i. "CPM Schedule" means the construction schedule for the Project, which shall be
prepared using the critical path method ("CPM") and which may be amended by
the City from time to time. The CPM Schedule shall include the following:
i. a CPM network diagram for use in scheduling and controlling work;
il. the early and late start and stop times for each major construction activity;
ill. all "critical path" activities and their duration;
iv. the sequencing of all procurement, approval, delivery and work activities;
V. late order dates for all long lead time materials and equipment; and
vi. critical Friends and City decision dates.
j. "Default" is defined in Section 9.
k. "Design Development Plans" means the plans for the Project describing and
quantifying the principal elements of the design for architecture, landscape,
engineering, and any other relevant factors. The Design Development Plans shall
also include, where relevant, typical details and materials, to assist the City in
determining the pricing of the Project.
I. "Development Permit" means any building permit, zoning permit, subdivision
approval, rezoning, certification, special exception, variance, or any other official
action of local government having the effect of permitting the development of land.
m. "Effective Date" is defined in the first paragraph of this Agreement.
n. "Final Project Budget" is defined in Section 2.
o. "Force Maieure" is defined in Section 22.
p. "Friends" is defined in the first paragraph of this Agreement.
q. "Friends Design Professionals" means the architects, engineers, and other design
professionals engaged by the Friends, whether prior to or subsequent to the
Effective Date, for the preparation of the Project Plans. The Friends Design
Professionals shall provide design services for the Project, as well as construction
administration services during the construction of the Project, and shall assist the
Parties in ensuring that the Project is completed in accordance with the terms and
conditions of the Construction Contract, the Project Plans and industry standards.
The Friends, in coordination with the City, shall cause the applicable Friends
Design Professional(s) to certify progress and completion of the Project in
accordance with the City -approved Project Plans, including, without limitation, as
and when payment requisitions are received from the Contractor.
r. "Friends Design Professional Agreements" means all agreements entered into by
the Friends with the Friends Design Professionals, as the same may be amended
or otherwise modified from time to time.
s. "Proiect Plans" means the comprehensive plans and specifications for the Project
to be prepared by the Architect and other Project Design Professionals engaged
by the Architect and approved by the City pursuant to the terms of this Agreement,
including the Design Development Plans and any construction plans and
specifications subject to any modifications agreed to in writing by the Parties.
t. "Pro act Work" means all the physical development, construction and finishing
work for the completion of the Project.
u. "Required Clauses" is defined in Section 9.
' A construction manager at risk acts as a general contractor.
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EXHIBIT A
2) Implementation of the Project. In connection with the Project, the City and the Friends
will collaborate as follows:
a. To evaluate and refine the preliminary Project budget attached hereto as Exhibit
B, which sets forth the estimated costs for the Project and which shall be subject
to change pending completion and approval by both Parties of the Project Plans
and Construction Agreements prepared pursuant thereto and in accordance with
this Agreement.
b. The Parties agree to amend this Agreement to attach the final Project budget (the
"Final Project Budget") once agreed to by the Parties per the terms of this
Agreement.
c. The Friends' liability under this Agreement shall be limited to engaging the
Architect, causing the Architect to prepare the Project Plans and any materials
necessary for any Development Permits required, as well as providing construction
administration services, it being understood and agreed that the Friends Design
Professionals shall be responsible for preparing the Project Plans in consultation
with the City, the Contractor and to the extent applicable, any other Friends Design
Professional, and subject to the City's prior written approval (the costs and
expenses of the Architect and Project Plans shall be borne solely by the Friends).
d. The Friends shall collaborate with the City in a timely and efficient manner in
preparation of the Final Project Budget and CPM Schedule; and
e. The City shall engage the Contractor
3) Party Execution of Necessary Documents for Protect Approvals. The City and the
Friends shall join in any applications necessary for approval of the Project in accordance
with the Project Plans.
4) Funding for the Project. The Friends will be solely responsible for all costs necessary
for the Architect and other Friends Design Professionals whether engaged via the
Architect or directly by the Friends to produce the Project Plans, as well as all costs
associated with construction administration services. The City shall be solely responsible
for all so-called hard costs to construct the Project as well as permitting costs. The Parties
agree that the total hard costs and permitting costs of the Project will not exceed
$11,417,336.
