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RESOLUTION 92-20672 RESOLUTION NO. 92-20672 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, PURSUANT TO THE CODE OF THE CITY OF MIAMI BEACH, FLORIDA, CHAPTER 4A, ENTITLED "ART IN PUBLIC PLACES" AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN AGREEMENT WITH ARTIST ELLEN LANYON FOR THE COMPLETION OF AN ORIGINAL ART WORK TO BE PLACED IN THE MIAMI BEACH POLICE AND COURT FACILITY; THE COST OF SAID ART WORK SHALL TOTAL $40, 000. 00 AND BE PAID IN INSTALLMENTS OF 40% UPON EXECUTION OF THE AGREEMENT AND THE BALANCE UPON PLACEMENT; SAID FUNDS HAVE BEEN ALLOCATED IN ACCORDANCE WITH ORDINANCE NO. 84- 2414 AND MUST BE UTILIZED IN ACCORDANCE WITH THE TERMS OF THE ORIGINAL BOND ISSUE. WHEREAS, the City of Miami Beach is now implementing a public art program as set forth in Ordinance No. 84-2414 allocating certain funds for the acquisition of art works for public places and authorizing the Art in Public Places Committee to approve the selection of Artists and make payments for the design, execution and installation of works of art; and WHEREAS, funds for art have been allocated in accordance with Ordinance No. 84-2414 from allocated funds; and procedures duly adopted by the City of Miami Beach; and WHEREAS, the City is authorized to purchase works of art as an allowable activity under the Ordinance; and WHEREAS, the City is desirous of providing funds to enhance and enrich the public environment; and WHEREAS, the Artist was selected by the Committee through procedures duly adopted by the City of Miami Beach; and WHEREAS, the City requires certain services in order to fulfill its obligations under the aforementioned Bond issue; and WHEREAS, the City desires to enter into an Agreement with Ellen Lanyon for the purpose of performing those services; and WHEREAS, the City Manager recommends approval of the attached Agreement. NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Clerk are hereby authorized to execute an Agreement with Ellen Lanyon for the completion of an original art work to be placed in the Miami Beach Police and Court Facility with the payment for said art work to be funded through Bond Fund # 354 . PASSED and ADOPTED this 18th day of Agrember 192 . ATTEST: / /1)v-eNvv-_- AiCity Clerk / ay.r � Or APPROVED aY THE *L DEPARTMENT AS T• F• ' : Date MAL4b /P c /res/2 CITY OF MIAMI BEACH CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139 • TELEPHONE: (305)673-7010 OFFICE OF THE CITY MANAGER FAX: (305) 673-7782 2, MEMORANDUM NO. 0 - COMMISSION TO: Mayor Seymour Gelber and DATE: November 18, 1992 Members of the City Commission FROM: Roger M. Cartt ► City Manager �t SUBJECT: RESOLUTIONS APPROVING CONTRACTUAL AGREEMENTS WITH ARTISTS JUDY PFAFF AND ELLEN LANYON FOR THE COMPLETION OF ORIGINAL WORKS OF ART (ART IN PUBLIC PLACES COMMITTEE) ADMINISTRATION RECOMMENDATION: It is recommended that the Mayor and City Commissioners approve the attached Resolutions for the execution of agreements between the City of Miami Beach and artist Judy Pfaff, and between the City of Miami Beach and artist Ellen Lanyon for completion of original works of art to be placed in the Miami Beach Police and Court Facility with payment of said works of art to be funded through Bond Fund No. 354. it is further recommended that the City ^ommissic.r. refer the Art in Public Places program to a committee of citizens including existing members of the Art in Public Places Committee to discuss the future of the program. Issues to be discussed could include the continuation of the 1.5 percent request versus a lesser requirement due to the difficult economic times as well as committing 1/2 percent to a particular building and accumulating the remaining one percent to achieve a fund to purchase major works of art of greater scale as an option. BACKGROUND: In 1984, Ordinance No. 84-2414 was passed by the City Commission, requiring that 1. 5% of the construction costs of public buildings shall be appropriated for art work acquisition. Based on the Miami Beach Police and Court Facilities cost of $11, 334,250, the art requirement was set at $170,014 and subsequently appropriated by City Commission Resolution and set aside in Bond Fund No. 354 . The City's Art in Public Places Committee developed a selection process and, on August 14, 1992, selected two artists, Judy Pfaff of New York, New York, and Ellen Lanyon of Stockbridge, Massachusetts, to complete two major original works of art, to be placed in the lobby area of the Police building. ANALYSIS: Ms. Pfaff is being commissioned to produce a metallic and glass sculpture measuring approximately 40 x 75 feet to hang in the atrium lobby of the Police building. The total contract amount, including all material, construction, installation, fees