2019-30804 Resolution RESOLUTION NO. 2019-30804
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING THE SELECTION OF WE ARE NICE
'N EASY, LLC TO DESIGN, FABRICATE AND DELIVER AN ORIGINAL
I TEMPORARY ART INSTALLATION ON THE NORTH BEACH WATER TANKS
LOCATED AT DICKENS AVENUE AND 75TH STREET; FURTHER,
APPROVING THE USE OF FY 2018/2019 CULTURAL ARTS COUNCIL FUNDS
ALLOCATED FOR THE TEMPORARY ARTISTIC INSTALLATION PROGRAM;
AND FURTHER AUTHORIZING THE CITY MANAGER AND CITY CLERK TO
EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH WE ARE NICE
'N EASY, LLC.
WHEREAS, on December 18, 2018, City's Art in Public Places Committee
("AiPP") unanimously approved a motion, declining to issue a Call to Artist for a temporary art
installation on the 41St Street corridor, instead recommending the City solicit creative
agencies develop a strategy for implementation of temporary art installations in select local
corridors and neighborhoods, and to also curate such installations on an ongoing basis; and
WHEREAS, the use of creative, multi-disciplinary graphic design and/or digital
temporary art installations can serve to educate and inspire communities, stimulate local
business corridors, increase pedestrian traffic and engage and transform communities; and
WHEREAS, on December 12, 2018, the Mayor and City Commission directed that the
Administration pursue efforts to beautify the City and bring arts and culture and temporary
artistic installations into areas in the City; and
WHEREAS, on February 1, 2019, the Administration issued a RFLI to artists for
temporary art installations for the North Beach Water Tanks, and on March 31, 2019, the City
received five (5) submissions, to which the Administration selected a submission by We Are
Nice 'n Easy; and
WHEREAS, on April 10, 2019, in lieu of a referral to the Neighborhoods and Community
Affairs Committee for further consideration, the Mayor and City Commission approved the
selection of We Are Nice 'N Easy, LLC for the design, fabrication and completion of a temporary
art installation on the North Beach Water Tanks located at Dickens Avenue and 75th Street, with
funding from Cultural Arts Council funds from the Temporary Artistic Installation Program.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby approve the selection of We Are Nice 'N Easy, LLC to design, fabricate and
deliver an original temporary art installation on the North Beach Water Tanks located at Dickens
Avenue and 75th Street; further, approve the use of FY 2018/2019 Cultural Arts Council funds
allocated for the Temporary Artistic Installation Program; and further authorize the City Manager
and City Clerk to execute a Professional Services Agreement with We Are Nice 'n Easy, LLC.
PASSED and ADOPTED this 10th day of April, 2019.
Mayor Dan Gelber
ATTEST:
Rafa E. Granado, City Clerk
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Agreement between
City of Miami Beach and We Are Nice'n_Easy
for Commissioned Artwork at North Beach Water Tanks
This is an Agreement, made and entered into (
this 7 day of 1 (A-7 , 2019, by and between: City
of Miami Beach, Florida a municipal corporation,existing under the laws of the State of Florida(hereinafter
referred to as City)and We Are Nice'n Easy, LLC an artist team comprised of Allison Matherly and Jeffrey
Noble, whose principal address is 760 NW 45th Street, Miami, FL 33127(hereinafter referred to as Artist).
WHEREAS, the City wishes to engage Artist to design, fabricate and install a unique and original
work of art (also referred to herein as the Artwork) at the North Beach Water Tanks, located at Dickens
Avenue and 75th Street, Miami Beach, FL which has previously been approved by the City(such location
hereafter referred to as the Site), at the agreed upon fees, and subject to all other terms and conditions, as
set forth in this Agreement; and
WHEREAS, Artist desires to contract with the City for performance of the aforestated services
relative to the Artwork, as hereinafter set forth.
NOW THEREFORE, City and Artist, in consideration of the mutual covenants and agreements
herein contained, agree as follows:
ARTICLE 1
DEFINITIONS AND 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(or Contract). This document, and other terms and conditions which may be included
in the exhibits and documents that are expressly incorporated by reference, as well as any
amendments thereto.
1.2 ARTIST (We Are Nice'n Easy). The individual selected to create the Artwork contemplated
pursuant to this Agreement.
1.3 Artwork. That certain unique and original work of art to be created by Artist and installed on the
Site, that has been approved by the City Commission, and is further described in Exhibit "A".
(Entitled, "Artist's Scope of Services"), attached hereto.
1.4 City. Shall mean the City of Miami Beach, Florida, a municipal corporation having its principal
offices at 1700 Convention Center Drive, Miami Beach, Florida, 33139. In all respects hereunder,
City's obligations and performance is pursuant to City's position as the owner of the Site acting in
its proprietary capacity with respect to the Site and Project. In the event City exercises its regulatory
authority as a governmental body, including to its regulatory authority for code inspections and
issuance of building or other applicable permits within its jurisdiction,the exercise of such regulatory
authority and the enforcement of any rules, regulations, laws and ordinances shall be deemed to
have occurred pursuant to City's regulatory authority as a governmental body and shall not be
attributable in any manner to City as a party to this Agreement.
1.5 [Intentionally omitted]
1.6 City Commission. Shall mean the governing and legislative body of the City.
1.7 City Manager. Shall mean the Chief Administrative Officer of the City.
1.8 Contract Administrator. Shall mean the designee(s)of the City Manager, who shall be the City's
authorized representative(s) to coordinate, direct, and review, on behalf of the City, all matters
related to the Work and the Project, except as otherwise provided herein.
1.9 [Intentionally omitted]
1.10 Contract (Agreement) Amendment. Shall mean a written order to Artist, approved by the City
and signed by the City's duly authorized representative, authorizing a change in the Work, or the
method and manner of performance thereof or an adjustment in the fees and/or the completion
dates, as applicable. Contract Amendments shall be approved by the City Commission, if they
exceed fifty thousand dollars ($50,000.00) or the City Manager if they are fifty thousand dollars
($50,000.00) or less (or other such amount as may be specified by the City of Miami Beach
Procurement Ordinance, as amended). Even for Contract Amendments of less than fifty thousand
($50,000.00), the City Manager shall retain the right to seek and obtain concurrence of the City
Commission for approval.
