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4218568.7
Agreement
This Agreement (the Agreement), dated as of _________________ by and among the
Missouri Historical Society, a Missouri not for profit corporation, with offices located at
[ADDRESS] (MHS) and The City of St. Louis, Missouri, a constitutional charter city of the State
of Missouri[[, acting through its Board of Public Service]] (the City). For the sole purpose of
recognizing that it intends to make a gift to MHS for the benefit of the City sufficient to pay for the
project which is the purpose of this Agreement, Soldiers Memorial, LLC, a Missouri limited liability
company, (LLC) is also a signatory, but not a party, hereto. The Effective Date of this
Agreement shall be the later of the date set forth above and the delivery of the Gift (defined in
Section 5) from LLC to MHS.
WHEREAS, the City owns a collection of military-related objects, which are of both local
and national historical significance, including photographs, posters and printed materials, uniforms,
flags, medals, firearms, edged weapons and a range of war-time memorabilia from both the battle
front and the home front (the Materials); and
WHEREAS, the Materials are currently stored and cared for at the Soldiers Memorial
Military Museum (the Museum), a City-owned facility located in the City of St. Louis; and
WHEREAS, the Materials are currently in need of inventory and process, the City and the
Museum have determined that it would be in the best interest of the City and its citizens to cause the
Materials to be professionally inventoried and processed; and
WHEREAS, MHS has extensive experience in the inventorying and processing of historical
materials such as the Materials; and
WHEREAS, pursuant to Section 70.220 RSMo, municipalities and private entities are
authorized to contract and cooperate for a common service; and
WHEREAS, by a separate Gift Agreement, LLC wishes to make a contribution to MHS for
the direct benefit of the City in order to permit the inventory and processing of the Materials to
occur, and such contribution is recognized by, and acceptable to, (i) the City as appropriate to its
governmental purpose and is exclusively for its public purposes and (ii) the Museum as appropriate
to its charitable mission; and
WHEREAS, the City desires to engage MHS to inventory and process the Materials as more
specifically set forth in this Agreement;
WHEREAS, MHS is willing to inventory and process of the Materials.
NOW, THEREFORE, it is agreed among the parties as follows:
1. Engagement. It is hereby agreed among the parties that the City hereby engages MHS,
pursuant to the terms of this Agreement, to provide certain services with respect to the
Materials. These services shall consist of:
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4218568.7
(a) Under the direction of MHS, the designated MHS project team will inventory and
process the Materials. Collections currently not on exhibition will be moved to a
processing secure space provided by the City, as more fully set forth in Section 3.
(b) Once the Materials have been delivered to the Space, MHS will create a collections
management guide for the Materials, which will include a process for the inventory
and control including controlled vocabulary, meta data guidelines, procedures for
processing legacy data and general collections management procedures.
(c) The MHS project team will then inventory and process the Materials, which will
include:
(i) Providing a record of each artifact or archival item, including:
(1) Assigning each separate part of the Materials a unique identification
number;
(2) Recording all historical identification numbers and tags;
(3) Providing a description of the Material;
(4) Measuring the Material; and
(5) Photographing all 3-D artifacts and scanning archival Materials
(where appropriate) for identification purposes;
(ii) Basic rehousing of collections;
(iii) Basic intellectual control of collections to the extent possible using standard
reference tools and materials;
(iv) Identification and separation of preservation problems such as mold, water
damage or insect infestations;
(v) Retrospective review of correspondence, collection lists and other accession
information to match artifacts to any legacy information in the files;
(vi) Entering information into a collection management system; and
(vii) Preparation of summary documents and reports.
Collectively, these actions are hereinafter defined as the Services.
(d) The Services will not include:
(i) Any conservation of Materials; or
(ii) Complete cataloguing of Materials.
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(e) The Services will be performed in a manner mutually agreed upon by the City and
MHS and in accordance with MHS standards for its own collections. The City may,
but is not required, to have an inspector present at any time that the Services are
being performed in order to ensure that the Services are performed in a workmanlike
manner. The City recognizes that a contribution will be made by LLC directly to
MHS for the benefit of the City and for the purpose of covering the MHS-Incurred
Costs (as defined in Section 5). In connection with its performance of the Services,
MHS shall be responsible for the removal of the Materials from the Museum and the
delivery thereof to the Space designated by the City (as defined in Section 3), where
MHS shall perform the Services. If requested by MHS the City will provide security
for the truck(s) moving the collection. Following completion of the Services (so
