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HomeMy WebLinkAboutReso 2013-2093RESOLUTION NO. 2013- 20g3 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, APPROVING AN AGREEMENT WITH VALERIA YAMAMOTO FOR THE DESIGN AND CONSTRUCTION OF THREE (3) SCULPTURES ENTITLED "RAIN", "SEA WHISPER" AND "CONVERGE" AT THE INTRACOASTAL PARK, IN A TOTAL AMOUNT NOT TO EXCEED SIXTY -FIVE THOUSAND DOLLARS ($65,000.00), ATTACHED HERETO AS EXHIBIT "A "; AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT; AUTHORIZING THE CITY MANAGER TO DO ALL THINGS NECESSARY TO EFFECTUATE THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Commission has continually expressed its desire to create a visually distinctive, yet attractive and pleasing urban environment; and WHEREAS, the placement of certain artwork throughout the City enhances the image of the City and further makes it a desirable community in which to live, vacation, and do business; and WHEREAS, in accordance with Chapter 104 of the Sunny Isles Beach City Code entitled "Art in Public Places ", the City desires to commission three (3) sculptures for Intracoastal Park; and WHEREAS, artist Valeria Yamamoto, (the ARTIST), has expressed the ability and desire to create original sculptures entitled `'Rain ", "Sea Whisper" and "Converge" to be located at the Intracoastal Park; and WHEREAS, the City Commission wishes to enter into an Agreement with the ARTIST for the design and construction of said sculptures, in a total amount not to exceed Sixty -Five Thousand Dollars ($65,000.00) and attached hereto as Exhibit "A ". NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS: Section 1. Approval of Agreement. The Agreement with Valeria Yamamoto for the design and construction of three (3) sculptures at the Intracoastal Park, in a total amount not to exceed Sixty - Five Thousand Dollars ($65,000.00), attached hereto as Exhibit "A ", be, and the same, is hereby approved. Section 2. Authority of Mayor. The Mayor is hereby authorized to execute said Agreement. Section 3. Authorization of City Manager. The City Manager is hereby authorized to do all things necessary to effectuate this Resolution. 82013- Valeria Yamamoto Artist Agmt Intracoastal Park Page 1 of 2 Section 4 Effective Date. This Resolution will become effective upon adoption. PASSED AND ADOPTED this 181h day of July 2013. ATTEST.: a. Jane A: \Hines,, CMC, City Clerk APPROVED AS TO FORM ANI?.LEGAL SUFFICIENCY: Attorney Vote: G -b Moved by: Seconded by: Mayor Edelcup V (Yes) Vice Mayor Aelion ✓(Yes) Commissioner Gatto ✓(Yes) Commissioner Levin (Yes) Commissioner Scholl -7(Yes) (No) (No) (No) (No) (No) R2013- Valeria Yamamoto Artist Agmt Intracoastal Park Page 2 of 2 N ,w._,' AGREEMENT BETWEEN THE CITY OF SUNNY ISLES BEACH AND a -- VALERIA YAMAMOTO FOR COMMISSIONED AR'T'WORK CONTRACT NO. C1213 -030 ,r THIS AGREEMENT (hereinafter referred to as the "Agreement') is made in duplicate, this 31ST day of July, 2013, by and between the CITY OF SUNNY ISLES BEACH FLORIDA, a political subdivision of the state of Florida, located at 18070 Collins Avenue, Sunny Isles Beach, Florida 33160, hereinafter referred to as "CITY," and VALERIA YAMAMOTO, located at 9800 West Bay Harbor Dr., Apt. 9412, Bay Harbor Island, FL 33154, hereinafter referred to as "ARTIST." WHEREAS, in accordance with its Art in Public Places Ordinance, the City desires to commission the three sculptures at the Sunny Isles Beach Intracoastal Park, hereafter referred to as the "Site"; and WHEREAS, the ARTIST has expressed the ability and desire to create original sculptures entitled "Rain ", "Sea Whisper" and "Converge" to be located at the Sunny Isles Beach Intracoastal Park or other parks (collectively referred to as the "Project' as more particularly described in the Attachment "A "); and WHEREAS, both parties wish to enter into an agreement for the design, construction, and delivery of said Project. NOW THEREFORE, in consideeation of the mutual terms, conditions, promises covenants and payments hereinafter set forth. CITY and ARTIST agree as follows: ARTICLE I DEFINITIONS A- \D IDENTIFICATIONS The definitions and identifications set forth below are assumed to be true and correct and are agreed upon by the parties. 1.1 Agreement. This document, and other terms and conditions which are included in the exhibits and documents that are expressly incorporated by reference. 