1.11 Exhibits. Shall mean the various exhibits attached to and incorporated in this Agreement and
referred to as follows:
Exhibit A: Artist's Scope of Services
Exhibit A-1: Project Schedule
Exhibit B: Compensation and Schedule of Payments
Exhibit C: Cataloging Form
Exhibit D: Project Budget
1.12 Notice to Proceed. A written notice issued by the Contract Administrator to Artist authorizing the
commencement of the Work.
1.13 Project. That certain unique and original work of art(also referred to as the Artwork)to be created
by Artist and installed on the Site, that has been approved by the City Commission, and is further
described in Exhibit"A", attached hereto.
1.14 Project Budget. Shall mean an amount budgeted by the City for the Project, as specified in Exhibit
"D", attached hereto.
1.15 Project Cost. Shall mean the total cost of the Project to the City including, design, development,
permitting, and installation costs, compensation to Artist, contingencies, and other miscellaneous
costs.
1.16 Project Scope. Shall mean the description of the Project, as specified in Exhibit "A", attached
hereto.
1.17 [Intentionally omitted]
1.18 Work. Any work and/or services required by Artist under this Agreement, as required to
successfully completing the Project(including,without limitation, work and/or services described in
Exhibit"A").
ARTICLE 2
SCOPE OF SERVICES
2.1 Artist shall perform all Work identified in this Agreement and Exhibit"A" for the design, permitting,
development, transportation, inspection, and installation of the Project. It is the mutual
understanding of the Artist and City that this work of art is temporary and the City may remove or
repaint the work of art at the City's discretion after one (1) year.
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2.2 Artist acknowledges and agrees that the Contract Administrator has no authority to make changes
that would increase, decrease, or otherwise modify the Scope of Services, and that any such
change and/or modification with respect to the Scope of Services (including, without limitation, the
time the Artist is obligated to commence and complete the Work, and the amount of compensation
the City is obligated or committed to pay the Artist), must be approved(if at all) by the City Manager
or the Mayor and City Commission, in their respective sole discretion, prior to implementation of
any change. Any such change or modification, if approved, shall be memorialized in writing as a
Contract Amendment.
2.3 Artist shall provide regular Project progress reports and/or deliverables in a form and manner
acceptable to the Contract Administrator.
2.4 Upon completion of the Project, Artist shall furnish the Contract Administrator with documentation
showing the completed Artwork as follows:
a. Artist shall provide Contract Administrator with high resolution and low resolution photographic
documentation of the work, showing and/or accurately depicting the completed Artwork. These
images are to be used for promotional and educational purposes related to the City of Miami Beach.
b. Artist shall provide Contract Administrator with a detailed written schedule and instructions for the
routine care, maintenance, and preservation specific to the Project, which shall be attached as
Exhibit (Cataloging Form) hereto.
2.5 Artist shall be solely responsible for the quality and timely prosecution, completion and installation
of the Work and the Project. Artist shall be responsible for designing the Project so that it can be
fabricated and installed without exceeding the approved Project Budget.
2.6 Artist acknowledges and warrants to City that an essential element of this Agreement is the skill
and creativity of Artist, and that it is solely responsible for the quality of the Project. Artist may not
subcontract and/or assign portions of the Work to another party, without the prior written approval
of the Contract Administrator. Notwithstanding the Contract Administrator's approval of any such
subcontract and/or assignment, Artist will still be held ultimately responsible for all portions of the
Work. Artist warrants to City that it shall be solely responsible for supervision of (and any
compensation to) any and all third parties, and that the City shall have no liability whatsoever,
whether financial or otherwise, with regard to same.
2.7 Artist agrees that all Work, and the completed Project, shall comply with all applicable Federal,
State, Miami-Dade County, and City laws, ordinances, codes and regulations. Artist shall be solely
responsible for obtaining any and all required approvals from all governmental authorities that have
jurisdiction over the Project and for obtaining all applicable permits related to the Project.
2.8 Artist shall not make any public information release in connection with the Project and/or the Work
without the prior written consent of the Contract Administrator.
2.9 Artist shall perform the Work in such manner and at such times so as not to cause interference with
any of the operations of.the City.
2.10 Artist shall be solely responsible for conducting any and all inspections of the Site for purposes of
ascertaining the condition of same for the proper execution of the Work, and for completion and
installation of the Project. To the extent any such information is in the City's possession, Contract
Administrator shall make available to Artist, without representation, any background materials
and information on matters affecting the Site.
2.11 When working on the Site, Artist shall promptly notify the Contract Administrator and City of Miami
Beach Public Works Department.
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2.12 Artist shall bear any transportation and storage costs resulting from the development, delivery,
storage, and installation of the Work and the Project.
2.13 Title to the Artwork shall pass to the City 1)following the Contract Administrator's inspection of the
Work; and 2) if the Work is approved, upon Contract Administrator's issuance of written final
acceptance of the complete installed Project in accordance with the process set out in Exhibit A.
Any risk of loss or damage to the Work 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.
2.14 Upon Contract Administrator's written final acceptance of the Project, all documents related to the
design, development, and installation of the Project including, without limitation, "as built"
documents, shall be turned over to the Contract Administrator and become the exclusive property
of the City. The Artist retains all copyright in all such preparatory documents relating to the Artwork,
but the City shall be free to exhibit and/or reproduce these documents for non-commercial purposes
as it deems necessary.
2.15 The responsibility of the Artist after final acceptance of the Project by the City is limited to the
warranties according to this Agreement; any terms pertaining to the Artist which are therein
expressly intended to survive termination and/or expiration of this Agreement;and any acts of gross
negligence and intentional wrong doing by the Artist.
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 and continuously prosecute the Work in accordance with the Project Schedule
set forth in Exhibit "A-1", attached hereto. It is the Artist's explicit responsibility to monitor and
coordinate all aspects of scheduling in conjunction with the Contract Administrator and City of
Miami Beach Public Works Department. Discrepancies in scheduling that may result in Artist's
requests for extension of time or other claim must be documented pursuant to Section 3.6 of this
Agreement.