long as this Agreement has not been terminated by the City) MHS shall be
responsible for returning the Materials to the Museum. The Services shall be
provided on a time frame that is acceptable to each of the City, the Museum and
MHS. Lynnea Magnuson, Director of the Soldiers Memorial, and Richard T.
Bradley, President of the Board of Public Service of the City of St. Louis, will have
right of access to the Materials at all times, and will serve as cooperative liaisons for
the City of St. Louis.
2. Ownership of the Materials. The parties hereby agree that, at all times, all right, title and
interest in and to the Materials shall remain with the City. MHS shall not, directly or
indirectly, create, incur, assume or suffer to exist any mortgage, pledge, lien, encumbrance or
claim on or with respect to the Materials.
3. Location of Services. The City hereby agrees to provide MHS with a secure site suitable for
MHS to perform the Services. To that end, the City shall provide MHS with access to, and
use of, approximately ___ square feet of indoor space (the Space) at 1520 Market Street
to perform the Services. Prior to MHS relocation of the Materials to the Space, the City
shall ensure that the Space is serviced to the reasonable satisfaction of MHS with all utilities,
including without limitation, heat, air conditioning, electrical services, proper lighting, water
and bathroom facilities (the Preliminary Work). The City shall notify MHS upon
completion of the Preliminary Work and the City and MHS shall at such time tour the Space
to ensure compliance with this Section. Thereafter, for the remainder of the term, the City
shall maintain the Space at an ambient air temperature of between 68 and 72 degrees
Fahrenheit plus or minus five degrees and a humidity level of between 45 and 50% plus or
minus 5%, and ensure a continued supply of all aforementioned utilities, all at the Citys sole
cost and expense. In addition, the City shall be solely responsible for the protection and
safekeeping of the Space, which includes security for the Materials, MHS employees and
agents and all MHS equipment.
4. Term; Termination.
(a) This Agreement shall commence on the Effective Date and continue for a period of
one (1) year. Thereafter, this Agreement shall automatically renew for additional
successive terms of one (1) year each, until such time as the Services have been
completed. Notwithstanding the foregoing, the City and MHS shall each have the
right to terminate this Agreement upon sixty (60) days written notice of termination
to the other parties.
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(b) Upon expiration or termination of this Agreement for any reason, MHS shall make
the Materials available to the City at the Space and promptly remove any MHS
equipment located at the Space. Thereafter, MHS shall have no further obligations
to the City, either under this Agreement or with respect to the Materials.
5. Gift Agreement. Contemporaneous with the execution of the Agreement by the parties,
LLC and MHS shall enter into a separate Gift Agreement by which LLC intends to make a
contribution to MHS for the direct benefit of the City and is exclusively for its public
purposes (the Gift Agreement). As provided in the Gift Agreement, the amount of the
contribution shall be agreed upon by LLC and MHS, but is intended to be that amount
which LLC and MHS agree is at least sufficient to compensate MHS for all of its direct and
indirect costs (including a reasonable contingency amount agreed upon by LLC and MHS)
incurred in providing the Services, which costs include, without limitation, pro rata portions
of compensation for MHS employees engaged in providing the Services and payments made
by MHS to third parties in connection with MHS provision of the Services, such as
payments to independent contractors and payments for insurance (including the insurance
identified in Section 9) and reasonable legal fees (MHS-Incurred Costs). It is hereby
agreed among the parties that the execution of the Gift Agreement by LLC and MHS is a
condition precedent to MHS obligations under this Agreement. The parties recognize that
it is the intent of each of them that MHS shall bear no economic cost for the performance
of the Services beyond the amount contributed to MHS pursuant to the Gift Agreement.
No work by MHS shall commence with respect to performing the Services until such
amount has been received by MHS.
6. Representations and Warranties.
(a) MHS hereby represents and warrants that:
(i) it is duly organized, validly existing and in good standing as a pro forma
decree corporation under the laws of Missouri and it has the full right, power
and authority to enter into this Agreement and to perform its obligations
hereunder;
(ii) it shall perform the Services using personnel of required skill, experience and
qualifications, in a professional and workmanlike manner in accordance with
those standards it applies to similar work on its own collections and shall
devote resources sufficient to meet its obligations under this Agreement.
(b) The City hereby represents and warrants that:
(i) it is a body politic, charter City of the State of Missouri;
(ii) it has the full right, power and authority to enter into this Agreement and
perform its obligations hereunder and will provide its full cooperation to
MHS in order for MHS to perform the Services.
(c) EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 6, (i) EACH
PARTY HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE UNDER THIS AGREEMENT,
