Sel Olaw28mtw.12 RECOMMENDED BY: THE MAYOR and BUDGET & FINANCE COMMITTEE, SUBMITTED BY: THE CITY ATTORNEY RESOLUTION NO. 2112-19 BE IT RESOLVED by the Council of the City of Birmingham that the Mayor be and hereby is authorized to execute, for and as the act of said City, a management agreement between the City of Birmingham and Birmingham Civil Rights Institute Board of Directors (BCRI Board), under which BCRI Board shall have the right to manage, operate, supervise and maintain the property known as the Birmingham Civil Rights Institute, for a term of one year, and the City shall pay the BCRI Board an amount not to exceed $1,000,000.00 annually, subject to an appropriation by the City in the corresponding fiscal year budget. AceRrirm cory ‘Adopted by the Council September 10, 2019 and Approved by the Mayor September 11, 20192112 STATE OF ALABAMA} JEFFERSON COUNTY} ‘THE BIRMINGHAM CIVIL RIGHTS INSTITUTE MANAGEMENT AGREEM) THIS AGREEMENT, made and entered into this //,_ day of Fipleabet 2019, by and between THE CITY OF BIRMINGHAM, a municipal corporation if the state of Alabama (hereinafter referred to as the “City”) and THE BIRMINGHAM CIVIL RIGHTS INSTITUTE BOARD OF DIRECTORS, a public non-profit corporation organized and existing under the laws of the State of Alabama (hereinafter “BCRI Board” or “Board”). RECITALS: WHEREAS, the City has authority pursuant to §11-47-16, Code of Alabama 1975 to establish, operate, maintain, or contract with others to operate and maintain public cultural facilities consisting of museums, art galleries, art centers, music halls, and related facilities, and, if necessary, to acquire sites for, construct, or otherwise acquire such facilities, all to the end of making cultural facilities available to the public, whether separately or grouped two ot more in the same building and whenever any such facilities shall have been so established they may be administered by and through such instrumentality or instrumentalities as may be designated for that purpose by the governing body of the City; and WHEREAS, the City believed it important to chronicle the civil rights struggles of the 1960's particularly in Birmingham, Alabama and the importance of providing an understanding of the lessons of the Civil Rights Movement, its impact and influence on human rights movements worldwide; and WHEREAS, the City dedicated vast resources for the construction of the Birmingham Civil Rights Institute “BCRI” at 520 Sixteenth Street North, Birmingham, Alabama, for the purpose of providing a building that documents the Civil Rights Movement; and WHEREAS, the BCRI showcases a walking journey through the “living institution’ which displays the lessons of the past as a positive way to chart new directions for the future, the permanent exhibitions are a self-directed journey through Birmingham's contributions to the Civil Rights Movement, Multimedia exhibitions, and an Oral History Project; and WHEREAS, the BCRI has become a major repository for archives, records, documents, and first-hand accounts for scholars and students studying the history of civil rights; and WHEREAS, since opening in 1992, the BCRI has become a leading tourist attraction for the City of Birmingham and is a community resource for meetings, seminars and workshops and WHEREAS, as a result of the combined efforts of BCRI Board and Staff, the BCRI has attained national recognition among its peers, including achieving full accreditation from the ‘American Alliance of Museums (AAM), designation as the Alabama Attraction of the Year in multiple years, selected as an Affiliate of the Smithsonian Institution — a designation that 1 19continues today, and BCRI is the featured attraction in numerous travel and tourism books and guides about the state and the region including the National Geographic’s 2013 book, “Places ‘That Can Change your Child’s Life,” Trip Advisor, and the Best of Birmingham; and WHEREAS, the BCRI is part of the Birmingham Civil Rights National Monument, established on January 12, 2017, by then President Barack Obama as part of the National Park Service, to be promote, in perpetuity, a comprehensive understanding and appreciation for the significance of the civil rights history in Birmingham and with an increasing emphasis on the international struggle for universal human rights; and WHEREAS, the City desires the BCRI Board of Directors to continue the management of the Birmingham Civil Rights Institute property for the good of the general public. NOW, THEREFORE, in consideration of the mutual covenants and Agreements herein contained, the BCRI Board and the City agree as follows subject to the term of the Agreement: 1. Scope of Services. Upon the terms and conditions hereinafter set forth, the City hereby grants to the Board the right to manage, operate, supervise and maintain the property known as the Birmingham Civil Rights Institute located a 520 Sixteenth Street North, Birmingham, AL 35203, together with all land and buildings and improvements located thereon with the exception of shared use of the parking lot behind the AG Gaston Motel; and the BCRI Board hereby accepts from the City the management of all properties comprising. the Birmingham Civil Rights Institute. The Board acknowledges without reservation that the City holds and shall hold the title to the real property (BCRI) and the surrounding grounds. The Board agrees to manage and operate the BCRI in the most efficient manner consistent with operations of other similar first class facilities, as more fully set forth in Exhibit A, Scope of Services. 