3.2 The Artist shall perform his duties, obligations and responsibilities, as required by this Agreement,
in a timely manner. The Artist and the City shall work together to agree an installation timetable
and use their best endeavors to adhere to that timetable.
3.3 In the event that the Artist completes development of the Work in accordance with the above-
referenced Schedule and is delayed from installing the Work on or before the time specified in the
Schedule, the Artist shall be granted an extension of time to complete and install the Work, except
as specified herein, in no event shall City have any obligation to Artist, nor shall Artist have any
entitlement to, any additional compensation resulting from any delays in installation of the Work. If,
after the Notice to Proceed has been issued, the Artist is delayed from installing the Work in
accordance with the agreed installation schedule because the Site is not sufficiently ready for
installation to begin or for any other delay caused by City, then the City shall reimburse the Artist
for all out-of-pocket expenses incurred because of the delay provided that such costs are
documented to the City's satisfaction.
3.4 With respect to all other events of delay (other than those referenced in Section 3.3 above), the
Contract Administrator may grant a reasonable extension of time to Artist, but solely if there is any
unreasonable delay on the part of the City in performing its obligations hereunder, or if conditions
beyond Artist's control render timely performance of the Work impossible or unexpectedly
burdensome. The currently approved Schedule for the Work shall be the basis for interpreting any
and all time-associated provisions of the Agreement, including requests for time extensions.
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Artist acknowledges and agrees that, except as specified in Section 3.3, Artist's sole and exclusive
remedy for delays shall be a reasonable extension of time to complete and install the Work. In no
event shall City have or owe any obligation to Artist, nor shall Artist have any entitlement to, any
compensation resulting from delays, and NO CLAIM FOR DAMAGES OR ANY CLAIM OTHER
THAN FOR AN EXTENSION OF TIME SHALL BE MADE OR ASSERTED AGAINST CITY BY
REASON OF ANY DELAYS, including any claim or demand for payment or compensation of
any kind for direct, indirect, consequential, impact, or other costs, expenses, lost profits,
compensation, reimbursement or damages including costs of acceleration or inefficiency
arising because of delay, disruption, interference or hindrance from any cause whatsoever,
whether such delay, disruption, interference, or hindrance be reasonable or unreasonable,
foreseeable or unforeseeable, or avoidable or unavoidable; provided, however, such delays
are not due solely to fraud, bad faith or willful or intentional interference by the City in the
performance of its obligations hereunder, and then only where such acts continue after Artist's
written notice to the City of such alleged interference in accordance with the requirements of
Section 3.6.
3.5 Notwithstanding the foregoing, the City may, with the agreement of the Artist, adjust the schedule
of payments set forth in Exhibit B, as necessary, to account for Project-related delays that do not
arise from or relate to the Artist's actions or omissions and are beyond the Artist's reasonable
control.
3.6 Where any delay conditions arise, the Artist shall so notify the Contract Administrator in writing no
later than ten (10) days of the occurrence of the events giving rise to the claimed delay, with a
detailed explanation describing all of the circumstances beyond the Artist's control that do not
permit Artist to complete the Work as described in this Agreement in the time allotted, an
explanation of how the delay has specifically impacted Artist's Schedule, and any supporting
documentation relating thereto. In such event, the Artist agrees that the Contract Administrator
shall be the sole judge of what constitutes an event or circumstances "beyond the Artist's control."
Artist's failure to timely present a request for time extension or other claim in accordance with this
Article 3 shall be conclusively deemed a waiver, abandonment or relinquishment of any such claim,
it being expressly understood and agreed that the timely presentation of claims, in sufficient detail
to allow proper investigation and prompt resolution thereof, is essential to the administration of this
Agreement.
3.7 NOT USED.
3.8 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 major force 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 major forces 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.
3.9 The Contract Administrator may at any time suspend this Agreement for a period not exceeding
one hundred and eighty(180)days or such further period to which the parties may agree, by giving
written notice to the Artist of such suspension, which all shall become effective upon receipt by the
Artist of the written suspension notice. An equitable adjustment shall be made in the time of
performance of the Services, and the Agreement shall be modified accordingly, if the suspension
results in an increase in the time required for performance of the Services and compensation
payable to the Artist under Article II shall be modified in accordance with costs, if any, as
demonstrated and documented pursuant to Section 4.17 by the Artist to result directly from such
suspension.
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ARTICLE 4
COMPENSATION
4.1 City agrees to pay Artist; in the manner specified in Section 4.4 and Exhibit "B" (Compensation
and Schedule of Payments) here to, the amount of Fifty Thousand Dollars ($50,000.00), which
amount shall be the total compensation to Artist for the Project.
4.2 Artist may submit invoices for compensation no more often than on a monthly basis, but only after
the portion of the Work for which the invoice is submitted has been satisfactorily completed and
accepted by the Contract Administrator.
An original invoice shall be submitted to the Contract Administrator within fifteen (15) days of the
end of the month, except the final invoice, which must be received no later than thirty (30) days
after completion of all Work. Invoices shall designate the nature and portion of the Work performed
(percentage of completion). All invoices must be signed off and approved by the Contract
Administrator as a condition of approval for payment by City. A written Project progress report shall
accompany each invoice, describing the Work completed during that period. Photographic
documentation demonstrating progress of the Work shall also be included with each invoice, if
required by the Contract Administrator.
4.3 City shall pay Artist (but only for Work satisfactorily performed and accepted by the Contract
Administrator), within thirty (30) calendar days of receipt by the City of Artist's proper invoice.
Invoices shall be submitted by Artist to the City as follows: -
Brandi Reddick, Contract Administrator
City of Miami Beach
Cultural Affairs Program
1755 Meridian Avenue, Suite 500
Miami Beach, FL 33139
4.5 Notwithstanding any provision of this Agreement to the contrary, City may, at the sole and
responsible discretion of the Contract Administrator, withhold a portion of any or all payments 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, or which has not been
remedied or resolved in a manner satisfactory to Contract Administrator.
