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HomeMy WebLinkAboutExhibit 1GRANT ACCEPTANCE AGREEMENT between Cundo Bermudez Museum and Gallery and the City of Miami This Grant Acceptance Agreement_ ("Agreement") is made this day of , 2011 (the "Effective Date"), by and between the City of Miami, a municipal corporation of the State of Florida, located at 444 S.W. 2nd Avenue, 10th Floor, Miami,Florida 33130 ("CITY") and Cundo Bermudez Museum and Gallery, a Florida corporation,whose principal address is 11041 SE 43 Lane, Miami, Florida 33165 ("BENEFACTOR"). RECITALS A. WHEREAS, the BENEFACTOR has indicated an interest in making a grant of Flora la Recogedora de Suenos (the "Sculpture"), and funding, including capital improvements to installation site its delivery and installation; and B. WHEREAS, the BENEFACTOR values the Sculpture at $1,000,000; nad, C. WHEREAS, the Miami City Commission, pursuant to Resolution No. adopted on 2011 (a copy of which is attached hereto as "Attachment A") has authorized the City Manager to enter into this Agreement with BENEFACTOR who will be responsible for the delivery and installation of the Sculpture; and D. WHEREAS, BENEFACTOR's Board of Directors has authorized BENEFACTOR to enter into and to undertake the responsibilities and obligations under this Agreement pursuant to its corporation resolution adopted on , 2011 (a copy of which is attached hereto as "Attachment B"). 175808 .kiLG ((-6,Y3 1 NOW, THEREFORE, the parties hereto covenant and agree in consideration of the mutual covenants and promises herein contained, as follows: TERMS 1. RECITALS AND INCORPORATIONS. The recitals are true and correct and are hereby incorporated into and made a part of this Agreement. The description of the AREA (described below) is hereby incorporated into, made a part of this Agreement, and attached hereto as Attachment "C". The description of funding, installation, maintenance and capital improvements ti the installation site is hereby incorporated into, made a part of this Agreement, and attached hereto as Attachment "D". 2. GRANT AND MAINTENANCE. A. The BENEFACTOR agrees to grant the Sculpture ("GRANT") to be installed in the area known as the, Bicentennial Park "deep water slip" ("AREA") as more particularly described in Attachment "C". B. BENEFACTOR hereby grants funding for and agrees to provide for the delivery, installation and capital improvements to installation site of the Sculpture approved by CITY and provided by the BENEFACTOR. C. BENEFACTOR represents to the CITY that: (i) it possesses or it will require all individuals, subcontractors, and/or businesses creating, and/or providing capital improvements to the installation site and/or installing the Sculpture to posses all qualifications, licenses and any particular expertise required for the performance of such tasks, including but not limited to full qualification to do business in Florida and all required licenses for working in the State of Florida. Miami -Dade County, 175808 2 and the City of Miami; (ii) it is not delinquent in the payment of any sums due the City, including payment of permits, fees, occupational licenses, etc., nor in the performance of any obligations to the City, (iii) all individuals, subcontractors, and/or businesses assigned to perform the tasks are and shall be, at all times during the term hereof, fully qualified and trained to perform the tasks assigned to each; (iv) the tasks will be performed in the manner, at such times, and for the budgeted amounts . described . in Attachment ."B", and (v) each person executing this Agreement on behalf of BENEFACTOR has been duly authorized to so execute the same and fully bind BENEFACTOR as a party to this Agreement. 3. FUNDS. The BENEFACTOR agrees to fund the creation, the capital improvements to the installation site, the delivery and the installation of the Sculpture. The CITY agrees to fund the ongoing maintenance of the Sculpture. 4. USE OF AREA. The CITY agrees to provide the BENEFACTOR limited, non-exclusive use of the AREA, during normal hours of operation, for the delivery, capital improvements to the installation site and installation of the Sculpture. The CITY reserves the right to deny BENEFACTOR to access, to enter, or to remain in the AREA for reasonable cause. 5. REMEDIES FOR NON-COMPLIANCE. If the BENEFACTOR materially fails to perform any of its obligations or covenants hereunder, or materially breaches any of the terms contained herein, then the CITY shall have the right to take one or more of the following actions: (a) Deny BFNEFACTOR use of the AREA, or 175808 1 (b) Terminate this Agreement, or (c) Take other remedies that may be legally advisable. 