5) Preparation and Approval of Project Plans.
a. Within sixty (60) days after the Effective Date, the Friends shall engage and
commence to work with the Architect to prepare the Project Plans, which Project
Plans shall be subject to prior written approval by the City at 30%, 60% and 90%
stages of completion of such documents (provided the City shall have 60 days to
review same). Failure by the City to approve or comment on such Project Plans
within 60 days shall be deemed approval of the Project Plans. The Friends shall
have eighteen (18) months after the Effective Date to prepare the Project Plans
and obtain all permits necessary for commencement of construction of the Project;
provided, however, that the City shall be responsible for the costs of permits. The
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EXHIBIT A
foregoing time period is subject to extension based upon (i) a Force Majeure event
that actually delays the preparation of the Project Plans, provided that notice of
such Force Majeure event is delivered to the City in accordance herewith, and/or
(ii) delays caused by the City solely to the extent that such delays are due to review
of such Project Planc by the City beyond each period set forth above, and/or (III)
as reasonably agreed by the Parties.
b. The City, in its proprietary capacity, agrees to reasonably cooperate with the
Friends in the preparation of any necessary application materials for Development
Permits for the Project.
c. Upon completion of the final construction documents, the Friends shall submit
them to the City and its Contractor, including for the purpose of verifying that the
Project set forth therein is substantially in accordance with the Project Plans (as
amended, if that be the case) and this Agreement, and verifying that the Project
can be completed in accordance with the Final Project Budget. The City Manager,
on behalf of the City in its proprietary capacity (and not in its govemmental or
regulatory capacity), shall review and either approve or reject such construction
documents within thirty (30) days after receipt of the same. If the City Manager
timely rejects such construction documents, the City Manager shall provide
specific and detailed reasons for such rejection. In that event, the Friends shall
cause the construction documents for the Project to be revised so that they are
substantially in accordance with the Project Plans and this Agreement, and so that
the Project may be completed in accordance with the Final Project Budget. The
Friends shall then re -submit the revised construction documents to the City
Manager pursuant to the foregoing process, and this review and revision
procedure shall continue until the construction documents have been approved by
the City Manager.
d. Should any claims arise under the Construction Contract or the Friends Design
Professional Agreements relating to actions, errors, or omissions on the part of the
Contractor or Friends Design Professionals, respectively, then the City and the
Friends shall mutually cooperate in an effort to resolve such issues as may arise
therefrom.
6) Filing of Permit Applications. The Friends will file all necessary permit applications, at
the City's cost.
7) Construction of Proiect. The City shall execute the Construction Contract with a Florida
licensed Contractor. The Construction Contract shall be substantially in the form of the
City's standard construction manager at risk agreement or such other form as the City
shall determine in its reasonable discretion. The Parties acknowledge and agree that all
payments pursuant to the Construction Contract and any other applicable Construction
Agreements for construction work, if any, shall be based on the percentage of completion
of the work covered by such agreements. The Friends shall, and shall cause the Friends
Design Professionals to, reasonably cooperate with the Contractor and involve the
Contractor in all aspects of the preparation and/or modification of the Project Plans from
and after the date on which the Construction Contract is executed and comply in all
respects with the Required Clauses.
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EXHIBIT A
8) Obligation to Enforce Friends Design Professional Agreements. The Friends will use
commercially reasonable efforts to enforce its rights under the Friends Design
Professional Agreements and to cause the Friends Design Professionals to comply with
the Friends Design Professional Agreements (including without limitation the Required
Clauses and, with respect to the Friends Design Professionals, to cause the Friends
Design Professionals to reasonably cooperate with the Contractor and coordinate with the
Contractor in connection with the preparation and/or modification of the Project Plans from
and after the date on which the Construction Contract is executed.
9) Friends Design Professional Agreements. The Friends Design Professional
Agreements shall include such terms and conditions as are negotiated between Friends
and the Friends Design Professionals, consistent with the terms of this Agreement,
including appropriate warranties. In addition:
a. All Friends Design Professional Agreements entered into by the Friends after the
Effective Date shall be subject to the City's prior written approval, which shall not
be unreasonably withheld, conditioned or delayed; provided, however, all Friends
Design Professional Agreements shall include, at a minimum, the clauses set forth
in Exhibit C (the "Recuired Clauses"). All Friends Design Professional
Agreements entered into prior to the Effective Date, and which have not yet
expired, shall be amended to include the Required Clauses. The Friends Design
Professional Agreements shall be assigned to the City pursuant to an assignment
substantially in the form of Exhibit D attached hereto and incorporated herein.