4.6 Payment shall be made to Artist at:
We Are Nice'n Easy
760 NW 45th Street
Miami, FL 33127
ARTICLE 5
CHANGES IN SCOPE OF SERVICES
5.1 Any significant changes in the scope of services, including, without limitation, any material change
in the Artwork or of the Project; or to Artist's compensation; or any other material changes in the
terms and conditions of the Agreement, must be approved in writing as an amendment to this
Agreement; must be executed by the parties; and is further subject to approval by the City Manager
or City Commission, as applicable, prior to implementation of same. City acknowledges that, due
to the nature of his practice, the Artist may make conceptual changes to the Artwork while working
on site, but will communicate with the Contract Administrator about such changes. Any such
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changes would only require an amendment to this Agreement if the resulting Artwork is radically
different from the audio and video presentation approved by City.
ARTICLE 6
ARTIST'S WARRANTIES
6.1 Artist warrants to the City that(a)the Project being commissioned is the original product of Artist's
own creative efforts; and (b)the Project is original, or in other words, an edition of one(1), and shall
in no way be duplicated, copied, and/or otherwise replicated by Artist with respect to any future
commissioned public or private projects.
6.2 Artist warrants to the City that reasonable maintenance of the Project will not require any
extraordinary procedures or efforts. For the avoidance of doubt, the Artist does not give any
warranty as to the level of maintenance that may be required as a result of the climactic conditions
in Miami.
6.3 Artist warrants to the City that it shall deliver the Project to the City free and clear of any liens from
any source whatsoever.
6.4 After the Artwork has been accepted by the City, the Artist shall not be responsible for any
deterioration caused by the climactic conditions in Miami or any defects caused by materials or
protective processes that the Contract Administrator has approved. Subject to the above, the Artist
warrants to the City that the Work be free from materials not approved by the Contract Administrator
and defective workmanship for two (2)years after the date of final written acceptance by the City,
including any defects or qualities causing or accelerating deterioration. If within two (2) years the
City finds the Work in need of repair caused by defective workmanship or the use of unapproved
materials or failure to follow any protective measures approved by City, such repairs will be made
at no expense to the City promptly and satisfactorily.
6.5 If Artist fails to remedy any failure, defect, or damage caused by a breach of the warranty provided
at clause 6.4 within a reasonable time after receipt of notice from City, the City shall have the right
to replace, repair, or otherwise remedy the failure, defect, or damage at the Artist's expense.
6.6. Artist with respect to all warranties, express or implied, shall:
a. Obtain all warranties that would be given in normal commercial practice;
b. Require all warranties to be executed, in writing, for the benefit of the City, if directed by the
Contract Administrator; and
c. Enforce all warranties for the benefit of the City, if directed by the Contract Administrator.
ARTICLE 7
OBLIGATIONS OF City
7.1 City shall:
a. Provide Artist, upon reasonable request, but without warranty or representation by City of any
kind, any background materials and information on matters affecting the Site.
b. Provide Artist with the Project Budget;
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c. Arrange for access so that Artist may enter upon the Site, during customary business hours,
for Artist to perform the Work;
d. Give prompt written notice to Artist whenever the City becomes aware of any development that
affects the scope or timing of the Work;
e. Arrange public meetings and consultations, as deemed necessary by the City Manager;
f. Review submitted materials in a reasonably timely manner;
g. Prepare and install, at its expense, a plaque or sign identifying Artist, the title of the Project,
materials used, year of completion, and a narrative explanation of the Project, and reasonably
maintain same in good repair; and
h. Reasonably assure that the Project is properly maintained, strictly in accordance with the
maintenance instructions supplied by the Artist, as set forth in Exhibit"C"; and
i. Give prompt written notice to Artist within a reasonable time after the discovery of any failure,
defect, or damage.
ARTICLE 8
ALTERATIONS OF THE SITE OR OF THE WORK
8.1 The City agrees to make all reasonable efforts to maintain the integrity of the Artwork. It is an
inherent nature of any site to be vulnerable to physical alterations of varying degrees that may arise
out of a functional need consistent with its intended design and usage and/or the operational
requirements of the Site. Respectively, the integrity and authenticity of the Work may become
compromised by an alteration of the Site if the Work is an integral component of the Site. It is with
the express understanding above that the Artist hereby agrees to waive all rights to monetary
compensation for any acts arising out of operational requirements which may cause alterations to
the Site and/or the Work.
The City shall notify the Artist of any proposed alteration of the Work or of the Site that would affect
the intended character and appearance of the Work, and shall consult with the Artist in the planning
of any such alteration. If any such alteration of the Site or of the Work is made without the express
written approval of the Artist, the Artist may elect, upon a minimum advance written notice of five
(5) business days, to enter upon the Site and at Artist's sole cost and expense paint over the
Artwork and remove or obliterate the public notice, plaque or sign referred to in Article 7 above, as
well as any signature or other emblem identifying the Artist with the Work, and may take such other
action as he/she may choose in order to disavow the Work.
8.2 The City agrees to take such reasonable measures, as it deems necessary, in its reasonable
discretion, to maintain the Artwork in accordance with the maintenance instructions provided by the
Artist, if any. City shall have the right to determine, after consultation with a professional
conservator, when (and if) repairs and restorations to the Artwork will be made. The City shall
attempt to notify Artist in the same manner as provided in Article 8 hereof and, in the event the City
has made reasonable efforts,without success, to notify Artist of its intended action, City shall have
no further liability to Artist, and Artist shall be deemed to have waived any and all claims that it may
have against City, as a result of such repairs or restoration to the Artwork provided that such repairs
are in accordance with the maintenance instructions provided by the Artist, or in the event of any
resulting damage or destruction of the Artwork. To the extent practical, the City may, in its sole
discretion, consider Artist in making or personally supervising significant repairs or restorations. If
City deems Artist's participation is necessary, Artist shall be paid a reasonable fee for any such
services, provided that City and Artist shall agree, in writing, prior to the commencement of any
significant repairs or restorations, upon said fee. All repairs and restorations shall be made in
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accordance with recognized principles of conservation and in accordance with maintenance
instructions provided by the Artist.