6. TERMINATION FOR CONVENIENCE. The CITY retains the right to terminate this Agreement at any time without penalty to the CITY. The CITY may terminate this Agreement by notice to the BENEFACTOR at any time in the CITY's sole discretion without penalty to the City. 7. CONFLICT OF INTEREST. The BENEFACTOR has received copies of, and is familiar with the following provisions regarding conflict of interest in the performance of this Agreement by the BENEFACTOR. The BENEFACTOR covenants, represents and warrants that it will comply with all such conflict of interest provisions. Pursuant to City of Miami Code Section 2-611, as amended ("City Code"), regarding conflicts of interest, The BENEFACTOR hereby certifies to the CITY that no individual member of the BENEFACTOR, no employee, and no subcontractor under. this Agreement nor any immediate family member of any of the same is also a member of any board, commission, or agency of the City. The BENEFACTOR hereby represents and warrants to the CITY that throughout the term of this Agreement, the BENEFACTOR, its employees, its board members, and its subcontractor will abide by this prohibition of the City Code. 8. INDEMNIFICATION. The BENEFACTOR shall indemnify and save harmless the CITY, its agents, officers, and employees from and against any and all claims, liabilities, losses, and causes of action which- may arise out of the BENEFACTOR'S` performance under this 175808 4 Agreement, including all acts or omissions to act on the part of the BENEFACTOR and any of its contractors/subcontractors, employees, agents and any person acting for or on their behalf; and from and against any and all costs, attorney's fees, expenses and liability in relation to any orders, judgments or decrees which may be entered against the CITY; and all costs, expenses and liabilities incurred by the CITY in connection with the defense of any such claims or in the investigation thereof. 9. INSURANCE. A. The BENEFACTOR shall not be required to maintain insurance coverage under this Agreement. Notwithstanding, the BENEFACTOR understands and agrees that any and all liabilities regarding the use of any of the BENEFACTOR's employees, board of directors, or any of the BENEFACTOR's subcontractors for tasks related to this Agreement shall be borne solely by the BENEFACTOR throughout the term of this Agreement and that this provision shall survive the termination of this Agreement. B. Compliance with the foregoing requirements shall not relieve BENEFACTOR of its liabilities and obligations under this Agreement. 10. AMENDMENTS. No amendments to this Agreement shall be binding on either party, unless in writing and signed by both parties. 11. OWNERSHIP OF DOCUMENTS. All documents developed by the BENEFACTOR or at its request pursuant to this Agreement shall be delivered to the CITY upon completion of the work, receipt of the Sculpture, and as otherwise contemplated by this Agreement, and shall become the property of the CITY, without restriction or limitation.on its use. The BENEFACTOR 175808 5 agrees that all documents maintained and generated pursuant to this Agreement shall be subject to all provisions of the Public Records Law, Chapter 119, Florida Statutes. It is further understood by and between the parties that any documents which are given by the CITY to the BENEFACTOR pursuant to this Agreement shall at all times remain the property of the CITY, and shall not be used by the BENEFACTOR for any other purposes whatsoever, without the written consent of the CITY. 12. NON-DELEGATABILITY. The obligations of the BENEFACTOR under this Agreement shall not be delegated or assigned to any other party by the BENEFACTOR without the CITY's prior written consent which may be withheld by the CITY, in its sole discretion. 13. MISCELLANEOUS. A. This Agreement shall be construed and enforced according with all applicable laws, ordinances and codes of U.S. Federal, State of Florida, and local governments. Venue in any proceedings between the parties shall be in Miami -Dade County, Florida. Each party shall bear its own attorney's fees. Each party waives any defense, whether asserted by motion or pleading, that the aforementioned courts are an improper or inconvenient venue. Moreover, the parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction. The parties irrevocably waive any rights to a jury trial. B. Title and paragraph headings are for convenient reference and are not a part of this Agreement. 175808 6 C. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. D. Should any provision, paragraph, sentence, word or phrase contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida or the City of Miami, such provision, .paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable, then the same shall be deemed severable, and in either event, the remaining tetins and provisions of this Agreement shall remain unmodified and in full force and effect or limitation of its use. E. In the event of conflict between the terms of this Agreement and any terms or conditions contained in any attached documents, the terms of this Agreement shall rule. F. The BENEFACTOR shall comply with all applicable laws, rules and regulations in the performance of this Agreement, including but not limited to licensure, and certifications required by law, if any, for the BENEFACTORs of the brass plates, head busts, and tasks contemplated by this Agreement. 