2, Term. The term of this Agreement shall be for one (1) year commencing July 1, 2019 and ending June 30, 2020 (the “Term”), The Board shall have the sole right of possession and use of the BCRI property during the term of the Agreement, The Board shall submit an end of the year report to the City Council. 3. Compensation. ‘The City shall provide operational funding to the Board under this Agreement the sum of One Million and 00/100 Dollars ($1,000,000.00). The City shall pay the Board in equal quarterly installments, following the City’s receipt of an invoice from the Board, on the first days of July, October, January and April: provided that the first quarterly installment shall be due thirty (30) days following the effective date of City Council approval of this Agreement, 4. Operational Funding. The Board shall use all funds for costs incurred in the operating, improvement, upkeep and non-capital maintenance expenses of the BCRI (including exhibits contained therein). At such times as the City deems it necessary, additional funds may be appropriated for use by the Board for special needs of the facilities with the approval of the City Council. Should any additional funds be allocated to the Board by the City for operating expenses during a renewal term of this Agreement, such funds shall be used by the Board consistent with the terms and conditions of this Agreement. The Board agrees that annually, on a date specified by the Mayor or his designee and in a format established by the City, prepare andpresent to the Mayor a line item budget for the BCRI, and such additional reporting as may be requested by the Mayor. The City encourages BCRI to seck and develop partnerships consistent with its mission to obtain additional funding to accomplish its goals. 5. Capital Funding. The Board shall throughout the term of the Agreement, make all repairs necessary to maintain the BCRI in good order and condition, whether such repairs are interior or exterior, structural or non-structural, ordinary or extraordinary, foreseen or unforeseen. BCRI may make an annual request for capital improvements to maintain the facility and prevent deferred maintenance. Requests would be made for the Capital Budget funding of the City of Birmingham, subject to a recommendation and appropriation by the City. Funding, for capital improvements must meet the City’s requirements for capital expenditures and require prior approval before any work is undertaken. The City shall have no obligation whatsoever to make any repairs or do any work on or about the BCRI, except as provided herein below. ‘The Board shall have no right to sell or otherwise dispose of any land comprising any part of the BCRI without the express prior written consent of the City. Nothing contained herein is meant to prohibit or discourage the Board from obtaining additional funding from other public and private sources to assist in accomplishing the goals of the BCRI and the City in the management of the BCRI. ‘The Board shall provide the Mayor or his designee a schedule of items that may be reasonably anticipated as necessary capital expenditures. The purpose of such a schedule is to allow the City to consider for inclusion such projects in its budget for the ensuing year and to prepare and update a long range capital expenditure budget. Alll routine repairs, maintenance, and equipment servicing shall be the responsibility of the Board as an operating expense, 6. Permitted Use of the BCRI. The Board is permitted to use and occupy the BCRI for the following purposes: (a) For the purpose of managing BCRI as a major tourist attraction. (6) For the purpose of operating an establishment which shall be generally open to the public; (©) For the purpose of collecting, storing, cataloguing, preparing and displaying various collections of items of academic or public interest related to civil and human rights movement particularly the history of African Americans; (@)__ For the purpose of designing, constructing, assembling and displaying various exhibits of academic or public interest relating to the arts and humanities; (©) For the purpose of education, including both public and private education, and also to include both on-site education and support of off-site educational activities; () For the purpose of research into matters of academic and public interest to include both on-site research and support of off-site research activities; (@) For the purpose of public or private exhibitions, meetings or functions; and(h) For sub-lease, franchise, concession or otherwise upon prior written approval of the City, so long as such activities are undertaken in compliance with provisions of Section 5 hereof or any amendment thereto. 