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Resolution 78-15711 RESOLUTION NO. 78-15711 A RESOLUTION AUTHORIZING EXECUTION OF AGREEMENT BETWEEN CITY OF MIAMI BEACH AND ROY LICHTENSTEIN AND ART IN PUBLIC PLACES, INC. , FOR CREATION OF SCULPTURE TO BE LOCATED IN FRONT OF THE THEATER OF PERFORMING ARTS. WHEREAS, the City Commission of the City of Miami Beach has determined that it is in the best interests of the City of Miami Beach and its inhabitants to employ Roy Lichtenstein to create a "Mermaid" sculpture to be placed in front of the Theater of Performing Arts, sketches of said sculpture being heretofore presented to the City Commission for approval at its meeting of August 17, 1977 , and • WHEREAS, said Roy Lichtenstein, artist, is to be paid $100,000 for said commission, said $100,000 to be split 50-50 by the National Endowment For The Arts and Art in Public Places, Inc. , each paying $50,000, and WHEREAS, an agreement has been prepared between the City of Miami Beach and Roy Lichtenstein and Art in Public Places, Inc. , with compensation as stated above, a copy of which is attached hereto and made a part hereof, and WHEREAS, the City Attorney has approved the agreement as to form, and the City Manager has recommended that the City Commission enter into the same, and WHEREAS, the City Commission of the City of Miami Beach is familiar with the provisions of said agreement; NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and the City Clerk be and they are hereby authorized and directed to execute said agreement in the name of and on behalf of the said City. • PASSED and ADOPTED this 6th day of September , 1978. ' • 4.4(44 Mayor Attest: City Clerk OFFICE OF THE CITY ATTORNEY-1700 CONVENTION CENTER DRIVE-MIAMI BEACH.FLORIDA 33139 _l AGREEMENT THIS AGREEMENT, made and entered into this 6th day of September , 1978, by and between CITY OF MIAMI BEACH, a municipal corporation of the State of Florida, hereinafter referred to as the "CITY" , and ROY .LICHTENSTEIN, INC, , a Delaware corporation, here- inafter referred to as the "ARTIST" and ART IN PUBLIC PLACES, INC. WITNESSETH : WHEREAS, the CITY desires to retain the ARTIST to provide a certain work of art prescribed herein in connection with the Theater of The Performing Arts; and . WHEREAS, the CITY having investigated the qualifications of the, ARTIST to perform the work herein contemplated and found them satisfactory through the National Endowment For The Arts and ART IN PUBLIC PLACES , INC. ; and WHEREAS, the ARTIST having examined the scope of the services required hereunder, and having expressed its desire and willingness to provide..such services, and having presented the _ • of its employee, ROY LICHTENSTEIN, qualifications/to the CITY in support of its expressed desires; and WHEREAS, as a result of the aforementioned mutual under- i standings, the CITY desires to enter into this Agreement with the ARTIST and ART IN PUBLIC PLACES, INC. ; and WHEREAS, the City Manager and. the City of Miami Beach Art in Public Buildings Committee have recommended, and the City Council of said CITY has approved the selection of the ARTIST to perform such services and the ARTIST has agreed to accept employment upon the terms and conditions hereinafter set forth; NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the CITY agrees to employ the ARTIST and the ARTIST agrees to perform all required services in connection with the work as described herein, upon the following terms and conditions, namely: OFFICE OF THE CITY,ATTORNEY-1700 CONVENTION CENTER DRIVE-MIAMI BEACH,FLORIDA 33139 SECTION I - CITY OBLIGATIONS The CITY agrees that it will furnish to the ARTIST any plans and other data available in the CITY files pertaining to the work to be performed under this Agreement, and prepare the foundation to receive the proposed sculpture. SECTION II - ARTIST'S SERVICES Upon execution of this Agreement, the ARTIST agrees that he will perform services in connection with the work as indicated in the following: A. Conferences with representatives of the CITY to determine the full scope, concept and intent of the work called for under this Agreement. B. Create and fabricate final sculpture in accordance with Exhibit "A" . C. Personally supervise and administrate the complete .. construction and installation called for. D. Install the completed work. E. Correct any defect in workmanship which may appear within one year after date of delivery of said final sculpture. SECTION III - TIME . FOR COMPLETION . The services to be required of the ARTIST as set forth in •Section II -Artist's Services, Paragraph A through E, commenced subsequent to the execution of this Agreement and shall be installed and completed within one year from this date. A reasonable extension of contract time will be granted in the event there is a delay on the part of the CITY in fulfilling its part of the Agreement or should conditions beyond the ARTIST's control or acts of God render performance of his duties impossible. -2- • OFFICE OF THE CITY ATTORNEY-1700 CONVENTION CENTER DRIVE-MIAMI BEACH,FLORIDA 33139 SECTION IV - COMPENSATION ART IN PUBLIC PLACES, INC. agrees to pay and the ARTIST agrees to accept for services rendered, pursuant to the work in accordance with the terms and conditions of this Agreement (Section II - Artist'S Services, Paragraphs A through E, and all incidental work herein described) , a total fee of One Hundred Thousand Dollars ($100, 000. 00) to be funded as follows: $50, 000 from the National Endowment For The Arts and $50, 000 from its own funds which have been raised for this purpose. SECTION V - PARTIAL PAYMENTS ART IN PUBLIC PLACES, INC. will make payments to the ARTIST in accordance with the following schedule for all authorized work performed: 1. Upon execution of this Agreement and advancement of funds from National Endowment For The Arts, Fifty Thousand Dollars ($50, 000.00) . 2. Upon installation of the completed work, and final acceptance and approval of the sculpture by the City Manager and ART IN PUBLIC PLACES, INC. , Fifty Thousand Dollars ($50 ,000. 00) . SECTION VI - RIGHT OF DECISIONS. All services shall be performed by the ARTIST to the satisfaction of the CITY who shall decide all questions, difficulties and disputes of whatever nature which may arise under or by reason of this Agreement, the prosecution and fulfillment of the services hereunder, and the character, quality, amount and value thereof, and the CITY' S decisions upon all claims, questions, and disputes shall be final, conclusive and binding upon the parties hereto unless such determination is clearly arbitrary or unreasonable. Adjustments of compensation and contract time because of any major -3- OFFICE OF THE CITY ATTORNEY-1700 CONVENTION CENTER DRIVE-MIAMI BEACH,FLORIDA 33139 changes in the work that might become necessary or be deemed desirable as the work progresses shall be left to the absolute discretion of the CITY. In the event that the ARTIST does not concur in the judgment of the CITY as to any decisions made by him, he shall present his written objections to the City Manager, and the CITY and the ARTIST shall abide by the decision of the City Council of said CITY. SECTION VII - OWNERSHIP OF SCULPTURE The sculpture created by the ARTIST shall become the property of the CITY. SECTION VIII - NOTICES Any notices, reports, or other written communications from the ARTIST to. the CITY shall be considered delivered when posted by certified mail or delivered in person to the CITY. Any notices, reports, or other communications from the CITY to the ARTIST shall be considered delivered when posted by certified mail to the ARTIST at the last address left on file with the CITY, or delivered in person to said ARTIST or his authorized representa- tive. SECTION IX - SUBLETTING The ARTIST shall not sublet, assign, or transfer any work under this Agreement without the written consent of the CITY. SECTION X - WARRANTY The ARTIST warrants that he has not employed or retained any company or person, other than a bona fide employee working solely for the ARTIST, to solicit or secure this contract, and thathehas not paid or agreed to pay any company or person, other than a bona fide employee working solely for the ARTIST any fee, commission, percentage fee, gifts or any other considerations, contingent upon or resulting from the award or making ofthis contract. For breach or violation of this warranty, the CITY shall -4- OFFICE OF THE CITY ATTORNEY-1700 CONVENTION CENTER DRIVE-MIAMI BEACH,FLORIDA 33139 have the right to annul this contract without liability. SECTION XI - CANCELLATION OF AGREEMENT - It is expressly understood and agreed that the CITY and ART IN PUBLIC PLACES, INC. may terminate this Agreement without penalty, in which event the CITY'S sole obligation to the ARTIST shall be payment for the work performed, if any, previously authorized. SECTION XII - INSURANCE The ARTIST shall not commence work on thiscontract until he has obtained the insurance required under this Section and such insurance has been approved by the CITY. PUBLIC LIABILITY AND PROPERTY DAMAGE INSURANCE: The ARTIST shall take out and maintain during the life of this Agreement, public liability and property damage insurance to protect him and any subcontractor performing work covered by this Agreement, from claims for damage for personal injury, including accidental death, as well- as from claims for property damage, which may,, arise from operations under this Agreement, whether such operations be by himself or by any subcontractor or by anyone directly or indirectly employedby either of them, and the amounts of such insurance shall beas follows: • 1' (1) Public .Liability Insurance in an amount not less than One Hundred Thousand .Dollars ($100,000) for injuries, including wrongful death to any one person. (2) Property Damage Insurance in an amount not less than Twenty-five Thousand Dollars ($25, 000) for damages on account of any one accident. (3) Contingent Liability: The above policies for Public Liability and Property Damage Insurance must be so written as to include Contingent Liability and Contingent Property Damage Insurance to protect the ARTIST against claims arising from the operations of subcontractors. -5 OFFICE OF THE CITY ATTORNEY-1700 CONVENTION CENTER DRIVE-MIAMI BEACH,FLORIDA 33139 The insurance policy shall be issued in a company authorized to do business under the laws of the State of Florida. Said insurance shall also insure, protect, and indemnify the .City of Miami Beach from any and all claims, obligations, demands or liability which may arise from or accrue by reason of the operations performed or to be performed under this Agreement by the said ARTIST. The ARTIST shall furnish a certificate of insurance to the Insurance and Safety Division of the City of Miami Beach, and approved by the City Attorney, prior to the commencement of • operations, which certificate shall clearly indicate that the ,ARTIST has obtained insurance in the type, amount and classifications as required for strict compliance with this Section and that no material change or cancellation of the insurance shall be effective without thirty (30) days prior written notice to the CITY. Compliance with the foregoing requirements shall not relieve the ARTIST of his liability and obligations under this . Agreement. SECTION XIII .- QUALIFICATIONS OF CONTRACTORS Any Contractors or Sub-Contractors performing work under the terms of this Agreement must hold a valid Certificate of Competency issued by the Construction Trades Qualifying Board, in accordance with Chapter 10 of the Code of Metropolitan Dade County, qualifying said person, firm, corporation or joint-venture to perform the work proposed. SECTION XIV - ENTIRETY OF AGREEMENT This writing embodies the entire Agreement and under- standing between the parties hereto, and there are no other agreements and understanding, oral or written, with reference to. the subject matter hereof that are no•t merged herein and superseded hereby. -6- • • OFFICE OF THE CITY ATTORNEY- 1700 CONVENTION CENTER DRIVE-MIAMI BEACH,FLORIDA 33139 No alteration, change, or modification of the terms of this Agreement shall be valid unless made in writing and signed by both parties hereto. This Agreement, regardless of where executed, shall be . governed by and construed according to the laws of the State of Florida. IN WITNESS WHEREOF, the parties hereto have executed these presents this 6th day of September, 1978. CITY OF MIAMI BEACH By: Mayor Attest: (a2111-614-e.. 3,'' ite7—ae,wc, City Clerk , . ROY LICHTENSTEIN, INC. By : , c --a� ( d Pres . Artist In the Pres ice of : • 44110' //.:- , C.! 72L4A21111 -1/1212321—L.44)---- ART IN PUBLIC PLACES, INC. , \ i 4 By: t g ' 0 f Al ft.._ Attest: , i •r f , \ ath i ., 'ecretari -7- 1 OFFICE OF THE CITY ATTORNEY• 1700 CONVENTION CINTER DRIVE •MIAMI BEACH,FLORIDA 33139 ORIGINAL RESOLUTION NO. 78-15711 (Authorizing agreement between CMB and Roy Lichtenstein and Art in Public Places, Inc. ,for creation of sculpture to be located in front of the Theater of Performing Arts)