and travel, shall be $80,000. • q � -1- AGENDA ITEM DATE Ms. Lanyon is being commissioned to produce a painting on canvas measuring approximately 9 feet by 19-1/2 feet to be hung in the hallway wall of the Police building. The total contract amount including material, installation, fees and travel shall be $40,000. Models of the sculpture and the prints will be presented at the City Commission Meeting. The City Commission had previously approved a contract for $20,000 with artist Roberto Juarez, that which has now been completed and hangs in the community room. Budget Total funds appropriated: $170,014 Expenditures RFP and Advisory Committee $ 2,356 Paid to three finalist artists for proposals ($5, 000 each) 15,000 Juarez contract 20, 000 Acquisition and mounting of posters 1, 050 Mounting of Police patches 300 Mounting of proposals above 3,000 Proposed Pfaff contract 80,000 Proposed Lanyon contract 40,000, TOTAL COMMITTED TO DATE: $161,706 BALANCE REMAINING: $ 8, 307 The Art in Public Places Committee proposes that the balance remaining be expended on up to three additional smaller works of art that will be selected by tne Ccmmittee in the future. CONCLUSION: The proposed art work commissions have gone through an established process and adequate funds are available for their implementation. However, as City Manager, I am concerned with the public reaction to expenditures of this amount in the current economy and in difficult restructuring for the City of Miami Beach. Therefore, a future look at the Art in Public Places program is recommended as described above. RMC:jph Attachments -2- Q 2 • AGREEMENT THIS Agreement, is made and entered into this 7th day of January , 1991, by and between the CITY OF MIAMI BEACH and Ellen Lanyon , hereinafter referred to as the "Artist" . WITNESSETH: WHEREAS, The City of Miami Beach is now implementing a public:: art program as set forth in Ordinance #84-2414 allocating certain funds for the acquisition of art works for public places and authorizing the Art in Public Places Committee to approve the selection of Artists and make payments for the design, execution and installation of works of art; and WHEREAS, funds for art have been allocated in accordance with Ordinance #84-2414 from allocated funds; and procedures duly adopted by the City of Miami Beach; and WHEREAS, the Artist was selected by the Committee through procedures duly adopted by the City of Miami Beach; and WHEREAS, both parties wish the integrity and clarity of the Artist' s ideas in the work of art to be maintained; NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties agree as follows: I DEFINITIONS 1. 1 Words and Terms The words and terms as used in this Agreement shall have the Following meanings unless some other meaning is plainly and ) early set forth. 1.2 Architects "Architects" means the architects contracted by the City of Miami Beach to design (the Miami Beach Police and Court Facility) . 1.3 Artist "Artist" or "contractor" means Ellen Lanyon . . 1. 4 city "City" means City of Miami Beach, Florida. 1. 5 Committee "Committee" me,Ins the City of Miami Beach Art in Public Places Committee. X. 6 Staff Liaison "Staff Liaison" means the Liaison to the (City of Miami Beach) Pict in Public Places Program. 1.7 Subcontractor "Subcontractor" means any entity retained by "Artist" for activities other than the creative and Artistic portions of the work. 1.8 Project "Project" means the art work for the Miami Beach Police and Court Facility. X.9 Art Work "Art Work" means the original art work created by the Artist to be installed at the Miami Beach Police and Court Facility. The art work is a single work of art and shall remain in its original state as created by the Artist. II SCOPE OF SERVICES 2 . 1 General The Artist shall perform or provide and be responsible for a l l work, labor and services and furnish all supplies, materials, tools and equipment necessary for the design, execution, fabrication, construction, and installation of the Artwork, the design of which has been approved by City and is depicted by the attached. Artist' s rendition, to be located in the lobby of the Miami Beach Police and Court Facility at 1100 Washington Avenue, Miami Beach, Florida. 2 • 2 .2 Procedure Artwork shall consist of a painting on canvas The artwork shall measure approximately 9 feet by 191/2 feet The Artist shalt submit to the City within ninety (90) days of c!xecuti_on of this Agreement, the following: A detailed budget for the design, fabrication, and installation of the Artwork, including Site preparation; A detailed list of subcontractors who will be performing eervices for the Artist on the Artwork, including a description of services to be provided by each subcontractor. A detailed list of materials to be utilized by the Artist, including, but not limited to the quantity, style, type, color, and glazing; Revised scale ground-plan and elevations sections of the Artwork reflecting changes to the Artwork, if any, as changes occur. A schedule of completion dates for all phases of the work. III Compensation 3 . 