7. Programmatic Initiatives. The parties hereby agree, the Board shall work cooperatively with the City, through the Mayor or his designee, to support programmatic initiatives that align with BCRI’s mission and the City’s strategic social justice initiatives. ‘Notwithstanding the other terms hereof, the City shall have the right and authority to reasonably use and occupy the premises and/or to cause or permit others to reasonably use and occupy the premises, for such period being at a time which does not interfere with the general operations of the BCRI or prior events and functions previously scheduled by the Board. Events sponsored under the auspices of the Birmingham Civil Rights National Monument as well as revenue-generating activities take precedence. The City shall give the Board a prior written notice of its request to use the facilities as reasonably practicable. Such notice shall reasonably describe the preferred area to be used, the time of such usage by or under the City. Prior to giving such notice the City shall contact the BCRI to establish the date that the premises will be available. Direct cost (out-of-pocket expenses such as security, etc.) for such use shall be reimbursed by the City. Notwithstanding the foregoing, the parties agree to work cooperatively to mitigate any and all direct costs. 8. Authorization. The Board agrees to permit the City and its authorized representatives to enter the BCRI at any time for the purpose of assessment and to ensure safety of same, The police power of the City shall also extend to and throughout the building. The City shall have access to every part of the premises for the purpose of general assessment and visitation at all reasonable time. Throughout the term of this Agreement, the Board shall be solely responsible for and shall promptly pay all charges for water and sewer services and all costs and charges for gas, heat, light, electricity, telephone and any other utility service used or consumed in or serving the BCRI and all other costs and expenses involved in the care, repair, management and use thereof. 9. Default. For purposes hereunder, an event of default shall be defined as the Boar’s breach or violation of any term or condition of this Agreement and the failure of the Board to cure the same within thirty (30) days after written notice of such default from the City. Ifany breach or violation cannot be cured or remedied within such thirty (30) day period, then the Board shall have a longer period to cure such default provided: (i) it demonstrates its diligence in the commencement and prosecution of the obligation up to the time of default, commences efforts to cure the breach of violation within such thirty (30) day period and, (iii) thereafter, it diligently prosecutes to completion all steps necessary to cure and remedy such breach or violation. Upon the occurrence of an event of default by the Board, the City may, in its discretion, pursue any one or more of the following remedies without any notice or demand whatsoever, other than any notice expressly provided for in this Agreement (i) seek and obtain injunctive relief or declaratory relief; (ii) terminate this Agreement; or (iii) exercise any and all other remedies available to the City at law or in equity. Anything herein to the contrarynotwithstanding, the City shall in no event be responsible or liable for consequential, exemplary or punitive damages as a result of any act or omission in connection with this Agreement. No delay or omission by the City to exercise any right or power accruing upon any event of default shall impair any such right or power or shall be construed to be a waiver thereof but any such right or power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the City to exercise any remedy reserved to it in this Section, it shall not be necessary to give any notice, other than such notice as is herein expressly required. Further, the City shail have the unqualified right to terminate this Agreement on thirty (30) days notice to the Board for any reason or for no reason and no liability shall accrue to any party hereto in the event the City terminates the Agreement without cause. With respect to this ‘Agreement, termination “with cause” shall mean any termination by the Board or the City which is instituted due to the other party’s failure to perform any of its obligations hereunder after the expiration of any applicable cure; and termination “without cause” shall mean any termination by the Board or the City which is instituted in the absence of the other party's failure to perform its obligations hereunder. 10. Notice of Termination. Upon written notice, this Agreement may be terminated immediately with cause by either party, upon the occurrence of any one of the following: (i) the filing by such other party of a voluntary petition in bankruptcy or insolvency or ‘a petition for reorganization under any bankruptcy law; (b) the consent by such other party to an involuntary petition in bankruptcy; (iii) the entering of an order, judgment or decree by any court of competent jurisdiction, on the application of a creditor, adjudicating such other party bankrupt or insolvent, or approving a petition seeking reorganization, or appointing a receiver, trustee, or liquidator for all or a substantial part of such party's assets which order, judgment, or decree shall continue unstayed and in effect for any period