1.2 Artist. The individual or business entity selected to perform services pursuant to this Agreement. 1.3 City. The City of Stymy Isles Beach, Florida. Unless otherwise provided in the Agreement, where certain approvals and submissions are required from the CITY in this Agreement, those shall be required by the Mayor and_ City Commission of the CITY of Sunny Isles Beach, Florida or the City Manager. 1.4 City Manager- Shall mean the Chief Administrative Officer of the CITY. 1 REVISED: C1213 -030 Valeria Yamamoto City of Sunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160 (305) 947 -0606 phone (305) 949 -3113 Fax 1.5 Contract Administrator. The City Manager or a designee of the City Manager, whose primary responsibilities are to coordinate and communicate with ARTIST and to manage and supervise execution and completion of the Project and the terms and conditions of this Agreement, as set forth herein. 1.6 City Attorney. The chief legal counsel for CITY who directs and supervises the Office of the City Attorney. 1.7 Notice to Proceed. A written Notice to Proceed for the Project issued by the Contract Administrator. 1.8 Project. That certain unique and original work of art including "Raid', "Sea Whisper'! and "Converge" to be situated in a location designated by the CITY at the Sunny Isles Beach Intracoastal Park or other narks owned by the Cite. ARTICLE 2 SCOPE OF SERVICES 2.1 ARTIST shall perform all work related to the Project identified in this Agreement and Attachment "A" for the engineering design, permitting, and fabrication of the Project. 2.2 ARTIST shall provide monthly progress reports and /or deliverables in a manner acceptable to the Contract Administrator. 2.3 Prior to installation of the Project and upon request. the ARTIST shall furnish the Contract Administrator with professional photographic documentation showing the completed Project. 2.4 Upon completion of the Project, ARTIST shall provide Contract Administrator with a detailed written schedule and instructions for the routine care, maintenance, and preservation specific to the Project. 2.5 ARTIST shall be responsible for the quality and timely completion of the Project. 2.6 ARTIST agrees that the Project shall comply with all applicable Federal, State, Miami - Dade County, and City of Sunny Isles Beach laws, ordinances, codes and regulations. 2.7 The ARTIST shall not make any public information release in connection with the Project performed pursuant to this Agreement without the prior written permission of the Contract Administrator. However. the ARTIST may use the public information released by the CITY in her website and other brochures for future marketing purposes. 2.8 The ARTIST shall take all necessary steps to coordinate the Project with any ongoing work of the CITY, or any third pam, under the direction and control of the CITY, on or near the site where the Project will be located. 2 REVISED: C1213 -030 Valeria Yamamoto City of Sunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160 (305) 947 -0606 phone (305) 949 -3113 Fax 2.9 Title to the Project shall pass to the CITY followine the Contract Administrator's inspection of the Project and; if the Project is approved, upon Contractor's issuance of written final acceptance of the complete installed Project. In furtherance of the foregoing, it is understood that any risk of loss or damage to the Project shall be the sole responsibility and liability of ARTIST until such time as the Contract Administrator has taken possession of the Projector Sculptures. 2.10 Upon Contract Administrator's written final acceptance of the complete installed Project, all documents related to the conception, proposal, fabrication, of the Project, including "as built" documents, shall be turned over to the Contract Administrator and become the property of CITY. ARTIST understands and agrees, that CITY shall be free to exhibit and/or reproduce these documents as a record of ARTIST'S conception of the Project. ARTICLE 3 TERM AND TIME OF PERFORMANCE 3.1 The term of this Agreement shall begin on the date it is fully executed by both parties. Thereafter, ARTIST shall diligently execute the Project and shall deliver the completed Project within One Hundred Eighty (180) days from the date of execution. 