1 Fees The City of Miami Beach shall pay the Artist a fixed fee of $ 40,000 for the preparation and completion of the original work of art, which shall include all fees and travel expenses. 3 . 2 Method of Payment The City of Miami Beach shall pay the Artist the fixed fee for original work of art in the following installments: 40% after execution of this Agreement and invoice by the Artist; and 69% upon completion and installation of the work of art in the Miami Beach Police and Court Facility and acceptance of the Artwork by the City. 3 • IV General Conditions 4 . 1 Ownership of Documents Upon completion of the work, all designs and other data, including the model, developed by the Artist and submitted to the Committee for the purpose of this Agreement, shall become the property of the City of Miami Beach. The City hereby giants to the Artist the right to include photographs or 1 eproducti_ons of the art work in his portfolio or promotional brochures ; captioned as "owned by the City of Miami Beach" . Since it is the intention of the parties that the art work be unique, the Artist expressly requests that the art work not be reproduced on advertising novelty items including but not limited to key chains, T-shirts, cups, plastic beach bags and beach towels. 4 .2 Time Extensions A reasonable extension of contract time will be granted in the event there is a delay on the part of the City of Miami Beach in fulfilling its part of the Agreement or should conditions beyond the Artist' s control or Acts of God render performances of his duties impossible. The City Manager shall be the sole judge of what constitutes "beyond the Artist ' s Control" . 4 . 3 Time of Performance All services by the Artist and the Artist ' s subcontractors shall be performed and completed in accordance with the schedule submitted by the Artist and approved by the City. Artist shall have access to the site at all times including evenings and weekends. Reasonable extensions may be granted by the City in the event that conditions beyond the Artist ' s control. or Acts of God shall render compliance with the schedule impossible. The Artist shall complete all services 4 • required by this Agreement by no later than sixteen months from the date of execution of this Agreement. 4 . 4 Inspection The City shall have the right at reasonable times to review the progress of the Artwork during the fabrication thereof and to receive progress reports from the Artist upon request. This will follow reasonable requests for modifications from the Committee. 4 . 5 Code Compliance All work shall be done in compliance with all applicable building codes. 4 . 6 Assignment, Transfer of Subcontracting The Artist shall not assign, transfer, or subcontract h i s creation and control of the Artwork to another party without the written approval of the City. 4_.7 Equal Employment Opportunity and Non-Discrimination In connection with the execution of this Agreement, the Artist of his/her subcontractors shall not discriminate against employees or applicants for employment because of race, religion, color, age, sex, ancestry, marital status, physical handicap, place of birth or national origin. The Artist shall take affirmative actions to ensure that applicants are employed, and that employees are treated during their employment, without regard to their race, religion, color, sex, age, ancestry, marital status, physical handicap, place of birth or national origin. Such actions shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; and selection for training, including apprenticeship. 5 • 4 .8 Termination for. Convenience Performance by either party under this Agreement may be terminated for the convenience of either party at any time upon furnishing 60 days written notice to the other party. In the event of termination for convenience of either party, the Artist shall at his option have the right to either: an equitable adjustment in the fee (without allowance for an anticipated profit on unperformed services) in which event theCity of Miami Beach shall have the right at its discretion Lo possession and use of the sketches, designs, and models already produced and submitted or produced for submission by the Artist under this Agreement prior to the date of termination, provided that no right to fabricate or create the Work shall pass to the City of Miami Beach; or the possession of all sketches, designs, models or other documents or materials produced and submitted or produced for submission to the Committee in the course of the Artist' s performance under this Agreement prior to termination, in which case the Artist shall remit to the City of Miami Beach a sum equal to all payments (if any) made to the Artist pursuant to this Agreement prior to termination. 