14. NOTICES: All notices or other communications which shall or may be given pursuant to this Agreement shall be in writing and shall be delivered by personal service, or by registered mail, addressed to the party at the address indicated herein or as the same may be changed from time to time. Such notice shall be deemed given on the day on which personally served; or, if by mail, on the fifth day after being posted, or the date of actual receipt, whichever is earlier. 175808 CITY OF MIAMI CITY MANAGER 444 S.W. 2ND AVENUE, 10th Floor MIAMI, FL 33130 With copies to: Tim Schmand Executive Director Bayfront Park Management Trust 301 N. Boulevard Miami, Florida 33132 City Attorney, City of Miami 444 S.W. 2nd Avenue, 9th Floor Miami, Florida 33130 Cundo Bermudez Museum and Gallery, Inc. Attn: 15. INDEPENDENT CONTRACTOR. The BENEFACTOR, its contractors, subcontractors, and its employees and agents shall be deemed to be independent contractors, and not agents or employees of the CITY, and shall not attain any rights or benefits under the Civil Service or Pension Ordinances of the CITY, or any rights generally afforded classified or unclassified employees; further, they shall not be deemed entitled to the Florida Workers' Compensation benefits as employees of the CITY. 16. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the parties hereto, and their respective heirs, executors, legal representatives, successors, and assigns. 17. FORCE MAJEURE. A "Force Majeure Event" shell mean an act of God, act of governmental body 175808 8 or military authority, fire, explosion, power failure, flood, storm, hurricane, sink hole, other natural disasters, epidemic, riot or civil disturbance, war or terrorism, sabotage, insurrection, blockade, or embargo. In the event that either party is delayed in the performance of any act or obligation pursuant to or required by the Agreement by reason of a Force Majeure Event, the time for required completion of such act or obligation shall be extended by the number of days equal to the total number of days, if any, that such party is actually delayed by such Force Majeure Event. The party seeking delay in performance shall give notice to the other party specifying the anticipated duration of the delay, and if such delay shall extend beyond the duration specified in such notice, additional notice shall be repeated no less than monthly so long as such delay due to a Force Majeure Event continues. Any party seeking delay in performance due to a Force Majeure Event shall use its best efforts to rectify any condition causing such delay and shall cooperate with the other party to overcome any delay that has resulted. 18. ENTIRE AGREEMENT. This instrument and its attachments constitute the sole and only agreement of the parties hereto relating to said GRANT, funding, installation, and maintenance of brass plates and head busts in the AREA, and correctly sets forth the rights, duties, and obligations promises, negotiations, or representations not expressly set forth in the Agreement are of no force or effect. 175808 9 IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by the respective officials thereunto duly authorized on the first date above written. ATTEST: (AFFIX SEAL) Name: Cundo Bermudez Museum and Gallery, a Florida corporation BY: Name CORPORATE SECRETARY PRESIDENT CITY OF MIAMI, a municipal corporation of the State of Florida ATTEST: BY: PRISCILLA A. THOMPSON, CITY CLERK JOHNNY MARTINEZ, P.E. CITY MANAGER APPROVED AS TO INSURANCE APPROVED AS TO FORM AND REQUIREMENTS: CORRECTNESS: CALVIN ELLIS, INTERIM RISK MANAGEMENT ADMINISTRATOR JULIE 0. BRU CITY ATTORNEY 175808 10 ATTACHMENT A CITY'S Resolution No. , adopted , 20 To be attached upon document execution 175808 11 ATTACHMENT B Corporate Resolution WHEREAS, Municipality of Camaguey in the Exile Corporation, a Florida not - for -profit corporation, desires to enter into a Grant Acceptance Agreement with the City of Miami, a copy of which is attached hereto; and WHEREAS, the Board of Directors at a duly held corporate meeting has considered the matter in accordance with the Articles and By -Laws of the not -for -profit corporation; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS that the President and Secretary are hereby authorized and instructed to enter into the Grant Acceptance Agreement and undertake the responsibilities and obligations as stated in such proposed Agreement in the name and on behalf of this not - for -profit corporation with the City of Miami upon terms and conditions contained in the proposed Agreement to which this resolution is attached. DATED this ATTEST: day of ,2011. CORPORATE SECRETARY Print Name: PRESIDENT Print Name: (CORPORATE SEAL) 1758u8 12 ATTACHMENT C Description of Area To be attached upon document execution 175808 13 ATTACHMENT D Schedule of funding, installation and maintenance To be attached upon document execution 175808 14