3.2 Time shall be deemed to be of the essence in performing the duties, obligations and responsibilities required by this Agreement. 3.3 The CITY, through the Contract Administrator, may grant a reasonable extension of time to the ARTIST in the event that there is a delay on the part of the CITY in performing its obligations or in completing the underlying CITY capital project resulting in a delay of the work site being made available to ARTIST for proceeding with the Project, or if conditions beyond the ARTIST'S control render timely performance of the ARTISTS services impossible or unexpectedly burdensome. All requests for extensions of time must be submitted in writine to the Contract Administrator by the ARTIST as soon as the delay or conditions become known and their impact is evaluated, and shall not be effective unless approved in writing by the Contract Administrator. 3.4 Either party is excused from performance and shall not be liable for any delay in delivery or for non - delivery, in whole or in pan, caused by the occurrence of a force majeure event such as hurricane, fire, civil disobedience, riots, rebellions, explosion, flood, storm. Acts of God, and similar occurrences. Failure to fulfill contractual obligations due to force majeures set forth in the preceding sentence will not be considered a breach of contract, provided that such obligations shall be suspended only for the duration of such condition. 3 REVISED: C1213 -030 Valeria Yamamoto City of Sunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160 (305) 947 -0606 phone (305) 949 -3113 Fax ARTICLE 4 COMPENSATION 4.1 CITY agrees to pay ARTIST the total amount of Sixty Five Thousand Dollars ($65,000.00) for the Project that is actually performed, completed and accepted pursuant to this Agreement, which amount shall be the sutra total accepted by ARTIST as full compensation for the Project. No amount shall be paid to ARTIST for reimbursable expenses. 4.2 The total compensation from the City to ARTIST shall be paid in installment payments. The first installment payment shall be in the amount of $20,000.00 (twenty thousand dollars) and shall be due and payable upon execution of this Agreement by both parties. The second installment payment shall be in the amount of $25,000.00 (twenty five thousand dollars) and shall be due and payable upon completion of two of the Sculptures in the Project Sea Whisper and Rain. The third and final installment payment shall be for 520,000.00 (twenty thousand dollars) and shall be due and payable upon acceptance and delivery of the third and final piece of the Project, Converge. 4.3 Payment shall be made to ARTIST at the business address provided by the ARTIST. ARTICLE 5 CHANGES IN SCOPE OF SERVICES 5.1 Any change to the scope of services under this Agreement must be accomplished by a written amendment, fully executed by both parties. 5.2 The ARTIST shall, whenever required during the term of this Agreement, present to Contract Administrator, in writing, drawing or other appropriate media, for further review and approval, any significant changes in the scope, design, color, size, material, utility and support requirements, texture, or location of the site or of the Project. A significant change is any change that affects the size, quality, scheduling, site preparation or maintenance of the Project, or the concept of the Project as represented in the original approved design. ARTICLE 6 ARTIST'S WARRANTIES 6.1 The ARTIST warrants that (a) the Project being commissioned is the original product of the ARTIST'S own creative efforts; and (b) unless otherwise stipulated, the Project is original, or in other words, an edition of one (1). Notwithstanding any models, or other sized Sculpture of the same design. 6.2 The ARTIST warrants that reasonable maintenance of the Project will not require any extraordinary procedures, just washing approximately twice a year, using recognized 4 REVISED: C1213 -030 Vateria Yamamoto City of Sunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160 (305) 947 -0606 phone (305) 949 -3113 Fax standards of conservation; or the expenditure of substantial funds by the CITY and that ARTIST shall deliver the Project to the CITY free and clear of any liens from any source whatsoever. 