of sixty (60) consecutive days; or (iv) the insolvency of such other party by reason of being unable to pay debts as they mature, 11. Termination for Cause. In addition to the right to terminate pursuant to this ‘Article, the City shall have the right to terminate this Agreement with cause upon reason of the Board's breach, default, or non-compliance with regard to any covenants contained in this Agreement upon failure of the Board either remedy such breach, default, or non-compliance within thirty (30) days after receipt of notice thereof from the Board (or within ten (10) days in case of monetary default,) or, in the event of a non-monetary default reasonably requiring longer than thirty (30) days after receipt or notice of default, and thereafter continue diligently to complete said cure. 12, Waiver. The Failure of either party to insist upon strict performance of a covenant or any obligation hereunder shall not be a waiver of such party's right to demand strict compliance therewith in the future, nor shall the waiver of any one event of default be constructed as the waiver of any other event of default be construed as the waiver of any other event of default. 13, Indemnification and Insurance. The Board shall indemnify and hold harmless the City from and against any and all claims arising from the Board's operation of the BCRI, or from any activity, work, or things done, permitted or suffered by the Board in or about the BCRI; and shall further indemnify and hold harmless the City from and against any and all claims arisingfrom any breach or default in the performance of any obligation on the Board’s part to be performed under the terms of this Agreement, or arising from any negligence of the Board, or any of the Board's directors, officers, agents or employees; and from and against all costs, attorneys’ fees, expenses and liabilities incurred in the defense of any claim or any action or proceeding brought thereon, and in case any action or proceeding be brought against the City by reason of any such claim, the Board upon notice from City, shall defend the City at the Board's expense by counsel satisfactory to City. The Board, as a material part of the consideration to the City, hereby assumes all risk of damage to property or injury to person, in, upon or about the said establishments arising from any cause and the Board hereby waives all claims with respect thereof against City. The Board hereby agrees to maintain liability insurance in the amount of One Million Dollars ($1,000,000) combined single limit coverage and Three Million Dollars ($3,000,000) aggregate to cover any and all claims which may arise as heretofore set forth and to provide proof of same to the City on a yearly basis by copies of policies or certification of insurance with an insurance company approved of by the City and licensed by the State of Alabama to be on file with the Office of the City Clerk with a thirty (30) day notice of cancellation provided to the City. 14, Assignment. This Management Agreement nor any rights or privileges herein granted shall be assigned, transferred or partially assigned or transferred by the Board, without prior written consent of the City duly authorized by resolution of the City Council, Any instrument purporting or attempting to assign such interest of the Board shall be void. 15. Notice. All notices required or permitted to be given to this Agreement shall be in writing and delivered personally or sent by registered or certified mail, return receipt requested, or by generally recognized, prepaid, overnight air courier services. All notices to either party shall be deemed to have been provided when delivered, if delivered personally or refused by those individuals or entities addressed below. The designation of the individuals to be so notified and the addresses of such persons or entities for the purpose of notice may be changed from time to time by a written notice to the other party which shall be deemed effective ten (10) days after such notice of change is furnished to the other party To BCRI Board of Directors ‘Andrea L. Taylor, President & CEO Birmingham Civil Rights Institute 520 Sixteenth Street North Birmingham, Alabama 35203 205-328-9696 E: ataylor@beri.org, To the City: City of Birmingham City Clerk’s Office 710 North 20" Street, 300 Birmingham, Alabama 35203with copy to: City Attorney City of Birmingham, Alabama 710 North 20" Street, Room 600 Birmingham, Alabama 35203 16. General and Miscellaneous. This Agreement, and the rights and remedies of the parties hereunder shall be construed, interpreted, governed and enforced in accordance with the Jaws of the State of Alabama, The Board represents, warrants, and covenants that it has full right and power to execute this Agreement and the Board, on performing the covenants and Agreements herein contained, shall enjoy all rights and benefits available to it under this ‘Agreement. No waiver of any default nor any extension of time granted by either party to the other for any purpose whatsoever shall be held or deemed to be a waiver of any provision or term of this Agreement or of any default thereafter occurring. 