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AND (ii) MHS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. Exculpation. The parties acknowledge that MHS is performing the Services for the benefit
of the City and without profit. The City also acknowledges that there is deterioration in a
portion of the Materials that make up its collection, and the Materials are in various
conditions of preservation. Accordingly, in accepting the Services the City agrees to
exercise no claim, direct or indirect, against MHS, its trustees, officers, employees or agents
with respect to any direct or indirect act or omission by any of them with respect to this
Agreement or the Services to be performed under the Agreement. MHS agrees to provide
insurance in the types and amounts set forth in paragraph 9 of this Agreement.
8. Limitation of Liability. IN ADDITION TO THE EXCULPATION SET FORTH IN
SECTION 7, IN NO EVENT WILL A PARTY OR LLC BE LIABLE TO ANY OTHER
PARTY OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR
PROFIT OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT,
EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES HOWSOEVER ARISING,
REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND
WHETHER OR NOT SUCH PARTY OR LLC HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
9. Insurance.
(a) At all times during the term of this Agreement, MHS shall maintain, at its cost and
expense, at least the following types and amounts of insurance coverage:
(i) Commercial General Liability with limits no less than $[AMOUNT] per
occurrence and $[AMOUNT] in the aggregate[, including bodily injury and
property damage and products and completed operations], which policy will
include contractual liability coverage insuring the activities of MHS under
this Agreement;
(ii) Workers Compensation with limits no less than the greater of (A)
$[AMOUNT], or (B) the minimum amount required by applicable law;
(iii) Fine Arts policy with limits no less than [AMOUNT];
(iv) Commercial Automobile Liability with limits no less than [AMOUNT],
combined single limit; and
(v) Errors and Omissions/Professional Liability with limits no less than
$[AMOUNT] per occurrence and $[AMOUNT] in the aggregate.
(b) All insurance policies required pursuant to this Section 9 shall:
(i) be issued by insurance companies with a Bests Rating of no less than
[______];
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(ii) name the City and/or the Museum and, in each case, all successors and
permitted assigns, as additional insureds.
(c) Upon the written request of the City, MHS shall provide the City with copies of the
certificates of insurance and policy endorsements for all insurance coverage required
by this Section 9, and shall not do anything to invalidate such insurance.
10. Force Majeure. No party shall be liable or responsible to any other party, nor be deemed to
have defaulted under or breached this Agreement, for any failure or delay in fulfilling or
performing any term of this Agreement (except for any obligations to make payments to the
other party hereunder), when and to the extent such failure or delay is caused by or results
from acts beyond the affected partys reasonable control, including, without limitation: acts
of God; flood, fire or explosion; war, invasion, riot or other civil unrest; actions, embargoes
or blockades in effect on or after the date of this Agreement; national or regional emergency;
compliance with any law or governmental order, rule, regulation or direction, or any action
taken by a governmental or public authority; any other event which is beyond the reasonable
control of such party (each of the foregoing, a Force Majeure Event). A party whose
performance is affected by a Force Majeure Event shall give notice to the other parties,
stating the period of time the occurrence is expected to continue and shall use diligent
efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
11. Independent Contractors. The relationship among the parties is that of independent
contractors. Nothing contained in this Agreement shall be construed as creating any agency,
partnership, joint venture or other form of joint enterprise, employment or fiduciary
relationship among the parties, and no party shall have authority to contract for or bind any
other party in any manner whatsoever.
12. Survival. The rights and obligations of the parties set forth in Sections 2, 4(b), 6, 7, 11, 12
and 13 shall survive any termination or expiration of this Agreement.
13. Miscellaneous.
(a) Unless required by law, no party shall issue or release any announcement, statement,
press release or other publicity or marketing materials relating to this Agreement,
without the prior written consent of the other parties.
(b) All notices, requests, consents, claims, demands, waivers and other communications
hereunder shall be in writing and shall be deemed to have been given (i) when
delivered by hand (with written confirmation of receipt); (ii) when received by the
addressee if sent by a nationally recognized overnight courier (receipt requested); (iii)
on the date sent by facsimile (with confirmation of transmission) if sent during
normal business hours of the recipient, and on the next business day if sent after
normal business hours of the recipient or (iv) on the third (3
rd
) day after the date
mailed, by certified or registered mail, return receipt requested, postage prepaid.
Such communications must be sent to the respective parties at the addresses
indicated below (or at such other address for a party as shall be specified in a notice
given in accordance with this Section 13(b).
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4218568.7