The City shall have the right (but not the obligation) to enforce all rights of the
Friends under the Friends Design Professional Agreements pursuant to the
assignments thereof and the Friends shall cause the Friends Design Professionals
to consent to such assignment. The City shall grant a license to the Friends to
perform all obligations and enforce all rights under the Friends Design Professional
Agreements. The license shall be suspended during the period of any Default by
the Friends under this Agreement.
b. The Friends Design Professional Agreements shall contain a provision whereby
the City shall be entitled to the same indemnifications by the Friends Design
Professionals as the Friends.
c. The Friends Design Professional Agreements shall provide that the City or its
designated representative shall have the same right to inspect the books and
records of the Friends Design Professionals as the Friends do.
d. The Friends Design Professional Agreements shall require the Friends Design
Professionals to fully cooperate with and assist the City in the resolution of any
issues with regard to the City's claims for defects, warranty issues, and/or other
post -construction issues contemplated herein, as they may arise.
e. Any proposed termination of a Friends Design Professional Agreement as a result
of a default thereunder by the applicable Friends Design Professional (or the
exercise of any other remedy thereunder) shall require mutual approval of the City
and the Friends, neither of which shall be unreasonably withheld, conditioned or
delayed.
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EXHIBIT A
10) Default: Remedies.
a. The following shall each be considered a default under this Agreement (a
"Default"):
i. The Friends' failure to make any undisputed, properly due and owing
payments to each Friends Design Professional under the applicable
Friends Design Professional Agreement beyond any applicable grace
period, and such failure continues fifteen (15) days after written notice
from such Friends Design Professional; or
ii. The failure of the Friends to promptly comply with any of its nonmonetary
obligations under this Agreement for more than thirty (30) days after
written notice from the other Party or such shorter time period as may be
otherwise provided herein; or
iii. A custodian, trustee or receiver is appointed for the Friends, or the
Friends becomes insolvent or bankrupt, is generally not paying its debts
as they become due or makes an assignment for the benefit of creditors,
or the Friends causes or suffers an order for relief to be entered with
respect to it under applicable Federal or state bankruptcy or insolvency
law or applies for or consents to the appointment of a custodian, trustee
or receiver for the Friends, or bankruptcy, reorganization, arrangement
or insolvency proceedings, or other proceedings for relief under any
bankruptcy or similar law or laws for the relief of debtors are instituted by
or against the Friends, provided that with respect to any involuntary
proceeding, such proceeding is not dismissed within ninety (90) days.
b. Remedies. Upon the occurrence, and during the continuance of, a Default by the
Friends hereunder, the City shall be entitled to all rights and remedies available at
law or in equity and otherwise as set forth in this Agreement. Without limiting the
foregoing, without any additional notice or demand whatsoever, the City may elect
to:
Terminate this Agreement;
Exercise and enforce the City's rights pursuant to each assignment of
Friends Design Professional Agreement;
Without terminating this Agreement, perform or cause the performance
of such obligations of the Friends, in which event (A) the Friends shall
immediately lose all approval, consultation and/or consent rights to which
it would otherwise be entitled hereunder while the Default is continuing,
(B) the Friends shall reimburse the City on demand for all costs and
expenses (including reasonable attorneys' fees) incurred by the City in
connection with such performance, and (C) the City shall not be liable for
any loss, cost, damage or liability arising out of or relating to the City's
performance of such obligations;
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EXHIBIT A
iv. Enforce strict performance by the Friends of the applicable provisions of
this Agreement; and
V. Recover damages for such Default from the Friends.
11) Indemnification of the City by the Friends.