6.3 The ARTIST warrants that she shall faithfully perform the Project in accordance with standards of care, skill, training, diligence and judgment provided by highly competent professionals who perform work of a similar nature. ARTICLE 7 WND RESISTANCE 7.1 It is understood that the specific locations of the Project is the Sunny Isles Beach Intracoastal Park owned by the City. ARTICLE 8 COPYRIGHTS 8.1 Neither the whole nor any portion of the Project shall be the subject of any application for copyright or patent by or on behalf of the ARTIST without the prior written consent of the CITY. If such consent is given, and notwithstanding such rights, ARTIST hereby grants to CITY a non - exclusive; perpetual; irrevocable, and royalty free license to reproduce, make; print and/or publish photographic, filmed or videotaped reproductions, make, print and/or publish photographic, filmed or videotaped reproductions and other two - dimensional likenesses of the Project and/or the proposals for the Project for such purposes as determined solely by the CITY in its reasonable discretion. In this connection, it is understood that public promotional and advertising uses are without limitation. It is also understood that either of the parties to this Agreement may also permit photographic, filmed, videotaped or other reproductions of the Project to appear as editorial matter in newspapers, magazines, periodicals, books, motion picture films and/or videotaped films. In connection with any such reproduction and publication by any party, that party shall arrange for appropriate credit identifying the name of the ARTIST as the Project's creator, the title of the Project, the materials, dimensions, and the location thereof. 8.2 ARTIST agrees that the Project shall comply with all applicable patent, trademark and copyright laws, rules, regulations and codes. The ARTIST further agrees that the Project will not utilize any protected patent; trademark or copyright unless ARTIST has obtained proper permission and all releases and other necessary documents. ARTIST represents and warrants that the Project submitted to the City is ARTIST's own original work and does not violate any agreement between ARTIST and any third party, and that the City's use of the Project does not infringe upon or violate any law, agreement or other rights of any kind, or those belonging to any third party, including without limitation, rights affecting copyright, patent, trademark, unfair competition, or contract. ARTIST agrees to indemnify, defend and hold harmless the City, including its officials and employees, REVISED: C1213 -030 Valeria Yamamoto City of Sunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160 (305) 947 -0606 phone (305) 949 -3113 Fax against any and claims, liabilities or action arising out of or relating to the breach or alleged breach of the foregoing representations and warranties. 8.3 If the ARTIST uses any protected material, process or procedure, the ARTIST shall disclose such patent, trademark or copyright in the construction drawings and technical specifications. ARTICLE 9 TERMIINATION 9.1 This Agreement may be terminated for cause or without cause by the CITY, through the Contract Administrator, upon thirty (30) days prior written notice to the ARTIST. 9.2 Termination of this Agreement for "cause" shall include failure to continuously perform the Project in a timely manner calculated to meet or accomplish the objectives of the CITY as set forth in this Agreement. a breach of the provisions of this Agreement (notwithstanding whether any such breach was previously waived or cured), or any other reason necessary to protect the health, safety, or welfare of the general public. 9.3 Notice of termination shall be provided in accordance with the NOTICES section of this Agreement except that notice of termination which Contract Administrator deems necessary to protect the public health, safety, or welfare may be by verbal notice which shall be promptly confirmed in writing in accordance with the NOTICES section of this Agreement. 