4 . 9 Breach or Default: Termination I f , through any cause, the Artist should fail to fulfill in a timely manner, the material obligations under this Agreement, or if Artist should violate any of the material covenants, agreements or stipulations of this Agreement, the City shall thereupon have the right to terminate this Agreement. Prior to terminating the Agreement, the City shall notify the Artist of its intent to terminate, stating the provision giving rise to the alleged default. In the event the default is not timely corrected, the Agreement may be terminated by written notice from the City to the Artist. In the event that the City t so terminates this Agreement, the City is not required to 6 • compensate the Artist for his services or any expenses incurred after receipt of notification of the termination. 4 . 10 Arbitration Any controversy or claim for money damages arising out of or relating to this Agreement, or the breach hereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and the arbitration award shall be final and binding upon the parties hereto and subject to no appeal, and shall deal with the question of the costs of arbitration and all matters related thereto. In that regard, the parties shall mutually select one arbitrator, but to the extent the parties cannot agree upon the arbitrator, then the American Arbitration Association shall appoint one. Judgment upon the award rendered may be entered into any court having jurisdiction, or application may be made to such court for an order of enforcement. Any controversy or claim other than a controversy or claim for money damages arising out of or relating to this Agreement, or the breach hereof, including any controversy or claim relating to the right to specific performance, shall be settled by litigation and not arbitration. 4 . 11 Limitation of Liability The City desires to enter into this Agreement only if in so doing the City can place a limit on City' s liability for any cause of action for money damages due to an alleged breach by the City of this Agreement, so that its liability for any such breach never exceeds the sum of $ 40,000 . Artist hereby expresses its willingness to enter into this Agreement with Artist ' s recovery from the City for any damage action for breach of contract to be limited to a maximum amount of $ 40'000 less the amount of all funds actually paid by the City to Artist pursuant to this Agreement. 7 • Accordingly, and notwithstanding any other term or condition of this Agreement, Artist hereby agrees that the City shall not be liable to Artist for damages in an amount in excess of fi 40,000 which amount shall be reduced by the amount actually paid by the City to Artist pursuant to this Agreement, for any action or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement. Nothing contained in this subparagraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon City' s liability as set forth in Florida Statutes, Section 768 . 28 . 4.12 Repairs and Restoration The Artist may make periodic inspections of the Artwork and may recommend to the City any potential restoration or repairs the Artist deems appropriate. The City Manager or his designee shall have the exclusive right to determine when and whether repairs to and/or restoration of the Artwork will be made. In the event repair or restoration is to be performed, the Artist shall have the right of first refusal to either perform the repair and/or restoration or supervise any such work by any other party retained by the City. In the event the Artist performs the repair and/or restoration of the art work, the Artist shall be paid a reasonable fee for any such services which will be determined in accordance with recognized principles of conservation. 4 . 1.3 Alteration of the Work or of the Site The City agrees that it will not intentionally destroy, damage, alter, change or modify the Artwork in any way. The City recognizes that the Artwork is a single work of art, and the City agrees not to damage, alter, change or modify the Artwork. Should alteration to the site be necessary, the City shall use reasonable efforts to relocate the Artwork as a single work of art. If the City should ever in time decide to 8 destroy the Artwork, the Artist shall have the right of first refusal to purchase the Artwork at the market appraised value at the time of the proposed sale. 4 . 14 Future Sale of Art Work The City recognizes that the Artist' s knowledge that the Artwork is to be displayed in a public area of a public building is a material consideration enticing the Artist to enter into this Agreement. The City further recognizes that the Artist only agrees to the terms of this Agreement due to the public access to the Artwork that will be provided by the City. As further consideration for the Artist ' s performance under this Agreement, the City agrees that it will not sell the Artwork for a period of at least ten ( 10) years after the gate of the initial installation of the Artwork. In the event the City decides to sell the Artwork, the Artist shall have the Right of First Refusal to purchase the Artwork at the appraised market value at the time of the proposed sale. 4 . 15 Warranty of Title The Artist warrants that the Artwork covered by this Agreement shall be the result of the artistic efforts of the Artist and that, unless otherwise stipulated, the Artwork shall be unique and an edition of one. The Artist shall deliver the Artwork free and clear of any liens, claims or other encumbrances of any type and shall furnish affidavits and releases to this effect. The Artist shall defend the City in any claim for infringement. 4. 16 Warranty of Quality The Artist warrants that upon completion, the Artwork shall be free of defects in materials and workmanship and that the Artist shall correct any such defects within a reasonable period upon written notice from the Owner for a period of one (1 ) year from final acceptance of the Artwork at the Artist' s 9 r-xpense. Artist shall use high quality materials to complete and create the Artwork. 4 . 17 Acceptance and Title to the Artwork Title to the Artwork shall vest in the City at the time of final acceptance by the City. Notwithstanding the passage of title in the Artwork to the City, the Artist hereby reserves all rights and usages, excluding commercial rights and usages, to render drawings or photographs of the Artwork with the ()-crept i ori that the City may reproduce faithful images of the Artwork for non-commercial use, including, but not limited to public information, educational and catalogue purposes without written consent of the City, but always accompanied by the mention: " (Title of Artwork) , byF1l n Lanyon (year completed) , Art in Public Places acquisition approved by the City of Miami Beach. When the Artist ' s services have been completed the Artist shall so advise the City in writing. Within three (3) days of receipt of such notice, the City shall give the Artist notice in writing of any services which have yet to be satisfactorily completed. Upon completion of such services, the Artist shall notify the City and the City shall again have three (3) days to notify the Artist whether the services have been satisfactorily completed. Final acceptance shall not constitute a waiver or abandonment of any rights or remedies available to City under any other section of this Contract. 4 . 18 Risk of Loss The Artist shall be responsible for the risk of loss or damage to all items and the Artwork until accepted by the City unless loss or damage results from negligence by the City. The Artist shall also be responsible for filing, processing and collecting all damage claims related to the Artist' s responsibilities in the Agreement. The Artist shall take such 10 measures as are necessary to protect the Artwork from loss or damage. 4 . 19 Insurance '['hie Artist shall meet the following insurance requirements: a. Maintain commercial general liability in the amount of $500, 000 per occurrence for bodily injury and property damage. This pol icy shall name the City of Miami Beach as an additional insured. b. Maintain workers ' compensation coverage as required by Florida Statute for employees of the Artist involved in the delivery and installation of art while on City property. c. These policies must be issued by companies licensed and authorized to do business in the State of Florida and rated no less than B+:VI per Best' s Rating Guide, latest edition. d. Prior to any installation being done on City property, the Artist must submit a certificate of insurance evidencing the above required coverage and that certificate must be approved by the City' s Risk Manager. e. If any work in connection with the installation of this artwork involves the use of subcontractors by the Artist, the Artist must submit proof of insurance for those subcontractors before any work on City property can begin. V .. Any exceptions to these requirements are subject to the approval of the City' s Risk Manager. 4 .20 Independent Contractor The Artist is an independent contractor and nothing in this Agreement shall be construed as constituting the Artist an employee, agent or representative of the City. The Artist shall not be supervised by any employee or agent of the City. 11 • 4 .21 Indemnification The Artist agrees to indemnify and hold harmless, the City, the Miami Beach Police Department, the Committee and their 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, in law or in equity, which may arise or be alleged to have arisen from the negligent acts or omission or other wrongful conduct of the Artist or his subcontractors, employees, or agents in connection with the Artist' s performance of services pursuant to this Agreement. The Artist' s obligation under this article shall not include the obligation to indemnify the City, Miami Beach Police Department and the Committee and �,lte it cif is icer:l, 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 wrongful conduct of the City, the Miami Beach Police Department, and the Committee sand their officers, employees and agents. The parties each agree to give the other party prompt notice of any claim coming to its knowledge that in any way directly or indirectly affects the other party. 4 .22 Permanent Record The City shall maintain on permanent file in the City Clerk' s Office copies of this Agreement and a record of the location and disposition of the art work. 4 .23 Publicity and News Releases The Artist shall not, during the performance of this Agreement, disseminate any publicity or news releases regarding the Artwork without prior written approval of the City. However, the Artist' s documents and records prepared or received in connection with this Contract shall be open to 12 • public inspection in accordance with Florida Statutes, Chapter 1.19 . 4 .24 Bi ll of Sale The Artists shall execute and deliver to the Owner a bill of sale upon the completion of the Artwork and acceptance by the city. The bill of sale shall convey absolute title to the city. 4 ._25 Ila.meplate The Artwork shall be publicly displayed, with a nameplate which includes the wording, " (Title of Artwork) , by Ellen Lanyon commissioned 1992 , with funds provided by The City of Miami Beach, Art in Public Places" . This nameplate shall be provided and installed by the Artist, and its composition and design shall be developed in consultation with the City. If the City fails to maintain the Artwork in good and original condition, the Artist shall have the right to disown it as his/her creation and have the nameplate removed until the Artwork' s condition is restored. 4 .26 Barricades The Artist and/or his/her subcontractors shall provide all barricades and other protection necessary to protect the Artwork and adjacent City property during fabrication and installation of the Artwork and to protect passers-by from injury. 4 .27 Engineer Certification where necessary, it shall be the responsibility of the Artist to obtain certification, from an engineer licensed in the state of Florida, that the Artwork shall be an adequate design (including foundation loads, wind loads and potential live toads) to ensure the safety and welfare of the City staff, occupants of the building, and the general public. 13 . 4.2P Notices All notices under the terms of this Agreement shall be sent to the following: Artist : Ellen Lanyon 138 Prince Street, 4th Floor, New York, NY 10012 or P.O. Box 1045 Stockbridge, Mass. 01262 City: City of Miami Beach, c/o City Manager' s Office, 1700 Convention Center Drive, Miami Beach, Florida 33139 . 4.29 Unenforceable Provisions If any provision of this Agreement is determined to be void or unenforceable by any court or in any arbitration proceeding as provided herein, the Agreement shall remain in effect in accordance with its terms, excluding the provision declared void or unenforceable, subject to the other terms, covenants, conditions and provisions of this Agreement. 4 . 30 Entirety of Agreement This writing embodies the entire agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. No alteration, change, or modification of the terms of the Agreement shall be valid unless made in writing and signed by both parties hereto and approved by appropriate action of the City Commission. This Agreement, regardless of where executed, shall be governed by and construed according to the laws of the State of Florida. IN WITNESS WHEREOF tjie parties hereto have executed these this dayof r-?-7 � , 1992 . presented ATTEST: CITY CLERK CITY OF MIA B H BY: � Cwrs� B Y. -AMIN . MAYOR 76ESSES: RTIST: CIC/pb ( 7217' //; agreeart.new/9.3.92 FORM APP'OVED 14 LE A D PT. By Date /1/?e/F1 ORIGINAL 4 RESOLUTION NO. 92-20672 Pursuant to the Code of the City of Miami Beach, Florida, Chapter 4A, entitled "Art In Public Places" authorizing the Mayor and City Clerk to execute an agreement with artist Ellen Lanyon for the completion of an original art work to be placed in the Miami Beach Police and Court facility; . . . . . • . 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