If the Artist fails or refuses to approve any repair or restoration, the City shall have the right to make
such repair or restoration in accordance with maintenance instructions provided by the Artist. To
the extent practical, as determined by the City at its sole discretion, the Artist shall be given the
opportunity to make or personally supervise significant repairs and restorations and the Artist may,
at the discretion of the City, be paid a reasonable fee for any such service, provided that both
parties prior to the execution of such services mutually agree upon the fee in writing.
ARTICLE 9
INTELLECTUAL PROPERTY
9.1 INTELLECTUAL PROPERTY.All copyrights, moral rights trademarks,service marks, logos and other
images related to the Artwork (if any), and any right to commercially exploit the same (all of the
foregoing, collectively and individually, the "Intellectual Property") shall be the exclusive property of
Artist. Artist may apply to register any mark or copyright which depicts, is derived from, represents,
duplicates, or is related to Artist the Artwork.
9.2 Notwithstanding Section 9.1 or any other term or condition of this Agreement,Artist hereby grants to
City a non-exclusive, irrevocable, and royalty-free license for the period that the Artwork is located at
the Site to reproduce, make, print and/or publish photographic, filmed, videotaped or audio
reproductions, of the Artwork(including, without limitation, any proposals for the Artwork)for any non-
commercial public promotional purpose, or any other non-commercial purpose that promotes or
identifies the Artwork as being exhibited within the North Beach Water Tanks, or more generally within
the City or as part of its Art in Public Places Program, including tourism-related promotional or
collateral materials with respect thereto, as determined solely by the City, in its discretion. In
furtherance of the foregoing irrevocable non-exclusive license, Artist hereby waives any rights,
including moral rights, that Artist may have to object to City's depiction of the Artwork as being
exhibited at the North Beach Water Tanks, in any promotional or collateral materials of the City. It is
understood that either of the parties to this Agreement may permit photographic, filmed, videotaped
• or other reproductions of the Artwork to appear in newspapers, magazines, periodicals,books, motion
picture films, videotaped films, and/or any other media. Notwithstanding anything to the contrary
herein, any reproduction of the Artwork for commercial purposes (including on merchandise or in
commercial advertising for third party products) shall be subject to the Artist's advance written
approval. In connection with any such reproduction and publication by a third party, that party shall
be solely responsible for arranging any consent and/or credit with Artist, and the City shall have no
liability to Artist and/or to third parties as a result of any failure by third parties to obtain authorization
by Artist, or give credit to Artist,for such third party uses.
9.3 Artist agrees that all Work shall comply with all applicable patent,trademark and copyright laws, rules,
regulations and codes. Artist further agrees that it will not knowingly use any third party's patent,
trademark or copyright unless Artist has obtained proper permission and all releases, and other
necessary documents. If Artist uses any protected material, process or procedure, Artist shall
disclose such patent, trademark or copyright in the technical specifications and, in any event, prior to
actual installation of the Artwork.
9.4 INFRINGEMENT. In the event that City learns of any infringement, threatened infringement, or
passing-off of all or any portion of the Artwork by a third party, City shall make all reasonable
efforts to notify Artist at the address provided in the Notices section of this Agreement. Artist shall
consult with City before bringing infringement actions against third parties but the decision to
commence proceedings shall be in the Artist's sole discretion. In any event, City and Artist will
reasonably cooperate with each other to prosecute any such action including, without prejudice to
the generality of this requirement, consenting to be a party to the proceedings.
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ARTICLE 10
TERMINATION
10.1 Termination for Cause. This Agreement may be terminated for cause by the City Manager, upon
thirty(30) days' prior written notice to Artist.
a. Termination of this Agreement for"cause" shall include a persistent and material failure to
continuously and diligently prosecute the Work in a timely manner calculated to meet or
accomplish the objectives of City as set forth in this Agreement; a material breach of the
provisions of this Agreement which has not been cured within 60 days of the Artist
receiving written notice of the same ; or for any other reason strictly necessary to protect
the health, safety, or welfare of the general public.
•
b. Notice of termination shall be provided in accordance with the Notices section of this
Agreement except that notice of termination which the City deems necessary to protect
the public health, safety, or welfare may be given by verbal notice, which shall be
promptly confirmed in writing in accordance with the Notices section of this Agreement.
c. In the event of a termination under this Article, the City shall be fully discharged from any
and all liabilities, duties and terms arising out of/or by virtue of this Agreement.
Notwithstanding the above, Artist shall not be relieved of liability to the City for damages
sustained by the City by any breach of the Agreement by Artist.The City, at its sole
option and discretion, shall be additionally entitled to bring any and all legal/equitable
actions as it may deem necessary to enforce the City's rights and remedies against Artist.
The City shall be entitled to recover all costs of such actions, including reasonable
attorney's fees.
10.2 Termination by Artist for Cause. If City fails to make payment to Artist of any undisputed amount
due pursuant to this Agreement or if City materially breaches the provisions of this Agreement,
Artist shall notify City of such breach of the Agreement by written notice in accordance with Section
11.6 hereunder. If the breach is not cured within sixty(60)days after City's receipt of written notice,
Artist may terminate this Agreement immediately upon written notice to the City.
10.3 Termination for Convenience. Either party may terminate this Agreement for its convenience at
any time upon furnishing sixty(60) days written notice to the other party. In the event the City
terminates this Agreement for convenience, the Artist shall at his/her discretion have the right to
either:
a. Compensation for non-refundable expenses incurred and work satisfactorily performed
prior to the date of termination (without allowance for an anticipated profit on unperformed
services), less payments made to the Artist prior to the date of termination, in which event
the City shall have the right at its discretion to possession and transfer of title to the
sketches, design, and models already produced and submitted or produced for submission
by the Artist under this Agreement, provided that no right to fabricate or execute the Work
shall pass to the City; or
b. the possession of all sketches, designs, models or other documents or materials produced
and submitted or produced for submission to the City in the course of the Artist's
performance under this Agreement prior to termination, in which case the Artist shall remit
to the City a sum equal to the payments (if any) made to the Artist pursuant to this
Agreement, less non-refundable expenses incurred by the Artist prior to termination.