17. Audit. Board agrees to furnish (at no cost) to the Ditector of Finance of the City and the Internal Audit and Contract Compliance Division of the Mayor's Office any and all information which may be requested regarding the use and expenditure of funds paid by the City to Board and to allow audits by the Internal Audit and Contract Compliance Division of the Mayor's Office and the Director of Finance of the City (or his/her designee) of such funds. ‘The Board shall at the request of the City, provide at a time and place designated by the City, all books and records, accounts, statements and other documents as needed by the City to enable it to conduct a financial and/or operational review or audit of Board's operations and/or finances. Ifthe Board refuses to honor the City’s request within ten (10) days, it shall refund to the City all funds appropriated to it during the term of this Agreement. All reports, evaluations, financial data and audits required of the Board shall be provided by the entity to any person appointed by the Mayor or his designee. The City of Birmingham's Internal Audit and Contract Compliance Division of the Mayor's Office shall have the right to monitor this Agreement for compliance through its duration. This provision shall survive this Agreement for a term of three (3) years following its termination. ‘The Board agrees that it will institute and maintain general acceptable accounting procedures adequate to fully document the uses of all funds paid by the City to the Board and will allow such audit as the City may desire. Receipts and disbursal of City of Birmingham funds should be maintained in separate accounts at all times by the Board with reasonable financial records supporting such amounts. Alll funds awarded to the Board must be expended within the Agreement period. All funds not expended must be returned to the City in the form of cash or certified check and clearly disclosed in the Board's funding proposal to the City for the next fiscal period. The City shall retain the right to reduce future funding by the amount of accumulated unspent funds from previous periods. 18. Modifications. This Agreement may not be modified without the written consent of both the City and Board subsequent to the date hereof. 19. Complete Agreement. This Agreement contains the complete Agreement of the parties with respect to the management and operation of the BCRI and the matters and things referred to herein in connection therewith.20. Binding Parties. _The provisions of this Agreement shall be binding on and inure to the benefit of the parties, their legal representatives, successors and permitted assigns. The foregoing reference to successors and assigns is not intended to constitute consent 10 assignment by either party, but has reference only to those instances in which a party may have given written consent to a particular assignment, 21. Independent Contractor. ‘Neither the Board nor its employees are considered to be employees of the City for any purpose whatsoever. The Board further agrees that neither it nor its employees are entitled to any employment benefits from the City whether under the provisions of the Workers’ Compensation Act of the State of Alabama, the provisions of the Merit System as now enacted or hereafter amended or any employment laws, rules or regulation, 22. Third Party Beneficiary. The provisions of this Agreement are not intended and do not inure to the benefit of any third party. This Agreement is not intended to be a joint venture of the parties hereto. 23. Severability. If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated by such partial invalidity. 24. Right to Deduct. The Board acknowledges and agrees the City has the right to deduct from the total amount of consideration to be paid, if any, to the Board under this Agreement all unpaid, delinquent, or overdue license fees, taxes, fines, penalties and other amounts due the City. 25. Immigration Act Compliance. (a) The Board represents and warrants that it does not knowingly employ, hire for employment, or continue to employ an “unauthorized alien”, as defined by the Beason-Hammon Alabama Taxpayer and Citizen Protection Act, Act No. 2011-535 (H. B. 56) (the “Act”) and that during the performance of this Agreement, the Board shall participate in the E-Verify program and shall verify every employee that is required to be verified according to the applicable federal rules and regulations. (b) The Board agrees to require all subcontractors providing work hereunder to comply with all applicable provisions of the Act. The Board represents and warrants that the Board shall not hire, retain or contract with any subcontractor which the Board knows is not in compliance with the Act. () By signing this Agreement, the contracting parties affirm, for the duration of the Agreement, that they will not violate federal immigration law or knowingly employ, hire for employment, or continue to employ an unauthorized alien within the State of Alabama.(@ Furthermore a contracting party found to be in violation of this provision shall be deemed in breach of the Agreement and shall be responsible for all damages resulting therefrom. 