a. The Friends shall indemnify, hold harmless and defend (with counsel approved by
the City Attorney) the City, its officers, agents, servants and employees from and
against any and all claims, liabilities, demands, causes of action, costs and
expenses (including reasonable attorneys' fees at trial and all levels of appeal) of
whatsoever kind or nature (`Claims") arising out of (i) an error, omission or
negligent act or willful misconduct of the Friends, its agents, servants, contractors,
or employees; or (ii) any default by the Friends under this Agreement; provided
that there is expressly excluded from the foregoing obligations any claims to the
extent resulting solely from the gross negligence or willful misconduct of the City,
its officers, agents (excluding the Friends), contractors (excluding the Friends) and
employees.
b. In any and all claims against the City or any of its consultants, agents, or
employees by any employee of the Friends or any employee of any person,
employee, agent, or third party acting on the Friends' behalf, the indemnification
obligation of this section shall not be limited in any way by any limitation on the
amount or type of damages, compensation, or benefits payable by or for the
Friends or by or for any person, employee, agent, or third party acting on the
Friends' behalf under workers' or workman's compensation acts, disability benefit
acts, other employee benefit acts or any other service of law.
c. This indemnification provision shall survive the expiration or earlier termination of
this Agreement.
12) Term. This Agreement shall be effective as of the Effective Date and, except as otherwise
provided herein, shall continue until the warranty period for the Project Work lapses per
the Construction Contract.
13) Notices. Except as otherwise expressly set forth herein, all notices required or permitted
to be given under this Agreement shall be in writing and shall be deemed to have been
given if delivered by hand, sent by recognized overnight courier (such as Federal Express)
or mailed by certified or registered mail, return receipt requested, in a postage prepaid
envelope, and addressed as follows:
If to the City: City of Miami Beach
Property Management Department
1755 Meridian Avenue, Suite 200
Miami Beach, Florida 33139
Attn: Director
With a copy to: City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
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EXHIBIT A
Attn: City Attorney
If to the Friends: Friends of the Bass Museum, Inc.
2100 Collins Avenue
Miami Beach, Florida 33139
Attn: Executive Director
Notices personally delivered or sent by overnight courier shall be deemed given on the
date of delivery, and notices mailed in accordance with the foregoing shall be deemed
given three (3) days after deposit in the U.S. mail by registered or certified mail. The terms
of this Section shall survive the expiration or earlier termination of this Agreement. Parties
may modify these notices through written notification to the other Parties.
14) Limitation of City's Liability.
a. The City desires to enter into this Agreement only if in so doing the City can place
a limit on its liability for any cause of action for money damages due to an alleged
breach by the City of this Agreement, so that its liability for any such breach never
exceeds the sum of $10,000. The Friends hereby expresses its willingness to enter
into this Agreement with the Friends' recovery from the City for any damage action
for breach of contract to be limited to a maximum amount of $10,000, less the
amount of all funds actually paid by the City to the Friends pursuant to this
Agreement.
b. Accordingly, and notwithstanding any other term or condition of this Agreement,
the Friends hereby agrees that the City shall not be liable to the Friends for
damages in an amount in excess of $10,000, which amount shall be reduced by
the amount actually paid by the City to the Friends pursuant to this Agreement, for
any action or claim 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 the limitation placed upon the City's liability as set forth in Section
768.28, Florida Statutes. Any tort liability to which the City is exposed under this
Agreement shall be limited to the extent permitted by applicable law and subject
to the provisions and monetary limitations of Section 768.28, Florida Statutes, as
may be amended, which statutory limitations shall be applied as if the Parties had
not entered into this Agreement, and the City expressly does not waive any of its
rights and immunities thereunder.
c. The City will not in any event whatsoever be liable for any injury or damage to the
Friends nor for any injury or damage to the Project (unless caused by the gross
negligence or willful misconduct of the City, its agents, contractors or employees).
d. Except as may be otherwise expressly provided herein, no approval to be made
by the City in its proprietary capacity under this Agreement or any inspection of the
Project by the City under this Agreement, shall render the City liable for its failure
to discover any defects or nonconformance with any governmental requirement.
e. No member, official, elected representative or employee of the City shall be
personally liable to the Friends or any of their respective successors or assigns in
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1O.W9tC1
the event of any default or breach of this Agreement by the City or for any amount
which may become due to the Friends or any of their respective successors or
assigns under this Agreement.
15)AII approvals by the City under this Agreement shall be solely in its proprietary rapacity
and not in its governmental or regulatory capacity. Nothing contained in this Agreement
shall or is deemed to limit the City's inspection rights in its governmental or regulatory
capacity and, other than as expressly required herein, the City shall not be required by
this Agreement to give its consent to any matter arising in connection with the City's
governmental or regulatory capacity in the event of an uncured violation of the relevant
standards.
16) Strict Performance: Waiver. No failure by either Party to insist upon strict performance
of any covenant, agreement, term or condition of this Agreement or to exercise any right
or remedy available to such Party by reason of the other Party's Default hereunder shall
prevent the Party from insisting upon such performance on another occasion.
17) Governing Laws, Construction and Litigation. This Agreement shall be governed 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 Parties agree that Miami -
Dade County, Florida is the appropriate and exclusive state court venue, and that the U.S.
District Court, Southern Division of Florida is the appropriate and exclusive federal court
venue, in connection with any litigation with respect to this Agreement. The Parties have
participated fully in the negotiation and preparation hereof and, accordingly, this
Agreement shall not be more strictly construed against either Party. In construing this
Agreement, captions and section headings shall be disregarded, and the use of any
gender shall include every other and all genders. All of the exhibits referenced in this
Agreement are incorporated in, and made a part of, this Agreement. When used in this
Agreement, the words "hereof," "herein" and "hereunder," and words of similar import,
shall refer to this Agreement as a whole and not to any particular provision of this
Agreement. The words "include," "includes" and "including," and words of similar import,
shall be deemed to be followed by the phrase 'without limitation" whether or not so
followed. In the event of any litigation between the Parties under this Agreement for a
breach thereof, the prevailing party shall be entitled to reasonable attorney's and paralegal
fees and court costs at all trial and appellate levels. BY ENTERING INTO THIS
AGREEMENT, THE PARTIES, EXPRESSLY WAIVE ANY RIGHTS EITHER MAY HAVE
TO A TRIAL BY JURY WITH RESPECT TO ANY CIVIL LITIGATION RELATED TO, OR
ARISING OUT OF, THIS AGREEMENT. The terms of this Section shall survive the
expiration or earlier termination of this Agreement.
18) Severability. In the event any term or provision of this Agreement is determined by an
appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given
its nearest legal meaning or construed as deleted as such authority determines, and the
remainder of this Agreement shall be construed to be in full force and effect.
19) Entire Agreement. This Agreement constitutes the entire agreement and understanding
among the Parties with respect to the subject matter hereof, and there are no other
agreements, representations or warranties other than as set forth herein. Neither Party
shall be bound by any agreement, condition, warranty nor representation other than as
Page 10 of 10
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EXHIBIT A
expressly stated in this Agreement. This Agreement may not be changed, altered or
modified except by an instrument in writing signed by both Parties.
20) Binding Effect. This Agreement shall be binding upon and enforceable by and against
the Parties, and/or their respective successors and assigns.
21)No Third Party Beneficiaries. This Agreement is not intended to, and shall not be
construed to give, any third party (including, without limitation, any third -party
homeowner's association, condominium association, or neighborhood association in the
surrounding area, or any individual members thereof) any rights or interests whatsoever;
nor is it intended that any such other third party shall be a third -party beneficiary of any
provisions hereof
22) Force Majeure. No party will be liable or responsible to the other party for any delay,
damage, loss, failure, or inability to perform caused by "Force Majeure" if notice is provided
to the other party within ten (10) days of the date on which such party gains actual
knowledge of the event of"Force Majeure" that such party is unable to perform. Any failure
by a party to promptly deliver (as appropriate under the circumstances) such notice of its
inability to perform because of Force Majeure shall be deemed a waiver of such party's
right to delay performance as a result of such Force Majeure. The term "Force Majeure"
as used in this Agreement means the following: an act of God, strike, war, public rioting,
lightning, fire, storm, flood, explosions, epidemics, pandemics, landslides, lightning
storms, earthquakes, floods, storms, washouts, civil disturbances, explosions, and any
other cause whether of the kinds specifically enumerated above or otherwise which is not
reasonably within the control of the party whose performance is to be excused and which
by the exercise of due diligence could not be reasonably prevented or overcome (it being
acknowledged that under no circumstances shall a failure to pay amounts due and
payable hereunder be excusable due to a Force Majeure). Neither party hereto shall be
under any obligation to supply any service or services if and to the extent and during any
period that the supplying of any such service or services or the provision of any component
necessary therefore shall be prohibited or rationed by any Governmental Requirements.
23)Audit Rights. The Friends shall keep full and accurate accounting books and records
relating to its portion of the Project as detailed in this Agreement, all in accordance with
generally accepted accounting principles. The Friends shall give the City such books and
records during reasonable business hours and upon reasonable advance notice. All books
and records shall be made available on -site at the Museum or electronically. The Friends
shall keep and preserve for at least five (5) years following each fiscal year, or for as long
as such records are required to be retained pursuant to Florida Public Records Law
(whichever is longer), all sales slips, rental agreements, purchase order, sales books,
credit card invoices, bank books or duplicate deposit slips, and other evidence of
expenses related to the Project paid by the Friends for such period. The City Manager
shall have the right at any time, and from time to time, to cause independent auditors or
the City's own accountants or auditors to audit all of the books of the Friends relating to
expenses of the Project paid by the Friends. All such audit costs and expenses shall be
borne solely by the City.
24) Public Records Act. The Friends shall comply with Florida Public Records law under
Chapter 119, Florida Statutes, as may be amended from time to time.
Page 11 of 18
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EXHIBIT A
IF THE FRIENDS HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO ITS
DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS
AGREEMENT, CONTAC' THE CUSTODIAN OF PUBLIC
RECORDS AT:
CITY OF MIAMI BEACH
ATTENTION: RAFAEL E. GRANADO, CITY CLERK
1700 CONVENTION CENTER DRIVE
MIAMI BEACH, FLORIDA 33139
E-MAIL: RAFAELGRANADO()MIAMIBEACHFL.GOV
PHONE: 305-673-7411
25) Inspector General Audit Rights. Pursuant to Section 2-256 of the Code, the City has
established the Office of the Inspector General which may, on a random basis, perform
reviews, audits, inspections and investigations on all City contracts, throughout the
duration of said contracts. This random audit is separate and distinct from any other audit
performed by or on behalf of the City.
The Office of the Inspector General is authorized to investigate City affairs and
empowered to review past, present and proposed City programs, accounts,
records, contracts and transactions. In addition, the Inspector General has the
power to subpoena witnesses, administer oaths, require the production of
witnesses and monitor City projects and programs. Monitoring of an existing City
project or program may include a report concerning whether the project is on time,
within budget and in conformance with the contract documents and applicable law.
The Inspector General shall have the power to audit, investigate, monitor, oversee,
inspect and review operations, activities, performance and procurement process
including but not limited to project design, bid specifications, (bid/proposal)
submittals, activities of the Consultant its officers, agents and employees,
lobbyists, City staff and elected officials to ensure compliance with the Contract
Documents and to detect fraud and corruption. Pursuant to Section 2-378 of the
Code, the City is allocating a percentage of its overall annual contract expenditures
to fund the activities and operations of the Office of Inspector General.
Upon ten (10) days written notice to the Friends, the Friends shall make all
requested records and documents available to the Inspector General for inspection
and copying. The Inspector General is empowered to retain the services of
independent private sector auditors to audit, investigate, monitor, oversee, inspect
and review operations activities, performance and procurement process including
but not limited to project design, bid specifications, (bid/proposal) submittals,
activities of the Friends, its officers, agents and employees, lobbyists, City staff
and elected officials to ensure compliance with the contract documents and to
detect fraud and corruption.
Page 12 of 18
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EXHIBIT A
The Friends shall have the right to inspect and copy all documents and records in
the Friends' possession, custody or control which in the Inspector General's sole
judgment, pertain to the design and construction of the Project, including, but not
limited to, to the extent applicable, original estimate files, change order estimate
files, wo, ksheets, proposals and agreements from and with successful
subcontractors and suppliers, all project -related correspondence, memoranda,
instructions, financial documents, construction documents, (bid/proposal) and
contract documents, back -change documents, all documents and records which
involve cash, trade or volume discounts, insurance proceeds, rebates, or dividends
received, payroll and personnel records and supporting documentation for the
aforesaid documents and records.
d. The Friends shall make available at its office at all reasonable times the records,
materials, and other evidence regarding the acquisition (bid preparation) and the
design and construction of the Project, for examination, audit, or reproduction, until
three (3) years after final payment under this Agreement or for any longer period
required by statute or by other clauses of this Agreement. In addition:
i. If this Agreement is completely or partially terminated, the Sponsor shall
make available records relating to the work terminated until three (3)
years after any resulting final termination settlement; and
ii. The Sponsor shall make available records relating to appeals or to
litigation or the settlement of claims arising under or relating to this
contract until such appeals, litigation, or claims are finally resolved.
e. The provisions in this section shall apply to the Friends, its officers, agents,
employees, subcontractors and suppliers. The Friends shall incorporate the
provisions in this section in all subcontracts and all other agreements executed by
the Sponsor in connection with the design and construction of the Project.
f. Nothing in this section shall impair any independent right to the City to conduct
audits or investigative activities. The provisions of this section are neither intended
nor shall they be construed to impose any liability on the City by the Sponsor or
third parties.
26)The Friends Compliance With Anti -Human Trafficking Laws. The Friends agrees to
comply with Section 787.06, Florida Statutes, as may be amended from time to time, and
has executed the Anti -Human Trafficking Affidavit, containing the certificefion of
compliance with anti -human trafficking laws, as required by Section 787.06(13), Florida
Statutes, a copy of which is attached hereto as Exhibit E.
27)Prohibition On Contracting With A Business Engaging In A Boycott. The Friends
warrants and represents that A is not currently engaged in, and will not engage in, a
boycott, as defined in Section 2-375 of the Code. In accordance with Section 2-375.1(2)(a)
of the Code, the Friends hereby certifies that it is not currently engaged in, and for the
duration of the Agreement will not engage in, a boycott of Israel.
represents that, within two (2) years prior to the Effective Date, it has not
Page 13 of 18
883 of 3458 DRAFT
EXHIBIT A
received compensation for services performed for a candidate for City elected office, as
contemplated by the prohibitions and exceptions of Section 2-379 of the Code.
For the avoidance of doubt, the restrictions on contracting with the City pursuant to
Section 2-379 of the City Code shall not aooly to the following:
(a) Any individual or entity that provides goods to a candidate for office.
(b) Any individual or entity that provides services to a candidate for office if those
same services are regularly performed by the individual or entity in the ordinary
course of business for ciients or customers other than candidates for office. This
includes, without limitation, banks, telephone or internet service providers, printing
companies, event venues, restaurants, caterers, transportation providers, and office
supply vendors.
(c) Any individual or entity which performs licensed professional services (including
for example, legal or accounting services).
[Signature Page to Follow]
Page 14 of 18
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EXHIBIT A
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their appropriate officials, as of the date first entered above.
ATTEST: CITY OF MIAMI BEACH, FLORIDA
Rafael E. Granado, City Clerk Eric Carpenter, City Manager
Date:
FRIENDS OF THE BASS MUSEUM, INC.
By: By.
Print Name Print Name and Title
Page 15 of 18
885 of 3458 DRAFT
EXHIBIT A
Exhibit A
Description of the Project
The planned visionary concept is to build an indoor and outdoor structure that opens its doors
and serves as a multi -use cultural space maker; a space to convene community in the form of a
gathering space, cafe, and non-traditional art exhibition space. This mufti -purpose concept would
convert the small, unattractive, and underutilized parking lot adjacent to the Museum into a social
space. This space would serve as a cultural place maker in Collins Park and offer an alternative
to other public convening destinations like the Design District or Bayfront Park near the Perez Art
Museum Miami (PAMM). This Flexible space would provide for year-round cultural programming.
Page 16 of 18
886 of 3458 DRAFT
IO3711c119-1
Exhibit B
Preliminary Project Budget
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Page 17 of 18
887 of 3458 DRAFT
EXHIBIT A
Exhibit C
Required Clauses
[to be attached]
Page 18 of 18
888 of 3458 DRAFT
EXHIBIT A
Exhibit D
Form of Assignment
[to be attau &dj
Page 19 of 18
889 of 3458 DRAFT