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c. If Artist terminates this Agreement for its convenience, the Artist shall remit to the City a
sum equal to all payments (if any) made to the Artist pursuant to this Agreement prior to
termination.The City shall revert title of the Work to the Artist and return any material data
and or work in progress to the extent that such return does not impact City property.
10.4 Termination by City for Death or Permanent Incapacity of Artist. City shall be entitled, at its sole
discretion, to terminate this Agreement upon the death of the Artist, or permanent incapacity of the
Artist that renders the Artist incapable of completing the Artwork. In making this determination, City
shall consult with the Artist's representative who will decide whether the Artist's designs have
progressed to the point that the Artwork may be appropriately executed, and considered an original
work of the Artist,without the further participation of the Artist. In the event of a termination pursuant
to this Section 10.4, neither the Artist nor the Artist's estate shall have any further right or obligation
to perform hereunder, and City shall compensate the Artist or Artist's estate for non-refundable
expenses incurred and work satisfactorily performed prior to the date of termination (without
allowance for an anticipated profit on unperformed services), less payments made to the Artist prior
to the date of termination.
ARTICLE 11
MISCELLANEOUS
11.1 AUDIT RIGHT AND RETENTION OF RECORDS
City shall have the right to audit the books, records, and accounts of Artist as they relate to the
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, during customary business hours, for examination and
audit by the City, Mayor and/or his authorized representatives, all financial records, supporting
documents, statistical records, and any other documents pertinent to this Agreementand for the
Project,for the required retention period of the Florida Public Records Act(Chapter 119, Fla. Stat.),
or for a minimum period of three (3)years after termination of this Agreement, whichever is longer.
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.
11.2 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.
Artist's decisions regarding the delivery of services and work 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 lawfully used as a basis for service delivery.
11.3 PUBLIC ENTITY CRIMES ACT
Artist represents that the execution of this Agreement will not violate the Public Entity Crimes Act
(Fla. Stat. §287.133), 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
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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 determination, 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
crime regardless of the amount of money involved or whether Artist has been placed on the
convicted vendor list.
11.4 INDEPENDENT CONTRACTOR
Artist is an independent contractor under this Agreement. 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, nor does this'Agreement constitute a
work for hire arrangement or agreement.
11.5 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.
11.6 NOTICES
Whenever either party desires to give notice to the other, such notice must be in writing, sent by
certified 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:
Matt Kenny, Director
City of Miami Beach
Tourism and Culture Department
1755 Meridian Avenue, Suite 500
Miami Beach, FL 33139
FOR Artist:
We Are Nice'n Easy
760 NW 45th Street
Miami, FL 33127
11.7 ASSIGNMENT AND PERFORMANCE
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Artist shall not assign, transfer, or encumber all or any portion of this Agreement without the prior
written consent of the City, which consent, if given at all, shall be at such party's sole discretion.
Artist shall perform its duties, obligations, services, and work under this Agreement in a skillful and
respectable manner. The quality of the Work shall be comparable to the best national and
international standards.
Artist represents that all persons providing any work or 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 related to the particular services and work
contemplated in the Scope of Services.
11.8 CONFLICTS
Neither Artist nor its employees and/or sub-contractors 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 employees and/or sub-contractors 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, Artist agrees that such
persons shall not give 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. Thelimitations of this section shall not
preclude Artist or any other persons from representing themselves in any action or in any
administrative or legal proceeding.
11.9 CONTINGENCY FEE
Artist warrants that it has not employed or retained any company or person, other than a bona fide
employee and/or sub-contractor 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 and/or sub-contractor 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.
11.10 WAIVER OF BREACH
A party's failure to enforce any provision of this Agreement shall not be deemed a waiver of such
provision or modification of this Agreement. A party's 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.
11.11 COMPLIANCE WITH LAWS
Artist shall comply with all Federal, State, and local (County and City) laws, codes, ordinances,
rules, and regulations in performing his duties, responsibilities, and obligations related to this
Agreement.
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11.12 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 elects
to terminate this Agreement.
11.13 JOINT PREPARATION
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 a joint 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.
11.14 RIGHT OF DECISION
The City acknowledges and agrees that matters related to the Artist's design for the Artwork are
within the Artist's sole discretion, provided the Artist generally adheres to the original design
concept (and budget) upon which the Artist's selection was based. The Contract Administrator
shall decide and render administrative (proprietary) decisions on matters arising pursuant to this
Agreement which are not otherwise expressly provided for in this Agreement, including matters
relating to the administration of the Project and the development, delivery, installation, and
inspections of the Artwork, subject to Artist's reservation of rights to assert a claim in accordance
with this Agreement or applicable law. Subject to any such reservation of rights, all work shall be
performed by the Artist at the sole direction of and to the reasonable satisfaction of the Contract
Administrator, who shall decide all claims, questions or disputes concerning the prosecution and
fulfillment of the Work hereunder, and the character, quality, amount and value thereof(subject to
the Artist having absolute control over aesthetic decisions in relation to the Artwork), and the
Contract Administrator's decisions thereon shall be conclusive and binding upon the parties with
respect to the administration of the Agreement, unless such determination is clearly arbitrary or
unreasonable. All decisions of the Contract Administrator shall be written and transmitted to the
Artist. In the event that the Artist does not concur in the judgments of the Contract Administrator,
the Artist shall present his written objections to the City Manager within thirty (30) days from the
date of the Artist's receipt of such written decision. The Contract Administrator and the Artist shall
abide by any administrative (proprietary) decision of the City Manager, subject to Artist's
reservation of rights to assert any claim in accordance with the terms of this Agreement or
applicable law.
11.15 GOVERNING.LAW AND EXCLUSIVE VENUE
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Florida, both substantive and remedial, without regard to principles of conflict of laws. The
exclusive venue for any litigation arising out of this Agreement shall be Miami-Dade County, Florida,
if in state court, and the U.S. District Court, Southern District of Florida, if in federal court. BY
ENTERING INTO THIS AGREEMENT, CITY AND ARTIST EXPRESSLY WAIVE ANY RIGHTS
EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO,
OR ARISING OUT OF, THIS AGREEMENT.