26. Historically Under-utilized Business Enterprises. Lobbyists acknowledge and agree that the City, as a matter of public policy, encourages participation of minority- and ‘women-owned and other disadvantaged business enterprises to the maximum extent possible. This policy includes historically under-utilized business enterprises such as architectural firms, engineering firms, investment banking firms, other professional service providers, and construction contractors as part of the City’s business, economic and community revitalization programs. 27. Contract Compliance. The Board agrees that at all times it shall comply with all Federal, State, and local laws, statutes, regulations, ordinances, rules, and orders. The Board acknowledges and agrees that it is solely responsible for ensuring its compliance with such laws. 28. Applicable Law: Venue. This Agreement shall be construed and interpreted in accordance with the laws of the State of Alabama and, in the event of dispute the venue of any action brought hereunder shall be in Circuit Court of Jefferson County Alabama, IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written. CITY OF BIRMINGHAM BY: L. Woodfin, Gary Cie BIRMINGHAM — CIVIL __ RIGHTS INSTITUTE BOARB@F DIRECTORS WIT SS: ice President of Approved as to form: 2alzor9 int AttorneyEXHIBIT A SCOPE OF SERVICES Scope of Work in General. The Board shall provide operation services at the BCRI, including without limitation collections care, management of BCRI’s archives, exhibitions, educational programs, and building stewardship. Specific BCRI Management Duties. Subject only to the limitations set forth in this Agreement, the Board shall have, and hereby agrees to undertake and assume, full and complete control and discretion in the management and operation of the BCRI du ig the term of this Agreement, to include but not limited to the following: (a) (b) ©) (d@) ©) oO (g) (h) @ @ (k) Employ, pay, supervise, and discharge all employees as deemed necessary by Board for the operation of the BCRI; Adopt and implement all policies relating to the acquisition, accession, loan, care, storage, deaccession, and disposal of materials/collection in accordance with the standards defined by the American Alliance of Museums; Adopt and implement the exhibition, interpretation, display and public access of ‘materials/collection in accordance with the standards defined by the American Alliance of Museums; Adopt and implement the historical, educational and research policies, programs and activities of the BCRI; Properly maintain all materials/collection inventory records, accession records, condition assessment and conservation records, and exhibition records: Adopt and implement the budgetary and fiscal policies of the BCRI, including the establishment of admission fees and other fees and charges for other program services; Keep and maintain the financial books and records of the BCRI in accordance with generally accepted accounting principles; ‘Adopt and implement the building and maintenance policies for the BCRI; Adopt and implement the best practices for building stewardship of the BCRI;, Adopt and implement policies relating to the ancillary activities and services offered at the BCRI, Adopt and implement policies relating to the promotion and publicity of the BCRI. In performing its duties, the Board shall exercise the same degree of care and skill exercised by nonprofit corporate owners and managers of similar local/regional history museums and 10o (m) (n) ©) Institutes in the United States and shall comply in all material respects with all laws applicable to the conduct of its business and the use and operation of the BCRI; ‘The Board shall operate the BCRI as a facility open to the general public, subject to such reasonable rules and regulations as the Board may promulgate in its discretion from time to time regarding matters that include without limitation admission fees; days and hours of operation; the safety of employees and the general public; the safety, protection and security of the facility; the anonymity of donors who desire anonymity; and, to the extent required by law, the confidentiality of employee records and business records: ‘The Board shall have full responsibility for the maintenance, care, documentation and use of the facility. The accession and deaccession of items as well as their management, care, documentation and use shall be governed by Board and in accordance with standards defined by the American Alliance of Museums. The personal property and/collection will be used for exhibitions, research and public programs at the discretion of the Board in accordance with its mission and in order to provide museum services to the City; Alll services required under this Agreement shall be performed by the Board or under its supervision. The Board shall employ at its own expense all personnel required to perform BCRI’s services under this Agreement in a timely and proper manner. Such personnel shall not be considered contractors or employees of the City, and the City shall have no responsibility or liability whatsoever to any of the Board’s personnel, or for their acts or omissions; and The Board shall credit the City of Birmingham for its support of the BCRI in all publicly disseminated printed, social media, and online materials/documents which provide for such credits, iW