9.4 The death or permanent incapacity of the ARTIST shall automatically terminate this Agreement. Neither the ARTIST nor the ARTIST's estate shall have any further right to perform hereunder. The CITY shall have the right to secure the Project, in its original state at the time of ARTIST's death or incapacity, and shall have the right to complete same, provided that credit will be accorded to the ARTIST or his estate for his portion of the Project. ARTIST's estate shall be compensated for any unpaid amounts. ARTICLE 10 MISCELLAJNEOUS 10.1 AUDIT RIGHT AND RETENTION OF RECORDS ARTIST shall preserve and make available, at reasonable times for examination and audit by CITY, all financial records, supporting documents, statistical records, and any other documents pertinent to this Agreement for the required retention period of the Florida Public Records Act (Chapter 119, Fla. Stat.), if applicable, or, if the Florida Public Records Act is not applicable, for a minimum period of three (3) years after termination of this Agreement. If any audit has been initiated and audit findings have not been resolved at the end of the retention period or three (3) years, whichever is longer, the books, records, and accounts shall be retained until resolution of the audit findings. If the 6 REVISED: C1213 -030 Valeria Yamamoto City of Sunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160 (305) 947 -0606 phone (305) 949 -3113 Fax Florida Public Records Act is determined by CITY to be applicable to ARTISTS records, ARTIST shall comply with all requirements thereof, however, no confidentiality or non- disclosure requirement of either federal or state law shall be violated by CITY or ARTIST. 10.2 INDEPENDENT CONTRACTOR ARTIST is an independent contractor under this Agreement. Services provided by ARTIST pursuant to this Agreement shall be subject to the supervision of ARTIST. In providing such services; neither ARTIST nor its agents shall act as officers, employees, or agents of the CITY. This Agreement shall not constitute or make the parties a partnership or joint venture, and furthermore, this Agreement does not constitute a work for hire arrangement or agreement. 10.3 THIRD PARTY BENEFICIARIES Neither ARTIST nor CITY intends to directly or substantially benefit a third party by this Agreement_ Therefore, the parties agree that there are no third party beneficiaries to this Agreement and that no third party shall be entitled to assert a claim against either of them based upon this Agreement. The parties expressly acknowledge that it is not their intent to create any rights or obligations in any third person or entity under this Agreement. 10.4 NOTICES Whenever either party desires to give notice to the other, such notice must be in writing sent by certified United States Mail, postage prepaid, return receipt requested, or by hand - delivery with a request for a written receipt of acknowledgment of delivery; addressed to the party for whom it is intended at the place last specified. The place for giving notice shall remain the same as set forth herein until changed in writing in the manner provided in this section. For the present, the parties designate the following: FOR CITY: Christopher J. Russo, City Manager City of Sunny isles Beach 18070 Collins Avenue Sunny Isles Beach, FL 33160 with copies to: Hans Ottinot, City Attorney City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, FL 33160 7 REVISED: C1213 -030 Valeria Yamamoto City of Sunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160 (305) 947 -0606 phone (305) 949 -3113 Fax FOR ARTIST: Valeria Yamamoto 9800 West Bay Harbor Drive, Apt. 9412 Bay Harbor Island, FL 33154 10.5 ASSIGNMENT AND PERFORMANCE ARTIST shall not assign, transfer, or encumber all or any portion of this Agreement. ARTIST represents that all persons delivering the services required by this Agreement have the knowledge and skills; either by training, experience; education, or a combination thereof, to adequately and competently perform the duties, obligations, and services set forth in this Agreement and to provide and perform such services for the agreed compensation. ARTIST shall perform its duties, obligations. and services under this Agreement in a skillful and respectable manner. The quality of ARTIST'S performance and all interim and final product(s) provided to or on behalf of CITY shall be comparable to the best local and national standards. 10.6 WAIVER OF BREACH The failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision or modification of this Agreement. A waiver of any breach of a provision of this Agreement shall not be deemed a waiver of any subsequent breach and shall not be construed to be a modification of the terms of this Agreement. 10.7 COMPLIANCE WITH LAWS ARTIST and CITY shall comply with all federal, state, and local laws, codes, ordinances, rules, and regulations in performing its duties, responsibilities, and obligations related to this Agreement. 10.8 PRIORITY OF CONFLICTTIINNG PROVISIONS If there is a conflict or inconsistency between any term, statement, requirement, or provision of any exhibit attached hereto, any document or events referred to herein, or any document incorporated into this Agreement by reference and a term, statement, requirement or provision of this Agreement, the term, statement, requirement, or provision contained in this Agreement shall prevail and be given effect over any term, statement, requirement or provision contained in any other document or exhibit, 8 REVISED: C1213 -030 Valeria Yamamoto City of Sunny Isles Beach 18070 Collins Avenue, Surety Isles Beach, Florida 33160 (305) 947 -0606 phone (305) 949 -3113 Fax including but not limited to Attachment "A" attached hereto or any other document or attachment not specifically attached hereto or otherwise referenced in this Agreement., 10.9 APPLICABLE: LAW AND VENLIE This Agreement shall be interpreted and construed in accordance with and governed by the laws of the State of Florida. Venue for litigation concerning this Agreement shall be in Miami Dade Counts Florida. BY ENTERING INTO THIS AGREEMENT, ARTIST AND CITY EXPRESSLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT., 10.10 ATTORNEY'S FEES If this matter is placed in the hands of an attorney for collection, or in the event, suit or action is instituted to enforce any of the terms or conditions of this agreement, the losing party shall pay to the prevailing party, in such suit or action in both trial court and appellate court; together with reasonable attorney's fees for the anticipated cost of collection and. judgment enforcement. 10.11 AMENDMENTS No modification, amendment, or alteration in the terms or conditions contained herein shall be effective unless contained in a written document prepared with the same or similar formality as this Agreement and executed by the City Commission. 10.12 MULTIPLE ORIGINALS This Agreement may be frilly executed in duplicate (2) copies by all parties, each of which, bearing original signatures, shall have the force and effect of an original Annnmr nt S Print: Print: 9 REVISED: 01213 -03€1 Valeria Yamaraokv VALERIA YAMAMOTO By: City of Sunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160 (305) 947 -0606 phone (305) 949 -3113 Fax Jane Hines, CMC; City APPROVED AS TO FORM A N-1D LEGAL F 10 REVISED: C1213 -030 Valeria Yamamoto CITY OF SUNWY ISLES BEACH "CONVERGE" VALQERIA YAMAMOTO M AT E R)Af M It - Attachment "A" "RAIN" PROPOSAL. FOR SCULPTURE PARK VALERIA YAMAMOTO 0 11 MOO r7l E li 4.0 4b M 0 VO.- L7A El 4b 44 aw wr � • : a� . `� �, ,.. . ,. .g _., ry r ��< '� A Valeria Yamamoto "Seawhisper ". 2008 Polished cement. 6'H x 5'.5" W. SF FI.O¢, 5� Crr` OF 5-.,4 nNO City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, Florida 33160 (305) 947 -0606 City Hall (305) 949 -3113 Fax MEMORANDUM TO: The Honorable Mayor and City Commission FROM: Christopher J. Russo, City Manager DATE: 7/18/2013 RE: Resolution Approving an Agreement with Valeria Yamamoto for Three (3) Sculptures for Intracoastal Park RECOMMENDATION: Adopt the Resolution approving an Agreement with Artist Valeria Yamamoto. REASONS: In accordance with Chapter 104 of the City Code entitled "Art in Public Places ", the City desires to commission three (3) sculptures for Intracoastal Park. Artist Valeria Yamamoto has expressed the ability and desire to create original sculptures entitled "Rain ", "Sea Whisper" and "Converge" for Intracoastal Park. The City wishes to enter into an Agreement with the Artist for the design and construction of the three (3) sculptures for Intracoastal Park, in a total amount not to exceed $65,000.00. FUNDING SOURCE: Funds are available in Account Numbers 35.600 -5682, 35.600 -5686, and 35.600 -5687. ATTACHMENTS: • Resolution • Agreement • Attachment "A" Photographs of Sculptures Agenda Item No. 100 Date 7/18/2013 212