11.16 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
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Agreement and approved and executed by the City Commission (if over $50,000.00) or the City
Manager(if less than $50,000.00) and Artist.
11.17 PRIOR AGREEMENTS
This document incorporates and includes all prior negotiations, 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, 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 subsection 11.16 above.
11.18 [Intentionally omitted]
11.19 INSURANCE
Artist shall maintain, at its sole cost and expense, the following types of insurance coverage at all
times during installation of the Work on Site or until final acceptance of the Project, whichever is
later:
a. Comprehensive General Liability in the minimum amount of One Million ($1,000,000) 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. [Intentionally omitted]
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 Miami 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 City's Risk Manager. Prior to starting installation on Site, Artist
shall provide Contract Administrator with a Certificate of Insurance for each such policy. 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
City's expenditures within fifteen (15) days of demand, the total sum owed shall accrue interest at
the rate of twelve percent (12%) until paid, and such failure shall be deemed an event of default
hereunder.
11.20 INDEMNIFICATION
Artist agrees to indemnify and hold harmless the City 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,
14
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 Artist, its employees, agents, sub-consultants, or any other
person or entity acting under Artist's control, in connection with Artist's performance of the Work
pursuant to this Agreement;and to that extent,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 attorneys' fees expended by the City in the defense of such claims and
losses, including appeals.The parties agree that one percent(1%)of the total compensation to Artist
for performance of the Work under this Agreement is the specific consideration from the City to Artist
for Artist's Indemnity Agreement.
Artist's obligation under this Subsection shall not include the obligation to indemnify the City of Miami
Beach and its officers, employees and agents, from and against any actions or claims which arise or
are alleged to have arisen from the gross negligence or willful misconduct of the City or its officers,
employees and agents. The parties each agree to give the other party prompt noticeof any claim
coming to its knowledge that in any way directly or indirectly affects the other party.
The provisions of this Section 11.20 shall survive the termination or earlier expiration of this
Agreement.
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15
IN WITNESS WHEREOF, the parties have made and executed this Agreement on the respective dates, as
executed below by their respective duly authorized officials. .
City/City of Miami Beach, Florida Artist/Name of Artist
al.
By / By
M.'or (We Are Nice'n Easy)
-7 day of N h7 , 2019 3 day of ,`"` , 2019
ATTEST: ---->scWitnesses: I
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City Clerk S`gnatur i '
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16
EXHIBIT A
ARTIST'S SCOPE OF SERVICES
ARTWORK/PROJECT: North Beach Water Tanks Mural Project
PURPOSE: Artist will design fabricate, permit, inspect, and install the above original work of art (also
referred to as Artwork or Project).
LOCATION OF SITE: North Beach Water Tanks, Dickens Avenue and 75th Street, Miami Beach, FL
ADMINISTRATIVE COORDINATION: The Contract Administrator shall be the City's authorized
representative to coordinate, direct, and review, on behalf of the City, all matters related to the Work. Artist
shall maintain regular communication with the Contract Administrator via phone, letter or e-mail.
DESIGN COLLABORATION: During the design of the Artwork,Artist shall coordinate its progress with the
Contract Administrator. The design of the Artwork shall be coordinated with the design process in the
following areas: aesthetics, public presentations, and cost estimates. Should the design of the Artwork
require specialized professional services, 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, Artist shall prepare all necessary audio and video documents for installation of the Artwork and
ancillary/support facilities needed to install the Artwork, as required by this Agreement, Artist shall provide
all necessary information on a timely basis to the Contract Administrator in the event that relevant
components of the Artwork design must be incorporated into the final installation documents where
appropriate.
INSTALLATION COORDINATION: During the installation of the Artwork, Artist shall collaborate and
coordinate the Work with the Contract Administrator or his/her designated public art project coordinator,
City of Miami Beach Public Works or any other professional or individual designated by the City.The Artist
shall coordinate the installation of the Artwork in accordance with the installation documents. The Artist
shall be responsible for installation oversight during the installation and integration of all Artist-designed
components,whether created by Artist's subcontractors or included in installation documents to be installed
by others.
DELIVERABLES: The Artist shall provide the following deliverables:
I-A [Intentionally omitted]
I-B Conceptual Design. Artist shall develop a conceptual design proposal and shall secure its approval
by the Miami Beach Tourism and Culture Staff. This phase includes a Site visit and coordination
with Contract Administrator.
The City acknowledges that Phase 1-B has been successfully completed.
I-C Design Development. Artist shall complete the conceptual development of the approved Artwork,
coordinate the Work with the Contract Administrator, and secure all applicable approvals.Approval
by the Contract Administrator and Notice to Proceed (for installation) shall occur after submittal of
all Artwork deliverables.
1. Artist shall submit a final concept for installation, a detailed cost estimate, sub-contractor
list, approvals, and installation schedule. The final conceptual design shall be deemed
approved if no objection has been raised to the proposed concept within 14 days of receipt.
2. If the verified cost exceeds the Project Budget, Artist shall be obligated to redesign the
Artwork to fit within the established budget, inclusive of all payments to Artist, at no
additional charge to City.
17
3. Artist shall coordinate and participate in all conceptual testing related to the Artwork in
consultation with Tourism and Culture staff.
4. This phase includes Site visits for coordination and presentation purposes.
I-D Development and Installation-Artist shall create the mural on site.
I-E Final Conservation Documents. Upon completion and installation of the Artwork,Artist shall submit
all photographic documentation and completed cataloging forms as applicable. If Artist utilizes
computer technology in the fabrication of the Artwork, Artist shall submit electronic copies of any
computer files that will support on-going operations or future repairs and conservation of the
Artwork. Artist to demonstrate any maintenance and procedures of the Artwork, as deemed
necessary by the Contract Administrator.
I-F Warranty Period. All Work furnished under this Agreement shall be guaranteed against defective
workmanship, unapproved materials and improper performance, for a period of two (2) year after
final acceptance of the Project by Contract Administrator.
