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Agreement between
City of Miami Beach, Florida and Wendy Wischer, Artist
For Commissioned Artwork at S.W. Corner Washington Avenue and 3~d Street
This Agreement made and entered into this day of _s~~, 2009, by and between the CITY OF
MIAMI BEACH, a municipal corporation existing under the la of the State of Florida (hereinafter referred to
as City), and WENDY WISCHER, an individual, whose principal address is 2312 Pelican Dr., Sarasota,
Florida, 34237 (hereinafter referred to as Artist).
WHEREAS, the City intends to undertake a project within the City of Miami Beach, with the support
and cooperation of the City of Miami Beach Art in Public Places, which is more particularly described in this
Agreement and the attached Exhibit A Scope of Services, and wishes to engage the Artist to design,
fabricate, transport, and install a unique and original work of art (also referred to herein as the Artwork) at
the location in the S.W. corner of Washington Avenue and Third Street, Miami Beach, Florida, 33139,
indicated in the Artist's conceptual design proposal which has previously been approved by the City (such
location hereafter referred to as the Site), at the agreed upon fees, as set forth in this Agreement; and
WHEREAS, the 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. Wendy Wischer, the individual selected to create the Artwork contemplated pursuant to this
Agreement.
1.3 Project Coordinator. The "Project Coordinator" Shall mean the individual appointed by the City
Manager who shall be the City's authorized representative to coordinate, direct, and review on behalf
of the City, all matters related to the Project, except as otherwise provided herein.
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. Unless otherwise expressly
provided in the Agreement, where certain approvals and submissions are required from the City in
this Agreement, those shall be required by the City Commission of the City.
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 of the City Manager, who shall be the City's,
authorized representative to coordinate, direct, and review (with Project Coordinator, as applicable)
on behalf of the City, ail matters related to the Work and the Project, except as otherwise provided
herein.
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1.9 [Intentionally omitted]
1.10 Contract (Agreement) Amendment. Shall mean the written order to the Artist approved by the
City, as specified in this Agreement, and signed by the City's duly authorized representative,
authorizing a change in the Project or the method and manner of performance thereof, or an
adjustment in the fees and/or completion dates, as applicable. Contract Amendments shall be
approved by the City Commission, if they exceed twenty-five thousand dollars ($25,000.00) or the
City Manager if they are twenty-five thousand dollars ($25,000.00) 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 twenty-five thousand ($25,000.00), the City Manager shall retain
the right to seek and obtain concurrence of the City Commission for approval of any such Contract
Amendment.
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
1.12 Notice to Proceed. A written notice issued by the Contract Administrator to the Artist authorizing
the commencement of the activities identified in said notice.
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, and to be known as "Liquid Measures,", that has been approved
by the City Commission, and is further described in Exhibit A, entitled ("Artist's Scope of Services"),
attached hereto.
1.14 Project Budget. Shall mean an amount budgeted by the City for the Project, as specified in the
Exhibit "A", attached hereto.
1.15 Project Cost. Shall mean the total cost of the Project to the City including, design, fabrication,
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 required by Artist under this Agreement (including, without limitation, work
described in Exhibit "A", attached hereto), to successfully complete the Project.
ARTICLE 2
SCOPE OF SERVICES
2.1 Artist shall perform all Work identified in this Agreement and Exhibit "A" for the design, permitting,
fabrication, transportation, inspection, and installation of the Project.
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 to be provided under this
Agreement, and that any such change and/or modification with respect to the Scope of Services, the
time the Artist is obligated to commence and complete all such Services, and the amount of
compensation the City is obligated or committed to pay the Artist, must be approved (if at all) by the
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City Manager or the Mayor and City Commission, in their respective sole discretion, prior to
implementation of same. Any such change or modification, if approved, shall be memorialized in
writing as a Contract Amendment.
2.3 Artist shall provide monthly Project progress reports and/or deliverables in a form and manner
acceptable to the Contract Administrator and/or Project Coordinator (as applicable).
2.4 Upon completion of the Project, the Artist shall furnish the Contract Administrator with
professional photographic documentation showing the completed Artworks as follows:
a. Photographs shall include the following:
Two (2) CDs containing high resolution (image size not smaller than 5x7 with a
resolution of at least 300 dpi) and low resolution digital photographs (4x6 size at
100 dpi) of the completed Work, taken from at least three (3) different viewpoints,
for a total of no less than twelve (12) images; and
2. Two (2) sets of at least four (4) different 8" x 10" color photographic prints that
best represent the completed Work.
b. Electronic files and photographs shall be of acceptable professional quality in the
determination of the Contract Administrator and shall be properly marked to include the
Artist's Name, Title of the Work, Location, Medium and Dimensions of the Work.
c. In addition to the photographic documentation referenced above, Artist shall also, upon
completion of the Project, provide Contract Administrator with copies of electronic files,
sketches, drawings, construction documents, and as-built plans showing and/or
accurately depicting the completed Artwork.
2.5 Upon completion of the Project, Artist shall provide Contract Administrator with a detailed written
schedule and instructions for the routine care, maintenance, and preservation specific to the
Project, as set forth in Exhibit "C", ("Cataloging Form"), attached hereto.
2.6 Artist shall be solely responsible for the quality and timely prosecution, completion and installation
of the Work and the Project. The Artist shall be responsible for designing the Project so that it can
be fabricated and installed without exceeding the approved Project Budget.
2.7 While Artist acknowledges and warrants that an essential element of this Agreement is the
personal skill and creativity of the Artist, and that he is solely responsible for the quality of the
Project, the Artist may subcontract and/or assign portions of the Work to another party, subject to
the prior written consent 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 provisions of the Work. Artist further warrants that he shall be solely
responsible for supervision of (and any compensation to) such third parties, and that the City shall
have no liability with regard to same.
2.8 Artist agrees that all Work, and the completed Project, shall comply with all applicable Federal,
State, Miami-Dade County, and City of Miami Beach 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
2.9 The Artist shall not make any public information release in connection with the Project and/or the
Work performed pursuant to this Agreement without the prior written consent of the Contract
Administrator.
2.10 While Artist is solely responsible for the design, fabrication, permitting, transportation, inspection and
installation of the Work and the complete Project, the following provisions shall apply:
a. The Artist shall pertorm the Work in a manner and time so as not to cause interference with
any of the operations of the City.
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 known, and to the extent any and all 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.
c. When working on the Site, Artist shall promptly perform such periodic clean up as may be
required by the Contract Administrator, and shall also remove any of his equipment, excess
materials, and waste promptly from the Site, as directed by Contract Administrator.
2.12 Artist shall bear any transportation and storage costs resulting from the fabrication, delivery, storage
and installation of the Work and/or the Project.
2.13 Title to the Artwork shall pass to the City following the Contract Administrator's inspection of the
Work and, if the Work is approved, upon Contract Administrator's issuance of written hnal
acceptance of the complete installed Project. Final acceptance shall be deemed to occur as of the
later of (1) the date of the City's notification (through Contract Administrator) to Artist of final
acceptance: or (2) ninety (90) business days after the Artist has notified the City in writing, that the
Work has been completed and is ready for inspection (provided, however, that if the City, upon
receipt of such notice and prior to the expiration of the 90-day period, gives Artist written notice
specifying and describing the Work which has not been completed, and/or the City does not
otherwise accept Work due to defect, then the 90-day period in this subsection (2) shall be extended
for an additional 90-day period). Upon demand from the City, Artist shall immediately execute a Bill
of Sale or such other document, as prepared by the City, memorializing the transfer of title of the
Artwork from Artist to the City. In furtherance of the aforestated, it is understood that any risk of loss
or damage to the Work and/or the Project shall be the sole responsibility and liability of Artist until
such time as the Contract Administrator has issued a final written acceptance of the Project, or, if the
90-day period expires as per 2.13 (2) and Artist has executed the required Bill of Sale (and/or other
conveyance document) to the City.
2.14 Upon Contract Administrator's written final acceptance of the complete installed Project and transfer
of title of the Artwork to the City, all documents related to the design, fabrication, 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 City shall be free to exhibit and/or
reproduce these documents as a record of Artist's conception of the Project.
ARTICLE 3
TERM and TIME OF PERFORMANCE
3.1 The term of this Agreement shall begin on the date it is fully executed by both parties. Thereafter,
Artist shall diligently prosecute the Work in accordance with the Project Schedule set forth in Exhibit
"A-1 ".
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3.2 Time shall be deemed to be of the essence in Artist's performance of their duties, obligations and
responsibilities, as required by this Agreement.
3.3 The City, through the Contract Administrator, may grant a reasonable extension of time to the Artist
in the event that there is a delay on the part of the City in performing its obligations hereunder; or in
making the Site available to Artist for proceeding with the Work; or if conditions beyond the Artist's
control render timely performance of the Artist's services impossible or unexpectedly burdensome.
All requests for extensions of time must be submitted in writing to the Contract Administrator by the
Artist as soon as the delay or conditions become known and their impact is evaluated, and shall not
be effective unless approved in writing by the Contract Administrator.
3.4 Either party is excused from performance and shall not be liable for any delay in delivery or for non-
delivery, in whole or in part, caused by the occurrence of a 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.
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), the total amount of Twenty Six Thousand Eight Hundred and Seventeen
Dollars ($26,817.00), which amount shall be the total compensation to Artist for the Project. No
amount shall be paid to Artist for reimbursable or other expenses.
4.2 City has included a fifteen (15%) percent contingency fee, in the amount of Four Thousand Twenty
Three Dollars ($4,023.00), to provide for unforeseen costs. This amount, in whole or in part, is to
used by the City, at its sole discretion; is included for the sole benefit of the City; and shall not be
considered part of Artist's compensation.
4.3 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 and/or Project Coordinator, as applicable. An original invoice
plus one copy shall be submitted to both Contract Administrator and Project Coordinator, within
fifteen (15) days of the end of the month, except the final invoice which must be received no later
than sixty (60) days after completion of all Work by Artist. Invoices shall designate the nature and
portion of the Work performed (percentage of completion). All invoices must be signed off and
approved by both Contract Administrator and Project Coordinator 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.
4.4 City shall pay Artist only for Work satisfactorily performed and accepted by the Contract
Administrator and/or Project Coordinator, as applicable, 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:
FOR CONTRACT ADMINISTRATOR:
Dennis Leyva
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
dennisleyvaCa~miamibeachfl.gov
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FOR PROJECT COORDINATOR
Mike Alvarez
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
m ikealva reztc'~r.m iam i beachfl. gov
4.5 Notwithstanding any provision of this Agreement to the contrary, City may, at the sole discretion
of the Contract Administrator, reasonably withhold, in whole or in part, 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:
Wendy Wischer
2312 Pelican Drive
Sarasota, Florida 34237
ARTICLE 5
CHANGES IN SCOPE OF SERVICES
5.1 Any change to the Scope of Services must be accomplished by a Contract Amendment, approved by
the City Commission and/or the City Manager, as applicable, and executed by the parties in
accordance with Section 11.16.
5.2 Any significant changes in the scope, design, color, size, material, utility and support requirements,
and/or texture of the Work or of the Project, or location of the Site must be approved in writing by the
Contract Administrator prior to implementation of same. A significant change is any change that
affects the cost, installation, scheduling, Site preparation or maintenance of the Work, and/or the
Project, or the concept of the Project, as represented in the original approved design.
ARTICLE 6
ARTIST'S WARRANTIES
6.1 The Artist warrants that (a) the Project being commissioned is the original product of the Artist's own
creative efforts; and (b) 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 The Artist warrants that reasonable maintenance of the Project will not require any extraordinary
procedures.
6.3 The Artist warrants that she shall deliver the Artwork to the City free and clear of any liens from any
source whatsoever.
6.4 The Artist warrants that he shall faithfully perform the Work in accordance with standards of care,
skill, training, diligence and judgment provided by highly competent professionals who create,
fabricate and install public works of art of a similar nature.
ARTICLE 7
OBLIGATIONS OF CITY
7.1 City shall assist Artist by providing, upon Artist's request, but without representation by City of any
kind, all public information it has in its possession pertaining to the Site.
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7.2 City shall:
a. provide Artist with the Project Budget;
b. arrange for access so that Artist may enter upon the Site as required for Artist to perform the
Work under this Agreement;
c. give prompt written notice to Artist whenever the City becomes aware of any development that
affects the scope or timing of the Work;
d. arrange public meetings and consultations, as deemed necessary by the City to fulfill the Artist's
obligations under this Agreement;
e. review submitted materials (whether through Contract Administrator or Project Coordinator, as
applicable) in a reasonably timely manner;
f. prepare and install, at its expense, a plaque or sign identifying the Artist, the title of the Project,
materials used, year of completion, and a narrative explanation of the Project, including Artist's
credits, and reasonably maintain such notice in good repair;
g. reasonably assure that the Project is properly maintained, taking into account the
recommendations of the Artist, as set forth in Exhibit "C", to be provided by the Artist.
ARTICLE 8
ARTIST'S RIGHTS
8.T It is understood that the specific location of the Artwork and its permanent public installation is
integral to this Agreement. The City agrees to make all reasonable efforts to maintain the integrity of
the Artwork as defined by its location (the Site). The City will not knowingly make any use of the
Artwork in a manner which would reflect unfavorably on Artist's name or reputation as an artist or
which would violate the spirit of the Projector intertere with its creative intent.
8.2 City shall notify Artist of any proposed City action that would remove the Artwork from the Site, or
have the result of irreparably damaging or destroying the Artwork, by providing notice to Artist by
registered mail at the most recent address submitted by Artist and on file with the City. In that event,
City shall offer the Artist the option of removing the Artwork from the Site, at no charge to Artist,
provided that Artist will move and/or transport the Artwork from the Site at her sole cost and
expense, and City shall have no liability to Artist as to the means and method of removal and
transport, and shall have no other liability to Artist in the event the Artwork is damaged or destroyed
in the process. In the event that Artist fails, within ninety (90) days of receipt of such notice, to
remove the Artwork, City shall have the right to proceed with the removal of the Artwork. In the
event that City has used reasonable efforts, without success, to notify the Artist of its intended action,
City shall have no further liability to Artist under this Agreement, or as to the Artwork, and Artist shall
be deemed to have waived any and all claims that she may have against City as a result of such
relocation, removal, damage or destruction of the Artwork. The provisions of this subsection 8.2
shall be non-transferable and only apply as to Artist, and shall not apply or be enforceable by any
heirs, successors, assignees, and/or other transferees and / or successors in interest of Artist.
8.3 Subject to subsection 7.2(g), the City agrees to take such measures as it deems necessary, in its
reasonable discretion, to maintain the Artwork, which includes maintenance and repair of each and
every component part. 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. During Artist's
lifetime, City shall not repair the Artwork without consulting with the Artist. City shall attempt to notify
Artist in the same manner as provided in subsection 8.2 above and, in the event the City has made
reasonable efforts, without success, to notify Artist of its intended action, City shall have no further
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liability to Artist under this Agreement or as to the Artwork, and Artist shall be deemed to have
waived any and all claims that she may have against City, as a result of such repairs or restoration to
the Artwork, or in the event of any resultant damage or destruction of the Artwork pursuant to this
subsection 8.3. To the extent practical and during Artist's lifetime, the City may, in its sole discretion,
consider Artist in making or personally supervising significant repairs and, if City so 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 Artist's fee for such services. All repairs and restorations shall be made in
accordance with recognized principles of conservation.
ARTICLE 9
COPYRIGHTS
9.1 INTELLECTUAL PROPERTY. Notwithstanding the foregoing, the Artist's name, likeness, signature,
preparatory drawings, designs and photographic or facsimile images of the artwork, and the artwork,
and all copyrights, trademarks, service marks, logos and other images related to Artist or the
artwork, and any derivative of the same, 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. The City and Contract Administrator or either of them, shall take such action (including
signature and assistance in preparation of documents or the giving of testimony) as may be
requested by the Artist to confirm Artist's ownership of Intellectual Property as provided herein. Artist
may apply to register any mark or copyright which depicts, is derived from, represents, duplicates or
is related to Artist or the Artwork, in any country, state, or province.
9.2 LICENSE. Artist hereby grants to City anon-exclusive, perpetual, irrevocable, and royalty-free
license to reproduce, make, print and/or publish photographic, filmed or videotaped reproductions
and other two-dimensional likenesses of the Artwork and/or the proposals for the Artwork for such
purposes as determined solely by the City in its discretion for the entire term of the work's copyright,
subject to the limitations set forth herein. In this connection, it is understood that the uses
contemplated under this license include, without limitation, public promotional and advertising uses,
but the right to grant third party location licenses during the lifetime of the Artist is limited as provided
in Section 9.3 below. It is also understood that, subject to Section 9.3, 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 and/or videotaped films in
accordance with "fair use" as defined in 17 USC §107. Notwithstanding anything to the contrary
herein, any reproduction of the work for commercial purposes (including on merchandize e.g., t-
shirts, harts or in commercial advertising for third party products or) shall be subject to notifying the
Artist. In connection with any such reproduction and publication by any party, that party shall arrange
for appropriate credit identifying the name of the Artist as the Artwork's creator, the title of the
Artwork, the materials, dimensions, and the location thereof.
9.3 Artist agrees that all Work pertormed under this Agreement shall comply with all applicable patent,
trademark and copyright laws, rules, regulations and codes. The Artist further agrees that she 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 the Artist uses any protected
material, process or procedure, the Artist shall disclose such patent, trademark or copyright in the
construction drawings and technical specifications and, in any event, prior to actual fabrication 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, or that any third party alleges or claims that any
element of the artwork is liable to cause deception or confusion to the public, or is liable to dilute or
infringe any right, City shall make all reasonable efforts to (a) forthwith notify Artist or its authorized
representative giving particulars thereof; and (b) provide necessary information and assistance to
Artist or its authorized representative. Either City or Artist may bring infringement actions against
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third parties. Any award received from such actions shall be split evenly between City and Artist
after reimbursement to the appropriate party for expenses and costs, including without limitation
reasonable attorneys' fees, incurred in bringing such actions. In any event, City and Artist will
cooperate with each other to whatever extent is necessary to prosecute any such action including,
without prejudice to the generality of this requirement, consenting to be a party to the proceedings.
ARTICLE 10
TERMINATION
10.1 This Agreement may be terminated for cause by City, through the Contract Administrator, upon thirty
(30) days prior written notice to Artist.
10.2 Termination of this Agreement for "cause" shall include failure to continuously perform the Work in a
timely manner calculated to meet or accomplish the objectives of City as set forth in this Agreement;
a breach of the provisions of this Agreement (notwithstanding whether any such breach was
previously waived or cured); or for any other reason necessary to protect the health, safety, or
welfare of the general public.
10.3 Notice of termination shall be provided in accordance with the Notices section of this Agreement
except that notice of termination which Contract Administrator deems necessary to protect the public
health, safety, or welfare may be by verbal notice which shall be promptly confirmed in writing in
accordance with the Notices section of this Agreement.
10.4 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 except for any compensation
due and owing to Artist with regard to Work satisfactorily performed and accepted prior to the period
before the effective date of termination. Notwithstanding the above, the 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 IegaUequitable
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.
10.5 The death or permanent incapacity of the Artist shall automatically terminate this Agreement.
Neither the Artist nor the Artist's estate shall have any further right or obligation to perform
hereunder. The City shall pay the Artist's estate the compensation payable for any Work
satisfactorily performed and accepted prior to such termination (not heretofore paid to Artist),
reduced by the amount of additional costs that shall be incurred by the City by reason of such
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 that are related to this
Project. Artist shall keep such books, records, and accounts as may be necessary in order to record
complete and correct entries related to the Project.
Artist shall preserve and make available, at reasonable times for examination and audit by the City's
Chief Financial Officer or his/her designee, all financial records, supporting documents, statistical
records, and any other documents pertinent to this Agreement for the required retention period of the
Florida Public Records Act (Chapter 119, Fla. Stat.}, if applicable, or, if the Florida Public Records
Act is not applicable, for a minimum period of three (3) years after termination of this Agreement. If
any audit has been initiated and audit findings have not been resolved at the end of the retention
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period or three (3) years, whichever is longer, the books, records, and accounts shall be retained
until resolution of the audit findings.
11.2
11.3
11.4
11.5
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 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.
Artist shall not engage in or commit any discriminatory practice in violation of the Miami Beach
Human Rights Ordinance, as same may be amended, in pertorming any services pursuant to this
Agreement.
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 fist following a
conviction for a Public Entity Crime may not submit a bid on a contract to provide any goods or
services to City, may not submit a bid on a contract with City for the construction or repair of a public
building or public work, may not submit bids on leases of real property to City, may not be awarded
or perform work as a contractor, supplier, subcontractor, or consultant under a contract with City, and
may riot 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 she 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.
INDEPENDENT CONTRACTOR
Artist is an independent contractor under this Agreement. In providing such services, neither Artist
nor her agents shall act as officers, employees, or agents of the City. This Agreement shall not
constitute or make the parties a partnership or joint venture, and furthermore, this Agreement does
not constitute a work for hire arrangement or agreement.
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
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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
11.7
11.8
NOTICES
Whenever either party desires to give notice to the other, such notice must be in writing, sent by
certified United States Mail, postage prepaid, return receipt requested, or by hand-delivery with a
request for a written receipt of acknowledgment of delivery, addressed to the party for whom it is
intended at the place last specified. The place for giving notice shall remain the same as set forth
herein until changed in writing in the manner provided in this section. For the present, the parties
designate the following:
FOR CITY:
Art in Public Places
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
Attn: Dennis Leyva
with copies to:
City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
FOR ARTIST:
Wendy Wischer
2312 Pelican Drive
Sarasota, Florida 34237
ASSIGNMENT AND PERFORMANCE
Neither party shall assign, transfer, or encumber all or any portion of this Agreement without the prior
written consent of the other, which consent, if given at all, shall be at such party's sole discretion.
Artist represents that all persons providing any Work required by this Agreement have the knowledge
and skills, either by training, experience, education, or a combination thereof, to adequately and
competently perform the duties, obligations, services and work contemplated in the Scope of
Services and to provide and perform same for the agreed compensation.
Artist shall perform her duties, obligations, and services and work under this Agreement in a skillful
and respectable manner. The quality of Artist's performance and all interim and final Work provided
to or on behalf of City shall be comparable to the best national and international standards.
CONFLICTS
Neither Artist nor her 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 her performance
under this Agreement.
Artist agrees that none of her 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. The limitations of this section shall not
preclude Artist or any other persons from representing themselves in any action or in any
administrative or legal proceeding.
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11.9 CONTINGENCY FEE
Artist warrants that she 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
she 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 laws, codes, ordinances, rules, and regulations in
performing his duties, responsibilities, and obligations related to this Agreement.
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 [Intentionally omitted]
11.15 APPLICABLE LAW AND VENUE
This Agreement shall be interpreted and construed in accordance with and governed by the laws of
the State of Florida. Venue for litigation concerning this Agreement shall be in Miami Dade County,
Florida.
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
Agreement and approved and executed by the City Commission, if over $25,000, or the City
Manager, if less than $25,000, and Artist.
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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 throughout the term of this Agreement 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. Contractors must submit proof of Workers' Compensation and Employer's Liability in the
form of a Certificate of Insurance. All other State regulations apply.
c. Automobile insurance is required in the amount of Three Hundred Thousand ($300,000)
dollars if Artist will be parking vehicles on public property, which is not a designated public
parking space, to unload materials/supplies.
The City of 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 the Commencement Date of this Agreement,
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, at
law or in equity, which may arise or be alleged to have arisen from the negligent acts, errors, omissions
or other negligent conduct of the Artist, her employees, agents, sub-consultants, or any other person or
entity acting under Artist's control, in connection with the Artist's performance of the Work pursuant to
this Agreement; and to that extent, the Artist shall pay all such claims and losses and shall pay all such
costs and judgments which may issue from any lawsuit arising from such claims and losses, and shall
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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 the Artist for
performance of the Work under this Agreement is the specific consideration from the City to the Artist for
the Artist's Indemnity Agreement.
The Artist's obligation under this Subsection shall not include the obligation to indemnify the .City of
Miami Beach and its officers, employees and agents, from and against any actions or claims which arise
or are alleged to have arisen from negligent acts or omissions or other negligent conduct of the City and
its officers, employees and agents. The parties each agree to give the other party prompt notice of any
claim coming to its knowledge that in any way directly or indirectly affects the other party.
Upon final acceptance, the City shall, to the extent permitted by law, indemnify and hold harmless
the Artist against any and all claims or liabilities then existing or arising thereafter in connection with
the Work, the Site, the Project or this Agreement, except claims by the City against the Artist and
claims which may occur as a result of the Artist's s breach of the warranties provided in Article 6.
IN WITNESS WHEREOF, the parties have made and executed this
executed below by their respective duly authorized officials. .
CITY
City of Miami Beach, Flo 'da
By
/~ day of, i , 2009
ATTEST: lil /1 _ ~ Y/ _ _ n
City Clerk
ARTI
on the respective dates, as
day (/ , 2009
WITNESS
Print
WI ES SS:
it
APPROVED AS TO
FORM & LANGUAGE
tfK .FOR EXECUTION
t- ~-,~-~
City Attome Date
~~~~
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EXHIBIT A
ARTIST'S SCOPE OF SERVICES
ARTWORK/PROJECT: "Liquid Measures"
PURPOSE: Artist will design, permit, transport, inspect, and install the above original work of art (also
referred to as artwork or Project).
LOCATION OF SITE: Southwest Corner of Washington Avenue and Third Street, Miami Beach, Florida.
ADMINISTRATIVE COORDINATION: The Contract Administrator shall be the City's authorized
representative to coordinate, direct, and review (with Project Coordinator, as applicable and as provided
herein), on behalf of the City, all matters related to the Work. The Artist shall maintain regular communication
with the Contract Administrator via phone, letter ore-mail.
DESIGN COLLABORATION: During the design of the Artwork, the Artist shall coordinate its progress with
the Contract Administrator and Project Coordinator. Should the design of the Artwork require specialized
professional services, the Artist shall hire an appropriate sub-consultant and/or sub-contractor, subject to the
prior written approval of the Contract Administrator. Upon approval of the Artwork design, the Artist shall
prepare all necessary construction documents for fabrication/installation of the Artwork and ancillary/support
facilities needed to install the Artwork, as required by this Agreement, and in compliance with all applicable
laws and codes.
CONSTRUCTION AND INSTALLATION COORDINATION: During the construction and the installation of
the Artwork, the Artist shall collaborate and coordinate the Work with the Contract Administrator and Project
Coordinator. The Artist shall be responsible for construction oversight during the fabrication and integration
of all Artist-designed components, whether fabricated by Artist's subcontractors or included in construction
documents to be fabricated and installed by others.
DELIVERABLES: the Artist shall provide the following deliverables:
1-A Research. The Artist shall provide documentation of background research involving site specific
environmental and cultural elements and site documentation.
I-B Conceptual Design. The Artist shall develop a conceptual design proposal for the Project and shall
secure the advisory recommendation of its approval by the Miami Beach Art in Public Places (which
is an advisory board of the CITY) as follows:
1. The Artist shall personally present the conceptual design proposal to the Art in Public Places
Committee.
2. This phase includes a Site visit for presentation to the Art in Public Places Committee and
coordination with Project Coordinator.
3. This phase includes a Site visit by the Artist or Artist's representative for presentation to the
City's Historic Preservation Board, and to further coordinate design, fabrication, and
installation of the Project with the Contract Administrator and Project Coordinator. The City
acknowledges that this phase I-B has been successfully completed.
I-C Design Development. The Artist shall complete the design development of the approved Artwork,
develop construction documents, based on the approved concept, for fabrication of the work,
coordinate the Work with the Contract Administrator and Project Coordinator and secure all
applicable approvals and permits. Approval by the Contract Administrator and notice to proceed for
fabrication shall occur after submittal of all applicable artwork deliverables and shall require the
additional review and approval of Project Coordinator (which shall occur concurrent with Contract
Administrator's review and approval process).
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The Artist shall submit final design drawings for fabrication, artist proofs, material samples,
construction documents, verified cost estimate, sub-contractor list, permits and approvals,
and a fabrication and installation schedule.
2. If the verified cost exceeds the Project Budget, the Artist shall be obligated to redesign the
Artwork to fit within the established budget, inclusive of all payments to the Artist, at no
additional charge to City.
3. Artist shall coordinate and participate in all product and material testing related to the Project
with the Contract Administrator and Project Coordinator, as applicable, and determine final
product and material with the City subsequent to testing.
4. This phase includes Site visits for coordination and presentation purposes.
1-D Fabrication and Installation. The Artist shall deliver and install all Artwork and Artwork support
components, as per the approved construction drawings. Artist shall provide construction
administration services as required during the installation of the Artwork at the Site, including, but not
limited to, the coordination of all applicable inspections by all governmental authorities having
jurisdiction over the Project.
I-E Final Conservation Documents. Upon completion and installation of the Artwork, the Artist shall
submit all photographic documentation and completed cataloging forms including shop drawings,
manufacturer specifications and product cut-sheets, as applicable. If the Artist utilizes computer
technology in the fabrication of the Artwork, the Artist shall submit electronic copies of any computer
files that will support on-going operations or future repairs and conservation of the Artwork. Artist
shall also submit replacement material(s) and/or parts, as applicable, and as deemed necessary by
the Artist and Contract Administrator, to be used for future repairs of the Artwork (quantities to be
determined by Artist and Contract Administrator). Artist to demonstrate any maintenance and
replacement procedures of the Artwork, as deemed necessary by the Contract Administrator.
1-F Warranty Period. All Work furnished under this Agreement shall be guaranteed against defective
materials and workmanship, improper performance and noncompliance with the approve
construction drawings, for a period of thirty (30) days after final acceptance of the Project by Contract
Administrator.
COMPLETION AND INSPECTION: Upon completion and installation of all designed and fabricated
components, the Artist shall be responsible for obtaining hnal approval from all applicable governmental
authorities. If Contract Administrator finds the Work acceptable, the requirements of the Agreement with
regard to design, fabrication, and installation of the Work and the Project satisfied, and all conditions of the
permits and regulatory agencies fulfilled, final approval shall be obtained from the Contract Administrator.
PHOTOGRAPHIC 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 and all applicable uses by the City.
COMMUNITY INVOLVEMENT and EDUCATIONAL OUTREACH: In the development of the Artwork
design, the Artist shall research the relevant concerns and interests of the City, and the surrounding
community. The Artist shall participate in at feast one community meeting and two other public meetings, as
shall be determined by the Contract Administrator.
TIMELINE FOR COMPLETION: Artist shall coordinate the progress of the Work with the Contract
Administrator and/or Project Coordinator.
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PERMITS AND APPROVALS: Artist shall prepare applications and such documents and design data as
may be required to procure approvals from all such governmental authorities that have jurisdiction over the
Project. The Artist shall participate in meetings, submissions, resubmissions and negotiations with such
authorities. The 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 permits to and from the
respective jurisdictional authorities. However, the Artist shall coordinate permitting and approval related
issues with Project Coordinator, and copy the Contract Administrator on all permit related correspondence.
The receipt of all necessary permits is a condition precedent to the fabrication of the Work. As of the
effective date of this Agreement, it is anticipated that the following governmental authorities may have
jurisdiction over Project:
• The City of Miami Beach Building Department
• The City of Miami Beach Planning Department
• The City of Miami Beach Public Works Department
• The City of Miami Beach Historic Preservation Board
Notwithstanding the above, the City's failure to identify governmental authorities that may have jurisdiction
over Project shall not relieve the Artist from the responsibility to procure all requisite permits.
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 and display of the Project, including
landscaping, footings, power/electricity, public access (pathways, sidewalks, etc.), public security, and
lighting.
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EXHIBIT A-1
PROJECT SCHEDULE
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EXHIBIT B
COMPENSATION AND SCHEDULE OF PAYMENTS
City shall pay Artist the total sum of Twenty Six Thousand Eight Hundred and Seventeen Dollars
($26,817.00) for the Work contemplated in this Agreement, which sum shall represent the total
compensation to Artist for the Project. No amount shall be paid to Artist 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 and/or Project
Coordinator's acceptance of said portion of the Work as applicable.
Payments to Artist shall be made for Work satisfactorily completed in accordance with the
progress toward completion of the Project based on the below schedule:
1. Four Thousand Dollars ($4,000.00) (which is approximately 15°kof the fixed fee) - to
be paid upon the signing of the contract and the development of the work plan which
wilt include atime-line and Scope of Work.
2. Five Thousand Dollars ($5,000.00) (which is approximately 19°~ of the fixed fee) - to be
paid upon acceptance by the Contract Administrator and Project Coordinator of all
design/development including pre-engineering and permitting (design development),
and specifically: testing of materials and electrical drawings for installation of lights, as
further provided in the Scope of Work.
3. Five Thousand Dollars ($5,000.00) (which is approximately 19°~ of the fixed) - to be
paid upon submission and approval by the CONTRACT ADMINISTRATOR of contract
signing for the materials.
4. Four Thousand Dollars ($4,000.00) (which is approximately 15°~ of the fixed fee) - to
be paid for Site visit, Site Preparation, including shipping materials to Site and 100°~
completion of the installation of the lights.
5. Four Thousand Dollars ($4,000.00) (which is approximately 15% of the fixed fee) - to
be paid upon submission to and approval by the Contract Administrator and Project
Coordinator for 100°~ completion of the installation of glass tiles.
6. Four Thousand Eight Hundred and Seventeen Dollars ($4,817.00) (which is
approximately 17% of the fixed fee) - be paid after Contract Administrator and Project
Coordinator deem after a physical inspection of the artwork is fully installed and
submission to and approval by Contract Administrator of Photo Documentation as
outlined in Section 2.4 of this Agreement.
Catalog #,
EXHIBIT C
CITY OF MIAMI BEACH ART IN PUBLIC PLACES
CATALOGING FORM
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, a-mail, web site:
E. Contact Phone numbers
Business:
Home:
Mobile:
F. One paragraph biography of artist:
II. Work of Art
A. Title:
B. Medium:
C. 1. Dimensions in inches or centimeters: H: W: D:
2. Image with frame (if any): H: W: D:
D. Frame Description:
E. Inscription marks:
F. In case of portable and multiple artwork, note on artist preference for display (ex:
sequential series, installation height, spacing, etc...):
G. Artwork with electronic components used:
-Name of item:
-Manufacturer info (address, telephone, fax, e-mail):
-Supplier info (address, telephone, fax, e-mail):
H. Artist's statement:
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III. Fabrication Information
A. Material(s) used in Artwork:
B. Material Finish:
C. Materials used in the presentation of the project (maquette):
D. Fabricators (name, address, phone, fax, a-mail, web site):
E. Fabrication method (attach diagrams or drawings):
F. Architect/Engineer (name, address, telephone, fax, e-mail):
IV. Installation
A. Installation executed by (name, address, phone, fax, a-mail, website):
B. Installation method (attach diagram of substructure, footings):
C. Date of Installation:
V. External Factors
A. Describe physical positioning of the artwork:
B. Describe existing environmental factors which may affect the condition of the
artwork:
C. tf the work is site-specific, describe the relationship of the work to its site:
VI. Maintenance (attach schedule of maintenance and replacement instructions for
specific items: marble blocks, pin connection and any other supporting structure as
applicable)
A. Short-term:
B. Long-term:
C. Note desired appearance of the artwork:
VII: Digital copies for use in repair of sound art and graphic reproduction:
Signature Date
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