If to MHS: Missouri Historical Society
P.O. Box 11940
St. Louis, MO 63112

Facsimile: 314-454-3162
Attention: Attention: Dr. Frances Levine,
President and Chief Executive Officer
With a copy to:
Mr. Frank P. Wolff, Jr.
Bryan Cave LLP
Suite 3600, 211 N. Broadway
St. Louis, MO 63102

If to the City: [ADDRESS]
Facsimile: [FAX NUMBER]
Attention: [TITLE OF OFFICER TO
RECEIVE NOTICES]
With a copy to:
Ms. Barbara Birkicht
Assistant City Counselor
1200 Market Street
Suite 314
St. Louis, MO. 63103
LLC: [ADDRESS]
Facsimile: [FAX NUMBER]
Attention: [TITLE OF OFFICER TO
RECEIVE NOTICES]
With a copy to:
Mr. Jason P. Thein
Thompson Coburn LLP
One US Bank Plaza
St. Louis, MO 63101


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(c) Entire Agreement. The terms of this Agreement constitute the entire agreement
between MHS and the City concerning the transaction contemplated herein. This
Agreement supersedes any and all other agreements concerning the transaction,
whether oral or written, between MHS and the City.
(d) Binding Effect. This Agreement shall be binding upon the parties and their
respective heirs, legal representatives, successors and assigns.
(e) Nonwaiver. Failure of a party to insist on the strict performance of any provision of
this Agreement shall not be construed or deemed to be a waiver of that provision or
any other provision of this Agreement. Any waivers must be in writing and signed
by the party waiving.
(f) Amendments. Any amendment to this Agreement must be in writing and signed by
each party hereto.
(g) No Personal Liability. No alderman, alderwoman, commissioner, director, officer,
board member, employee, or other agent or representative of the City or any trustee,
officer, employee or agent of MHS or any member, managing agent or other agent
of LLC shall be personally liable under or in connection with this Agreement.
(h) Applicable Law. This Agreement shall be governed by, and construed and enforced
in accordance with, the internal laws of the State of Missouri, without regard to
principles of conflicts of law.
(i) Severability. If any provisions of this Agreement are held to be illegal, invalid or
unenforceable under present or future laws, such provision shall be fully severable,
and this Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of this Agreement, and the
remaining provisions of this Agreement shall remain in full force and effect and not
be affected by the illegal, invalid or unenforceable provision or by its severance from
this Agreement, provided that the parties may still effectively realize the complete
benefit of the transaction contemplated hereby.
(j) Counterpart Execution. This Agreement may be executed in one or more
counterparts, each of which, when so executed and delivered, shall be deemed to be
an original and all of which, taken together, shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.

THE CITY OF ST. LOUIS, MISSOURI

By
Name:
Title: Director of the Board of Public Service

MISSOURI HISTORICAL SOCIETY

By
Name:
Title:

This Agreement is executed by LLC for the sole purpose of acknowledging that it intends to enter
into a Gift Agreement with MHS as set forth above.

SOLDIERS MEMORIAL, LLC

By
Name:
Title: