HomeMy WebLinkAboutReso 2006-893
RESOLUTION NO. 2006- ~g 3
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
SUNNY ISLES BEACH, FLORIDA, APPROVING AN AGREEMENT
WITH RAFAEL BARRIOS FOR THE DESIGN, CONSTRUCTION,
AND INSTALLATION OF A SCULPTURE ENTITLED
"CONTAINED ENERGY" AT THE SUNNY ISLES BEACH TOWN
CENTER PARK, IN THE AMOUNT OF ONE HUNDRED SIXTY
THOUSAND DOLLARS ($160,000.00), ATTACHED HERETO AS
EXHIBIT "A"; AUTHORIZING THE MAYOR TO EXECUTE SAID
AGREEMENT; AUTHORIZING THE CITY MANAGER TO DO ALL
THINGS NECESSARY TO EFFECTUATE THE TERMS OF THE
AGREEMENT; 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, artist Rafael Barrios, (the ARTIST), has expressed the ability and desire to
create an original sculpture entitled "Contained Energy" (to be located at the Sunny Isles Beach
Town Center Park), as a participative virtual form, evoking possibilities and generating a clu'omatic
and volumetric event that modifies visually by distance, displacement and by change oflight through
out the day; and
WHEREAS, the City Commission wish to enter into an agreement with the ARTIST for the
design, construction, and installation of said sculpture, in a total amount of One Hundred Sixty
Thousand Dollars ($160,000.00) 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 Rafael Barrios for the design,
construction, and installation of a monumental sculpture at the Sunny Isles Beach Town Center Park,
in a total amount of One Hundred Sixty Thousand Dollars ($160,000.00), 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 the terms of the Agreement.
Section 4
Effective Date. This Resolution will become effective upon adoption.
Rl006-893 Approving Agmt With Rafael Barrios
Page I of2
PASSED AND ADOPTED this 16th day of February, 2006.
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ATTEST:
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Jane A. Hines, CMC, City Clerk
APPROVED AS TO FORM
AND LEGAL SUF CIENCY:
Moved by: ~ -b~~ ~CM.A1O
Seconded by: C()~ .IcbLcc.~ II4S
Vote: 3-~
Mayor Edelcup
Vice Mayor Brezin
Commissioner Goodman
Commissioner Iglesias
Commissioner Thaler
V(Yes)
(Yes)
V(Yes)
V(Yes)
_(Yes)
(No)
~(No)
_(No)
_(No)
0No)
Approving Aglllt with Rafael Barrios
201'2
AGREEMENT BETWEEN
CITY OF SUNNY ISLES BEACH, FLORIDA AND RAFAEL BARRIOS
FOR COMMISSIONED ARTWORK
This is an Agreement, made and entered into by and between: 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 refelTed to as "CITY," and RAFAEL BARRIOS, with
a principal place of business located at 100 Lincoln Road, Suite 1044, Miami Beach, Florida 33139,
hereinafter referred to as "ARTIST."
WHEREAS, in accordance with its Art in Public Places Ordinance, the City plans to install a
monumental sculpture entitled "Contained Energy" at the Sunny Isles Beach Town Center Park,
hereafter referred to as the "Site"; and
WHEREAS, artist Rafael Banios, (the ARTIST), has expressed the ability and desire to
create an original sculpture titled "Contained Energy" (to be located at the Sunny Isles Beach Town
Center Park); and as a participative virtual form, evoking possibilities and generating a chromatic
and volumetric event that modifies visually by distance, displacement and by change oflight through
out the day; and
WHEREAS, both parties wish to enter into an agreement for the design, construction,
delivery and installation of said Work.
NOW THEREFORE, IN CONSIDERA nON of the mutual terms, conditions, promises,
covenants and payments hereinafter set forth, CITY and ARTIST agree as follows:
ARTICLE I
DEFINITIONS AND IDENTIFICA nONS
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 Sunny 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.
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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 Scope of Services 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 to be situated in a location designated
by the CITY at the Sunny Isles Beach Town Center Park.
1.9 Work. Any work(s) required by ARTIST under this Agreement to successfully complete the
Project.
ARTICLE 2
SCOPE OF SERVICES
2.1 ARTIST shall perform all Work identified in this Agreement and Exhibit A for the design,
permitting, fabrication, transportation, and installation of the Project.
2.2 ARTIST acknowledges that the project will be located at the Sunny Isles Beach Town
Center Park. The ARTIST shall use the following design and materials when constructing
the sculpture: three large cubic elements, fabricated with fiberglass of various thickness,
internally structured with a treated steel mesh, a high density foam, gel-coat, and finally,
sprayed with "Carboline" a urethane two component paint (Epoxycal) that includes an
ultraviolet protection of its color (see model sample of internal elements). The dimensions of
this sculpture will be approximately thirteen and one half feet tall by eight feet wide by two
feet deep (I3 YS'x8'x2' - see photo montage provided).
2.3 ARTIST shall provide monthly progress reports and/or deliverables in a manner acceptable
to the Contract Administrator.
2.4 Prior to installation of the Project, the ARTIST shall furnish the Contract Administrator with
professional photographic documentation showing the completed Work. Photographs shall
include the following:
1. Two (2) identical sets of twelve 35mm color slides illustrating various aspects of the
artwork within the site.
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2. Two 4x5 color transparencies.
3. Four 8x I 0 black and white photographs.
Slides and photographs shall be of acceptable professional quality as determined by the
Contract Administrator.
In addition to the photographic documentation referenced above, ARTIST shall also provide
Contract Administrator with any and all sketches, drawings, construction documents (if
applicable), and as-built plans (if applicable) showing the completed Work.
2.5 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, as set forth in Exhibit C, Cataloguing Form, attached and made a part
hereof.
2.6 ARTIST shall be responsible for the quality and timely completion of the Project. The
ARTIST shall be responsible for designing the artwork so that it can be constructed without
exceeding the approved overall budget.
2.7 ARTIST agrees that all Work shall comply with all applicable Federal, State, Miami-Dade
County, and CITY of Sunny Isles Beach laws, ordinances, codes and regulations. ARTIST
shall be solely responsible for obtaining any required approvals and permits for the Project,
although ARTIST shall not be required to pay fees charged by the CITY for such approvals
and permits.
2.8 The ARTIST shall not make any public information release in connection with the Project
and/or the Work performed pursuant to this Agreement without the prior written permission
of the Contract Administrator.
2.9 The ARTIST shall take all necessary steps to coordinate the Work with any ongoing work of
the CITY, or any third party under the direction and control of the CITY, on or near the Site.
2.10 While ARTIST is solely responsible for the execution, fabrication, transportation, inspection
and/or installation of the Project, the following provisions shall apply:
a. The Contract Administrator shall notify ARTIST of the CITY'S, or any other
contractor's under the direction and control of the CITY, construction schedules in and
around the area where the Work is to be performed or installed, if they are known by
the CITY. The ARTIST shall perform the Work in a manner and time so as not to
cause interference with any of the operations of the CITY or such third party
contractor. In the event of conflict between the schedules of a third party contractor,
CITY, and ARTIST, the conflict will be resolved by the Contract Administrator, and
the Contract Administrator's decision and resolution as to same shall be binding upon
ARTIST.
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b. CITY shall provide engineering expertise responsible for concrete foundation upon
which the sculpture will be installed (open hole, pour concrete, structural integrity of
base according to ARTIST'S weights and measures and other engineering
considerations). However, ARTIST shall be solely responsible for conducting any
and all inspections of the Site for purposes of ascel1aining the condition of same and
for the proper execution of the Work, and completion and installation of the Project.
c. When working on the Site, ARTIST shall perform such periodic clean up as may be
reasonably requested by the Contract Administrator. Upon completion, ARTIST shall
remove his equipment, excess materials, and waste promptly from the Site, as directed
by Contract Administrator.
2.11 ARTIST shall bear all transp0l1ation and storage costs resulting from the construction,
delivery and installation of the Project.
2.12 Title to the Project shall pass to the CITY following the Contract Administrator's inspection
of the Work and, if the Work 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 ofloss or damage to the Work and/or the Project shall be the sole responsibility
and liability of ARTIST until such time as the Contract Administrator has issued a final
written acceptance of the Project.
2.13 Upon Contract Administrator's written final acceptance of the complete installed Project, all
documents related to the conception, proposal, fabrication, and installation of the Project,
including "as built" documents, shall be turned over to the Contract Administrator and
become the propel1y 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 Work.
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 Work and shall deliver the completed
sculpture within ninety (90) working 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
Site being made available to ARTIST for proceeding with the Work, or if conditions beyond
the ARTIST'S control render timely performance of the ARTIST'S services impossible or
unexpectedly burdensome. All requests for extensions of time must be submitted in writing
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 part, caused by the occurrence of a force majeure event such
as hunicane, fire, civil disobedience, riots, rebellions, explosion, flood, storm, Acts of God,
and similar occunences. 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.
ARTICLE 4
COMPENSA TION
4.1 CITY agrees to pay ARTIST, in the manner specified in Section 4.4 and Exhibit B,
"Compensation and Schedule of Payments", the total amount of One Hundred and Sixty
Thousand Dollars ($160,000.00) for Work actually performed, completed and accepted
pursuant to this Agreement, which amollnt shall be the sum total accepted by ARTIST as full
compensation for the Project. No amount shall be paid to ARTIST for reimbursable
expenses.
4.2 ARTIST may submit invoices for compensation no more often than on a monthly basis, but
only after the 'Nork for which the invoices are submitted has been completed. An original
invoice plus one copy is due within fifteen (15) days of the end of the month, except the final
invoice which must be received no later than sixty (60) days after completion of all Work by
ARTIST. Invoices shall designate the nature of the services performed and/or the expenses
incuned. A written progress report shall accompany each invoice, describing the Work
completed during that period.
4.3 CITY shall pay ARTIST for Work satisfactorily performed and accepted by the Contract
Administrator, within thirty (30) calendar days of receipt of ARTIST'S proper statement. To
be deemed proper, all invoices mllst comply with the requirements set fOlih in this
Agreement and must be submitted on the form and pursuant to instructions prescribed by
Contract Administrator.
4.4 Notwithstanding any provision of this Agreement to the contrary, CITY may, at the sole
discretion of the Contract Administrator, withhold, in whole or in pari, a portion of any or all
payment due under the Agreement, to the extent necessary to protect itself from loss on
account of inadequate or defective work which has not been accepted by Contract
Administrator, and has not been remedied or resolved in a manner satisfactory to Contract
Administrator.
4.5 Payment shall be made to ARTIST at the business address provided by the ARTIST.
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ARTICLE 5
CHANGES IN SCOPE OF SERVICES
5.1 Any change to the Scope of Services must be accomplished by a written amendment,
executed by the parties in accordance with Section 12.16.
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 fUliher 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, installation, 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 W ARRA.NTIES
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 (I).
6.2 The ARTIST warrants that reasonable maintenance of the Project will not require any
extraordinary procedures; 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 he shall faithfully perform the Work 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
WIND RESISTANCE
7 It is understood that the specific location of the project is the Town Center Park and its
permanent public installation is integral to this Agreement. The ARTIST agrees that the
project shall be constructed to meet the wind resistance requirements set forth in the Florida
Building Code.
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 vvithout the prior written consent of the
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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 reproduce, 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 paI1ies 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 aITange 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 all Work performed under this Agreement shall comply with all
applicable patent, trademark and copyright laws, rules, regulations and codes. The ARTIST
fUl1her agrees that the Work will not utilize any protected patent, trademark or copyright
unless ARTIST has obtained proper permission and all releases and other necessary
documents.
8.3 If the ARTIST uses any protected material, process or procedure, the ARTIST shall disclose
such patent, trademark or copyright in the construction draw'ings and technical specifications.
ARTICLE 9
TERMINATION
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 ofthis Agreement for "cause" shall include failure to continuously perform the
Work in a timely manner calculated to meet or accomplish the objectives of the CITY as set
for1h in this Agreement, a breach of the provisions of this Agreement (notwithstanding
whether any such breach \-vas 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 Work, 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 Work.
ARTICLE 10
MISCELLANEO US
10.1 AUDIT RIGHT AND RETENTION OF RECORDS
CITY shall have the right to audit the books, records, and accounts of ARTIST that are
related to this Project. ARTIST shall keep such books, records, and accounts as may be
necessary in order to record complete and correct entries related to the Project.
ARTIST shall preserve and make available, at reasonable times for examination and audit by
CITY, all financial records, suppOliing 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 Florida Public Records Act is
determined by CITY to be applicable to ARTIST'S 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 NONDISCRIMINATION, EQUAL EMPLOYMENT OPPORTUNITY, and AMERICANS
WITH DISABILITIES ACT
ARTIST shall not unlawfully discriminate against any person in its operations and activities
or in its use or expenditure of funds in fulfilling its obligations under this Agreement.
ARTIST shall affirmatively comply with all applicable provisions of the Americans with
Disabilities Act (ADA) in the course of providing any services funded by CITY, including
Titles I and II of the ADA (regarding nondiscrimination on the basis of disability), and all
applicable regulations, guidelines, and standards. In addition, ARTIST shall take affirmative
steps to ensure nondiscrimination in employment against disabled persons. Such actions
shall include, but not be limited to, the following: employment, upgrading, demotion,
transfer, recruitment or recruitment adveliising, layoff, termination, rates of pay, other forms
of compensation, terms and conditions of employment, training (including apprenticeship),
and accessibility.
ARTIST'S decisions regarding the delivery of services under this Agreement shall be made
without regard to or consideration of race, age, religion, color, gender, sexual orientation,
national origin, marital status, physical or mental disability, political affiliation, or any other
factor which cannot be lavvfully used as a basis for service delivery.
ARTIST shall not engage in or commit any discriminatory practice in violation of the Miami
Beach Human Rights Ordinance in performing any services pursuant to this Agreement.
10.3 PUBLIC ENTITY CRIMES ACT
ARTIST represents that the execution of this Agreement will not violate the Public Entity
Crimes Act (Fla. Stat. 9287.133), which essentially provides that a person or affiliate who is
a contractor, consultant or other provider and who has been placed on the convicted vendor
list following a conviction for a Public Entity Crime may not submit a bid on a contract to
provide any goods or services to CITY, may not submit a bid on a contract with CITY for the
construction or repair of a public building or public work, may not submit bids on leases of
real property to CITY, may not be awarded or perform work as a contractor, supplier,
subcontractor, or consultant under a contract with CITY, and may not transact any business
with CITY in excess of the threshold amount provided in Section 287.017, Florida Statutes,
for category two purchases for a period of 36 months from the date of being placed on the
convicted vendor list. Violation of this section shall result in termination of this Agreement
and recovery of all monies paid hereto, and may result in debarment from CITY'S
competitive procurement activities.
In addition to the foregoing, ARTIST further represents that there has been no detelmination,
based on an audit, that it committed an act defined by Section 287.133, Florida Statutes, as a
public entity crime and that it has not been formally charged with committing an act defined
as a public entity crim~ regardless of the amount of money involved or whether ARTIST has
been placed on the convicted vendor list.
10.4 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 orjoint venture,
and furthermore, this Agreement does not constitute a work for hire arrangement or
agreement.
10.5 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.
10.6 NOTICES
Whenever either party desires to give notice to the other, such notice must be in writing, sent
by certified United States 1'l/fail, postage prepaid, return receipt requested, or by hand-delivery
'vvith a request for a written receipt of acknowledgment of delivery, addressed to the part.y 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 follo'vving:
FOR CITY:
Chief Fred Maas, Interim City Manager
18070 Collins Avenue
Sunny Isles Beach, FL 33160
with copies to:
Hans Ottinot, City Attorney
18070 Collins Avenue
Sunny Isles Beach, FL 33160
FOR ARTIST:
Rafael BalTios
100 Lincoln Road, Suite 1044
Miami Beach, Florida 33139
10.7 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 fOlih in the
Scope of Services 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.
10.8 CONFLICTS
Neither ARTIST nor its employees shall have or hold any continuing or frequently recurring
employment or contractual relationship that is substantially antagonistic or incompatible with
ARTIST'S loyal and conscientious exercise of judgment related to its performance under this
Agreement.
ARTIST agrees that none of its officers or employees shall, during the term of this
Agreement, serve as an expert witness against CITY in any legal or administrative
proceeding in which he or she is not a party, unless compelled by court process. Further,
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ARTIST agrees that such persons shall not gi ve sworn testimony or issue a report or writing,
as an expression of his or her expert opinion, which is adverse or prejudicial to the interests
of CITY in connection with any such pending or threatened legal or administrative
proceeding. The limitations of this section shall not preclude ARTIST or any other persons
from representing themselves in any action or in any administrative or legal proceeding.
10.9 CONTINGENCY FEE
ARTIST warrants that it has not employed or retained any company or person, other than a
bona fide employee working solely for ARTIST, to solicit or secure this Agreement and that
it has not paid or agreed to pay any person, company, corporation, individual or firm, other
than a bona fide employee working solely for ARTIST, any fee, commission, percentage,
gift, or other consideration contingent upon or resulting from the award or making of this
Agreement. For a breach or violation of this provision, The CITY shall have the right to
terminate this Agreement without liability at its discretion, or to deduct from the Agreement
price or otherwise recover the full amount of such fee, commission, percentage, gift or
consideration.
10.10 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.
10.11 COMPLIANCE WITH LA WS
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.
10.12 SEVERANCE
In the event this Agreement or a portion of this Agreement is found by a court of competent
jurisdiction to be invalid, the remaining provisions shall continue to be effective unless CITY
or ARTIST elects to terminate this Agreement. The election to terminate this Agreement
based upon this provision shall be made within seven (7) days after the finding by the court
becomes final.
10.13 JOINTPREPARATION
The parties hereto acknowledge that they have sought and received whatever competent
advice and counsel as was necessary for them to form a full and complete understanding of
all rights and obligations herein and that the preparation of this Agreement has been ajoint
effort of the parties, the language has been agreed to by parties to express their mutual intent
and the resulting document shall not, solely as a matter of judicial construction, be construed
more severely against one of the parties than the other.
10.14 PRIORITY OF 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
Aliicles I through 13 of this Agreement shall prevail and be given effect.
10.15 APPLICABLE LAW AND VENUE
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 County, Florida. BY ENTERING INTO THIS AGREEMENT, ARTIST AND
CITY EXPRESSL Y WAIVE ANY RIGHTS THEY MA Y HA VE TO A TRIAL BY JURY
OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS
AGREEMENT.
1 0.16 ATTORNEY'S FEES
Ifthis matter is placed in the hands of an attorney for collection, or in the event suit or action
is instituted to enforce any ofthe 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 andjudgment
enforcement.
10.17 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. I 8 PRIOR AGREEMENTS
This document incorporates and includes all prior negotlatlOns, correspondence,
conversations, agreements, and understandings applicable to the matters contained herein and
the parties agree that there are no commitments, agreements or understandings concerning
the subject matter of this Agreement that are not contained in this document. Accordingly,
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the parties agree that no deviation from the terms hereof shall be predicated upon any prior
representations or agreements, whether oral or written. It is further agreed that no
modification, amendment or alteration in the terms or conditions contained herein shall be
effective unless contained in a written document in accordance with Section 10.16 above.
I 0.19 MULTIPLE ORIGINALS
This Agreement may be fully executed in duplicate (2) copies by all parties, each of which,
bearing original signatures, shall have the force and effect of an original document.
10.20 INSURANCE
ARTIST shall maintain, at its sole cost and expense, the following types of insurance
coverage at all times throughout the term of this Agreement or until final acceptance of the
Project by the Contract Administrator, whichever is later, only if ARTIST exercises the
option provided for in section 7.3:
a. Comprehensive General Liability in the minimum amount of Three Hundred
Thousand ($300,000) dollars per occurrence bodily injury, death, property damage,
and personal injury. This policy must also contain coverage for premises operations,
products and contractual liability.
b. Contractors must submit proof of Workers' Compensation and Employer's Liability
in the form of a Certificate ofInsurance. All other State regulations apply.
c. Automobile insurance is required in the amount of Three Hundred Thousand
($300,000) dollars if ARTIST will be parking vehicles on public property, which is
not a designated public parking space, to unload materials/supplies.
The CITY of Sunny Isles Beach must be named as an additional insured and policyholder on
all insurance certificates issued. All insurance policies must be issued by companies that are
authorized to do business in the State of Florida, and have a rating of B+ VI or better in the
current edition of Best's Key Rating Guide.
The policies of insurance referred to above shall not be subject to cancellation or changing
coverage except upon at least thirty (30) days prior written notice to the CITY, and then only
subject to the prior written approval of the Contract Administrator. Prior to the
Commencement Date of this Agreement, ARTIST shall provide Contract Administrator with
a Certificate ofInsurance for each such policy. ALL POLICIES SHALL NAME THE CITY
OF SUNNY ISLES BEACH, FLORIDA AS AN ADDITIONAL NAMED INSURED. All
such policies shall be obtained from companies authorized to do business in the State of
Florida with an A.M. Best's Insurance Guide (latest edition) rating acceptable to the CITY'S
Risk Manager, and any replacement or substitute company shall also be subject to the
approval of the CITY'S Risk Manager. Should ARTIST fail to obtain, maintain or renew the
policies of insurance referred to above, in the required amounts, the CITY may, at its sole
discretion, obtain such insurance, and any sums expended by CITY in obtaining said
insurance, shall be repaid by ARTIST to CITY, plus ten percent (10%) of the amount of
premiums paid to compensate CITY for its administrative costs. If ARTIST fails to repay
n~j'"">,
CITY'S expenditures within fifteen (15) days of demand, the total sum o'vved shall accrue
interest at the rate of twelve percent (12%) until paid, and such failure shall be deemed an
event of default hereunder.
Notwithstanding the insurance requirements in this subsection 10.19, ARTIST shall be
solely responsible for the safe keeping and preservation of any and all Work, and of the
Project, and shall be solely responsible and liable for any risk of loss or damage to any
and all Work, and/or to the Project, up to the CITY'S final written acceptance of the
Project. In the event that all or any portion of the "Vork, or the Project, is lost, stolen,
damaged, or destroyed (whether in whole or in part) prior to the CITY'S final written
acceptance of the Project, ARTIST shall be solely responsible for undertaking such
corrective measures as shall be deemed reasonably necessary by the CITY, to repair,
replace, redo, and/or restore any and all lost, stolen, damaged, and/or destroyed (as the
case may be) portions of the Work, or of the Project, and such measures shall be
undertaken in accordance with means and methods, as well as a completion schedule,
as shall be approved by the Contract Administrator, such approval not to be
unreasonable withheld. Further, such measures shall be undertaken at ARTIST'S sole
cost and expense, at no additional cost, and/or liability to the CITY.
10.21 INDEIvINIFICA TION
ARTIST agrees to indemnify and hold harmless the CITY OF SUNNY ISLES BEACH and its
officers, employees and agents, from and against any and all actions, claims, liabilities, losses,
and expenses, including, but not limited to, attorneys' fees, for personal, economic or bodily
injury, wrongful death, loss of or damage to property, at law or in equity, which may arise or be
alleged to have arisen from the negligent acts, errors, omissions or other negligent conduct of
the ARTIST, its employees, agents, sub-consultants, or any other person or entity acting under
ARTIST'S control, in connection with the ARTIST'S performance of the Work pursuant to this
Agreement; and to that extent, the ARTIST shall pay all such claims and losses and shall pay
all such costs and judgments which may issue from any lawsuit arising from such claims and
losses, and shall pay all costs and attomeys' fees expended by the CITY in the defense of such
claims and losses, including appeals. The parties agree that one percent (I %) of the total
compensation to the ARTIST for performance of the Work under this Agreement is the specific
consideration from the CITY to the ARTIST for the ARTIST'S Indemnity Agreement.
The ARTIST'S obligation under this Subsection shall not include the obligation to indemnify
the CITY OF SUNNY ISLES BEACH and its officers, employees and agents, from and against
any actions or claims which arise or are alleged to have arisen from negligent acts or omissions
or other negligent conduct of the CITY and its officers, employees and agents. The parties each
agree to give the other pmiy prompt notice of any claim coming to its knowledge that in any
way directly or indirectly affects the other pmiy.
IN WITNESS WHEREOF, the parties have made and executed this Agreement on the
respective dates under each signature: CITY of Sunny Isles Beach, Florida, signing by
and through its Mayor, authorized to execute same by the City Commission, and
ARTIST, duly authorized to execute same.
WITNESSES:
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JaneHines, CMC, c:ity Clerk
Rafael BalTios
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Date Executed:
CITY
CITY OF SUNNY ISLES BEACH, Florida
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,:Norman s. Edelcup, Mayor/
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EXHIBIT A
SCOPE OF SERVICES
ARTWORK/PROJECT: The sculpture entitled "Contained Energy" shall be composed of three
large cubic elements. Fabricated with fiberglass of various thickness, internally structured with a
treated steel mesh, a high density foam, gel-coat and finally, sprayed with "Carboline" a urethane
two component paint (Epoxycal) that includes an ultraviolet protection of its color (see model
sample of internal elements). The dimensions of this scul pture will be of approximately thilteen and
one half feet tall by eight feet wide by two feet deep (l3Yz' x 8'x 2'- see photo montage provided).
PURPOSE: ARTIST will design, fabricate and install an artwork/Project to commemorate the
CITY'S Art in Public Places projects.
LOCA TION OF FACILITY/SITE: Sunny Isles Beach Government Center located 18070 Collins
A venue.
ADMINISTRATIVE COORDINATION: The CONTRACT ADMINISTRATOR may designate a
public art project manager. The ARTIST shall maintain regular communication with the public art
project manager via phone, fax, letter or e-mail.
DESIGN COLLABORATION: During the design of the artwork, the ARTIST shall collaborate
and coordinate with the Contract Administrator and the CITY'S designated Architect/Engineer,
Construction Manager, and General Contractor, respectively, at the Facility/Site. The design of the
artwork shall be coordinated with the Facility/Site design process in the following areas: aesthetics,
public presentations, construction documents, cost estimates and Facility project schedules. Should
the design of the mtwork require specialized professional services, the ARTIST shall hire an
appropriate sub-consultant and/or sub-contractor subject to the prior written approval of the Contract
Administrator. Upon approval of the artwork design, the ARTIST shall create independently all
necessary construction documents for the mt and ancillary/suPPOlt facilities needed to install the art
as required by the CITY and/or applicable laws and codes; or provide all necessary information on a
timely basis in the event that relevant components of the art\.vork design must be incorporated into
the final construction documents for the Facility, if appropriate.
CONSTRUCTION AND INSTALLATION COORDINATION: During the installation of the
artwork, the ARTIST shall collaborate and coordinate with the Contract Administrator. The ARTIST
shall coordinate the installation of the artworks with the Facility construction schedule and install the
artwork in compliance with the Facility construction documents. The ARTIST shall be responsible
for construction oversight during the fabrication and integration of all ARTIST -designed
components, whether fabricated by ARTIST'S subcontractors or included in construction documents
to be fabricated and installed by others.
DELIVERABLES: the ARTIST shall provide the following deliverables:
I-A Research.
t", , ."'"
I. The ARTIST shall provide documentation of background research involving site
specific environmental and cultural elements, site documentation, and future users of
the Facility.
2. The research phase includes two, two-day, site visits for meetings, including an initial
orientation visit, a coordination meeting with the design team, and community
representatives and partner agency presentation meeting(s).
I-B Design Development. The ARTIST shall complete the design development of the approved
artwork conceptual design and shall secure its approval from the CITY COMMISSION.
Approval and notice to proceed on fabrication shall occur after an architectural coordination
review and submittal of all artwork design development deliverables. Based on the
requirements of the approved aliwork conceptual design, the CITY COMMISSION can
waive the submittal of any unnecessary design development deliverables or postpone the
submittal to the fabrication and installation phase.
I. The ARTIST shall submit final design drawings for fabrication, aliist proofs, material
samples, artwork and artwork support specifications for inclusion in Facility
construction documents, verified cost estimate, sub-contractor list, building pem1its,
and a fabrication and installation schedule.
2. If the verified cost exceeds the budget, the ARTIST is obligated to redesign the
artwork to fit within the established budget inclusive of all payments to the ARTIST.
3. This phase includes a Site visit for coordination and presentation purposes.
I-D Fabrication and Installation. The ARTIST shall fabricate, deliver and install all aliwork and
artwork support components as per the approved design development drawings.
I-E Final Conservation Documents. The ARTIST shall submit all photographic documentation
and completed cataloguing forms. If the ARTIST utilizes computer technology in the
fabrication of the artwork, the ARTIST will submit electronic copies of any computer files
that will support on-going operations or future repairs and conservation of the artwork.
COMPLETION AND INSPECTION: Upon completion and installation of all designed and
fabricated components, the ARTIST shall be responsible for obtaining final approval from the
CONTRACT ADMINISTRATOR.
PHOTOGRAPHIC DOCUMENTATION: Professional photo-documentation suitable for
publication shall include images of all major aspects of the entire project. The ARTIST -supplied
photo-documentation shall be reproducible, at no cost to the CITY, for any and all applicable uses by
the CITY.
<:' I D
TIME LINE FOR COMPLETION: ARTIST shall be aware of Facility design and construction
time lines and shall ensure that all art\vork components are completed and installed according to the
established schedule.
PERMITS: It shall be ARTIST'S responsibility, where applicable, to obtain all necessary permits
as required in cooperation with the Architect and General Contractor, and provide proof of same to
the Contact Administrator prior to fabrication. The CITY agrees to pay for any required pe1ll1it fees.
EXHIBIT A-I
PROJECT SCHEDULE
The project shall be completed within 90 working days from the date of the CITY issued a notice to
proceed.
('/ n
EXHIBIT B
COMPENSATION AND SCHEDULE OF PAYMENTS
ARTIST will be paid the specified installment, upon submitting invoice and documentation
substantiating satisfactory completion of each phase of Work and upon the CITY'S acceptance of
said portion of the Work as detailed in the installment invoice. CITY shall pay ARTIST the total
sum of ONE HUNDRED AND SIXTY THOUSAND Dollars ($160, 000.00) for Work that shall
include all costs associated with design development and fabrication ofthe artwork, materials, labor
by sub-consultants and subcontractors, delivery and installation.
Payments to ARTIST shall be made for Work satisfactorily completed according to the follO\ving
schedule:
I. Forty Eight Thousand Dollars ($48, 000.00), which is approximately 30% of the fixed fee, to
be paid upon execution of this Agreement.
2. Fotty Thousand Dollars ($40, 000.00), which is approximately 25% of the fixed fee, to be paid
upon submission to and acceptance by the CONTRACT ADMINISTRATOR of all conceptual
design deliverables as written in the scope of work and obtaining approval of the artwork
conceptual design proposal from the City Commission.
3. Forty Thousand Dollars ($40,000.00), which is approximately 25% of the fixed fee, to be paid
upon submission to and approval by the CONTRACT ADMINISTRATOR of photographic
documentation demonstrating that the att\,york is 100% fabricated. At Contract
Administrator's sole option, Contract Administrator may deem that a physical inspection of the
artwork is warranted prior to acceptance and payment, and ARTIST shall make the at1work
available to Contract Administrator.
4. Thit1y-Two Thousand Dollars ($32, 000.00), which is approximately 20% of the fixed fee, to
be paid upon delivery, installation, and acceptance of the artwork.
UNFORESEEN COSTS: For purposes of this Section, unforeseen costs shall not include expenses
that the Contract Administrator reasonably determines should have been contemplated by ARTIST
when developing the Project budget, including the original design and related at1work budget.
SJB
EXHIBIT C
Catalog #
CITY OF SUNNY ISLES BEACH ART IN PUBLIC PLACES
CA TALOGING FORM
I . Artist Information
A. I. Name:
2. Name you want to use on label and PR materials, if differs from above:
B. Date of Birth:
C. Place of Birth:
D. Address, e-mail, web site:
E. Contact Phone numbers
Business:
Home:
Fax:
F. One paragraph biography of ARTIST:
II. Work of Art
A. Title:
B. Medium:
C. 1. Dimensions in inches or centimeters:
H:
W:
D:
2. Image with frame (if any):
H:
W:
D:
D. Frame Description:
E. Inscription, marks:
,(') il rf"J
F. In case of portable and multiple artwork, note on ARTIST preference for
display (ex: sequential series, installation height, spacing, etc...):
G. Artwork with electronic components used:
-Name of item:
-Manufacturer info (address, telephone, fax, e-mail):
-Supplier info (address, telephone, fax, e-mail):
H. ARTIST'S statement:
III. Fabrication Information
A. Material(s) used in Aliwork:
B. Material Finish:
C. Materials used in the presentation of the project (maquette):
D. Fabricators (name, address, phone, fax, e-mail, web site):
E. Fabrication method (attach diagrams or drawings):
F. Architect/Engineer (name, address, telephone, fax, e-mail):
IV. Installation
A. Installation executed by (name, address, phone, fax, e-mail, website):
B. Installation method (attach diagram of substructure, footings):
C. Date of Installation:
V. External Factors
A. Describe physical positioning of the ariwork:
B. Describe existing environmental factors which may affect the condition of the
artwork:
0]]"')
C. If the work is site-specific, describe the relationship of the \vork to its site:
VI. Maintenance (attach schedule of maintenance for specific items: light bulb,
electronics etc...)
A. Shor1-term:
B. Long-term:
C. Note desired appearance of the artwork:
VII: Digital copies for use in repair of sound art and graphic reproduction:
Signature
Date
('\ :J n
City Commission
Norman S. Edelcup
Mayor
Roslyn Brezin
Vice Mayor
Gerry Goodman
Commissioner
Danny Iglesias
Commissioner
Lewis J. Thaler
Commissioner
A. John Szerlag
City Manager
Hans Ottino!
City Attorney
Jane A. Hines
City Clerk
March 3 I , 2006
Raphael Barrios
100 Lincoln Road, Suite 1044
Miami Beach, Florida 33139
Re: Sculpture at Sunny Isles Beach's Town Center Park
Dear Mr. Barrios:
This letter is a follow-up to our conversation and shall serve as a letter agreement to memorialize and
crystallize yOUi' ag:'ccment ".,':th thc City r~g~~rding th~ fo!lo\',illg it2i1~S as they relate tc tl1~ scu!pt::re:
Final Dimension of the Sculpture
The sculpture's dimensions shall be as follows:
Between fifteen and sixteen feet tall by eight feet wide by two feet deep (15-] 6' x 8' x 2')
The above mentioned dimensions shall be consistent with the plans you are required to submit to the
City for review and approval. Any deviation or amendment must be made in writing and approved by
the City.
Site for Installation
The sculpture shall be delivered and installed to the City's satisfaction at the Town Center Park.
One (1) Year Warranty
You agreed to provide the City a one (I) year warranty to cover any mechan ical defects with regard to
the construction and installation of the sculpture. Specifically, that the sculpture is fit for its intended
use and is not unsafe or subject to defective design, workmanship or manufactured from inadequate or
inferior materials.
Should you have any questions regarding any of the above-listed items, please do net hesitate to call
me. Please be advised that Jorge L. Vera, Assistant City Manager, is the Project ~anager, please
address all technical-related inquiries for this project to Mr. Vera. \
Sincerely, Read and agree, I . ,~I
" '/ [ ,~/l'
Rar~a~~Barrios \ \\,/'
'~~rAtt, '-1
PSJlj blpr
cc: Hans Ottinot, City Attorney
A. John Szerlag, City Manager
Jorge Vera, Assistant City Manager
;FlI~n
City Commission
Norman S. Edelcup
Mayor
Roslyn Brezin
Vice Mayor
Gerry Goodman
Commissioner
Danny Iglesias
Commissioner
Lewis J. Thaler
Commissioner
Police Chief Fred Moo,;
Interim City Manager
Hans Ottinot
City Attorney
Jane A. Hines
City Clerk
18070 Collins Avenue, Sunny Isles Beach, FL 33160
305.947.0606 www.sibfl.net
February 23, 2006
Rafael Barrios
100 Lincoln Road, Suite 1044
Miami Beach, Florida 33 139
Re:
"Contained Energy" Commissioned Artwork Agreement for Town
Center Park
Dear Mr. Barrios:
At its regular meeting of February 16, 2006, the City Commission adopted
Resolution No. 2006-893, which approved the above agreement. Encolsed are the
two (2) original agreements for execution and witnessing.
Upon completion, please return both originals to my attention. We will then finalize
processing of the Agreements and return one original agreement and a copy of the
approving res~lution to your attention.
Should you have any questions related to the processing of this agreement, please
call me at (305) 792-1703. However, should you have any questions related to
performance of this agreement, please call Jorge L. Vera, Assistant City Manager, at
(305) 792-1701.
Thank you.
Very truly yours,
~W~
Priscilla Walker
Deputy City Clerk
Attachments:
cc: Police Chief Fred Maas, Interim City Manager (cover letter only)
Hans Ottinot, City Attorney (cover letter only)
Jorge L. Vera, Assistant City Manager (cover letter only)
ShaUll Gelvez, Contracts Administrator (cover letter only)
Barrios, Rafael Artist Agrmt Exec Req Tran Ltr
City Commission
Norman S. Edelcup
Mayor
Roslyn Brezin
Vice Mayor
Gerry Goodman
Commissioner
Danny Iglesias
Commissioner
Lewis J. Thaler
Commissioner
A. John Szerlag
City Manager
Hans Ottinot
City Attorney
Jane A. Hines
City Clerk
AprillO,2006
Rafael Barrios
100 Lincoln Road, Suite 1044
Miami Beach, Florida 33139
Re:
"Contained Energy" Commissioned Artwork Agreement for Town
Center Park
Dear Mr. Barrios:
At its regular meeting of February 16, 2006, the City Commission adopted
Resolution No. 2006-893, which approved the above agreement. Enclosed are an
executed, original agreement and a certified copy of the approving resolution for
your files.
Thank you.
Sincerely,
~~,~
Jane A. Hines, CMC
City Clerk
Attachments
c: A. John Szerlag, City Manager
Hans Ottinot, City Attorney
Jorge L. Vera, Assistant City Manager
Jeff Maxim, Assistant to the City Manager
Shaun Gelvez, Contracts Administrator
Barrios, Rafael Artist Exec Agmt T ran Ltr