SITE INSPECTIONS/SITE CONDITIONS/INSTALLATION REQUIREMENTS. Prior to installation, the
Artist and/or his subcontractor(s) shall visit and inspect the Site. Subsequent to such inspection and
throughout the course of the Work the Artist shall notify the Contract Administrator of any access, power,
and other requirements for proper installation of the Work that are not to be provided by the Artist. The
Artist shall notify the Contract Administrator in writing of any adverse Site conditions that may impede or
otherwise impact the smooth and normal progress of the Work and which require resolution before
proceeding with any portion of the Work. The Artist shall promptly report to the Contract Administrator any
condition pertaining to defective, unsuitable or unacceptable Site conditions. The Artist shall provide such
notice within a reasonable amount of time so as to allow the Contract Administrator to properly coordinate
with the City of Miami Beach Public Works Department and not create any delays to the installation
schedule.
COMPLETION AND INSPECTION: Upon completion and installation of the work,Artist shall be responsible
for obtaining written final approval from Contract Administrator. The Contract Administrator shall find the
Work acceptable if the Artwork is completed. If all such requirements are met, final acceptance shall be
given by the Contract Administrator within one week of inspecting the completed Artwork. All aesthetic
considerations are in the sole discretion of the Artist.The only grounds on which the Contract Administrator
may withhold issuing the final acceptance are if the Artwork is manifestly incomplete or radically different
from the preview versions of the audio and video versions provided by the Artist.
PHOTOGRAPHIC, VIDEO AND AUDIO DOCUMENTATION: Professional photo-documentation suitable
for publication shall include images of all major aspects of the Project. The Artist-supplied photo-
documentation shall be reproducible, at no cost to the City, for any non-commercial uses by the City. The
artist will also produce professional video documentation of how the work looks and within the site and
context of the Water Tanks.
TIMELINE FOR COMPLETION: Artist shall coordinate the progress of the Work with the Contract
•
Administrator and City of Miami Beach Public Works Department.
APPROVALS: With the assistance of the Public Works Department, Artist shall prepare such documents
and design data as may be required to install the Artwork.Artist, his assistants or assigned subcontractors
shall participate in meetings, submissions, resubmissions and negotiations. Artist shall respond to
comments by such authorities in a timely manner to adhere to Project Schedule. Artist shall be responsible
for formally transmitting and receiving information. Artist shall coordinate approval related issues with the
Contract Administrator. The receipt of all necessary approval is a condition precedent to the installation
18
the Work. As of the effective date of this Agreement, it is anticipated that the following authorities may have
jurisdiction over Project.
• City of Miami Beach Public Works Department
Notwithstanding the above, the City's failure to identify governmental authorities that may have jurisdiction
over the Project shall not relieve Artist from the responsibility to procure all requisite approvals.
SITE PREPARATION: The City shall at all events be solely responsible for all expenses, labor and
equipment, and other costs required to prepare the Site for installation of the Project.
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EXHIBIT A-1
PROJECT SCHEDULE
To be determined in coordination with the Contract Administrator and City of Miami Beach Public
Works Department
Proposed Prosect Schedule—Week of May 20, 2019-Week of August 5, 2019
Total timelinel2 week installation period
Week 1-2: Paint base coat with sprayer
Week 3-4: Paint highlight areas with sprayer
Week 5-6: Hand paint tile borders
Week 7-8: Hand paint any props/shadows
Week 8-12: Hand paint white water line
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EXHIBIT B
COMPENSATION AND SCHEDULE OF PAYMENTS
City shall pay We Are Nice'n Easy the total sum of Fifty Thousand Dollars and No Cents ($50,000.00)
for the Work contemplated in this Agreement, which sum shall represent the total compensation to We Are
Nice'n Easy. No other amount shall be paid to Artist(including for reimbursable expenses).
Artist will be paid in accordance with the foregoing specified installments, upon submission of satisfactory
invoices and documentation substantiating satisfactory completion of the portion of the Work for which
payment is requested, and upon Contract Administrator's acceptance of said portion of the Work (as
applicable). Additionally, each invoice shall include a written progress report,with a narrative discussion
of all activities in progress during the report period, photo documentation where appropriate, based upon
the stated Scope of Services and payment description.
Payments to Artist shall be made for Work satisfactorily completed in accordance with the following
schedule:
1. Payment #1: Twenty-Five Thousand dollars ($25,000.00) (which is approximately 50% of the
fixed fee) to be paid upon the signing of the contract, submittal of conceptual design, project
budget and project schedule.
2. Payment#2 Ten Thousand dollars ($10,000.00) (which is approximately 20% of the fixed fee)
to be paid following fifty percent completion of the work.
3. Payment #3 Ten Thousand dollars ($10,000) (which is approximately 20% of the fixed fee) to
be paid following substantial completion of the work.
4. Payment#4: Five Thousand dollars ($5,000.00) (which is approximately 5%of the fixed fee)after
the Artwork has successfully completed the work and the Artist provides photographic
.. documentation of the artwork, and cataloguing form for the work for final acceptance by the
Contract Administrator.
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Catalog#
EXHIBIT C
City OF Miami Beach
CATALOGING FORM
TO BE PROVIDED BY ARTIST AT COMPLETION OF PROJECT
1. Artist Information
A. 1. 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:
F. One paragraph biography of Artist
II. Work of Art
A. Title:
B. Medium:
C. Manufacturer/Product info (address, telephone, e-mail):
D. Artist Statement:
V. External Factors
A. If the work is site-specific, describe the relationship of the work to its site:
VI. Maintenance
Signature Date
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EXHIBIT D
PROJECT BUDGET
(Last exhibit in artist agreement)
Supplies and Materials (15%) $7,500
Paint at $40/gallon, 1 gallon covers 250 square feet
Equipment rental (15%) $7,500
Rental of 2 lifts for 10 weeks at$500 per lift per week.
Contract labor(40%) $20,000
2-3 painters for 10 weeks working 40hr a week.
Artist Fee (20%) $10,000
Contingency(10%) $5,000
TOTAL PROJECT BUDGET $50,000
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