HomeMy WebLinkAboutOutdoor Arts Foundation, Inc.- Uct. /q,av~~ 2.aoS-2~b3
` Agreement between
„Gifu of Miami. Beach and The Outdoor Arts Foundation, .Inc.
For Commissioned Artwork at Collins Park
This Agreement made and entered into this ~~ day of ~ , 2010, by
and between the CITY OF MIIAMI BEACH,. a municipal corporation existing. under the
laws of ahe State of Florida (hereinafter .referred to as City), and The Outdoor Arts
Foundation; Inc., aFlorida-k~ased 501(c)(3) not-for-profit organization whose principal
". address is 1285 North MclMullen Booth Road, Clearwater, FL, 33759 (hereinafter
referred to as OAF):
WHEREAS, the City wishes to engage OAF to design, fabricate, transport and
install a unique and original work of art (also .referred to herein as the Artwork) at the
location in Collins Park indicated in OAP's conceptual design .proposal which,,has
.previously beenapproved by ahe 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, OAF_ desires to contract with the City for performance of .the
aforestated services relative ito the Artwork, as hereinafter set forth.
NOW THEREFORE, t;ity and OAF, in consideration of the mutual covenants and
agreements herein containedl, 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 Contraict). 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 OAF. The Outdoor.Arts Foundation, Inc., the organization 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 OAF and
installed on the Site,' and to be known as "Fiddler Crab", that has been approved,
by the City Commission, and is further described in .Exhibit "A". (entitled, "OAP's
" " Scope of Services"), attached hereto.
- 1.4' City. Shall mean the City of Miami Beach, Florida, a municipal corporation
having its principal olFfices at 1700 Convention Center' Drive, Miami Beach,
Florida, 33139. ~ ~ .
1.5 [Intentionally:omitted)
City Commission. Shall mean the governing and legislative body of the City.
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, 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 OAF,
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
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,
' 1.11 Exhibits. Shall mean the various exhibits attached to and' incorporated in this
Agreement and referred to as follows:
Exhibit A: OAPs 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
OAF authorizing the commencement of the Work.
1.1.3 Project. That certain unique and original work of art. (also referred to as the
„ Artwork) to be created by OAF and installed on the Site, and to be known as
"Fiddler Crab", 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."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 OAF,
~= 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. [Lntentionally omitted]
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4.:18 `Work. Any work anc~/or services required by OAF under this Agreement, as
`required to successfugly complete the Project (including, without limitation, work
and/or services described in Exhibit "A"). "
" ~ ARTICLE 2
SCOPE OF SERVICES
2.1 OAFshall perform all Work identified in this Agreement and Exhibit "A" for the
` design, permitting, fabrication, transportation, inspection, and installation of the
Project: .
2.2 OAF acknowledges aid 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 OAF is obligated to
commence and complete the Work, and the amount of compensation the City is
_ obligated or committed to pay the OAF), :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 OAF shall provide monthly Project progress reports and/or deliverables in a form
. and manner acceptable to the Contract Administrator. -
2.4 Upon. completion of the Project, OAF shall furnish the Contract Administrator with
documentation showing the completed Artwork as foNows:
a. [Intentionally ornitted] ~ .
1. [Intentionally omitted]
. 2. [Intentionally omitted]
~: b. [lnteritionally ornitted]
_ c: OAF shall provide Contract Administrator with copies of electronic files,
sketches; drawings, construction documents, and as-built plans showing
-_ and/or accurafE~ly depicting the completed Artwork.
2.5 Upon completion of the Project, OAF 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 "C"
("Cataloging Form") hereto, '
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2.6 OAF shall be solely responsible for the quality and timely prosecution, completion
and installation of the Work and thee. Project. OAF shall be responsible for
- designing the Project so that it can be fabricated and installed without exceeding '
the approved Project E3udget. ~ ~ ,
" r
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._
2.7 OAF acknowledges and warrants to City that an essential element of this
. Agreement is the skill and creativity of OAF, and that it is solely responsible for
: the quality of the .Project. OAF 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 as:~ignment, OAF will still be held .ultimately .responsible for all
portions of the Work. OAF warrants to City that it shall be solely responsible for
supervision of (and a.r,y compensation o) any and all third :parties, and that the
City shall have no liability whatsoever, whether financial or otherwise,. with .regard
to same.
2:8 OAF 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. OAF shall be solely responsible for obtaining any and all
required approvals from all governmental. authorities that have jurisdiction .over
. .the Project. and #or obtaining all applicable permits related to the Project:
2.94 OAF 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.
2:10 . .OAF 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..
2.1.1 OAF 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 OAF, without representation, any background materials and
information on matters affecting the Site.
" 2.12 When. working on the ,site, 0AF shall promptly perform such periodic clean up as
may be required by the Contract Administrator,. and shall also remove any of its
equipment, excess materials, and waste promptly from the Site, as directed by
Contract Administrator.
213f OAF shalt bear any transportation and storage ;costs resulting from the
: ~ fabrication, delivery, storage, and installation of the Work and the Project.
'. 2.14 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. Upon .demand from the City, OAF shall immediately execute a Bill of
" Sale, or such other document prepared by the City, memorializing the transfer of
title to the Artwork from OAF to the. City. In furtherance of the aforestated, it ,is
- understood that any risk of loss or damage to the Work or the Project shall be the
sole responsibility and .liability of .OAF until such time as the Contract.
.Administrator has issuad. a final written acceptance of the Project, and LOAF has
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executed the ..required -Bill of Sale (and/or other conveyance document) to the
City.
2.15 Upon Contract Administrator's written final acceptance of the 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 it deems necessary, in its sole and absolute discretion.
ARTLCLE 3
TERM .and TIME DF PERFORMANCE
3.1 The term. of this Agreement. shall begin on the date it is fully executed by both
- ~ ~ parties.. Thereafter,, OAF shall diligently and continuously..prosecute the Work in
accordance with the Project Schedule set forth in Exhibit "A-1", attached hereto. .
3..2 Time .shall be deemed' to be of the essence in OAPs performance of. its duties,
obligations and responsibilities, as required by this Agreement.
.~
3.3 TheeContract Administrator may grant a reasonable extension of time to 'OAF in
the event that there is pan unreasonable delay on the part. of the City in performing
its obligations hereunder, or in making the Site available to OAF for proceeding
with the Work;. or if conditions beyond OAPs control render timely performance
of the Work impossible or unexpectedly burdensome. All requests for extensions
of time must be submitted in writing to the Contract Administrator (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.
4:1 City agrees to pay.OAF, in the manner specified in Section 4.4 and .Exhibit"B"
- :. (Compensation and. Schedule of Payments) here to, the amount of Seventy Nine
- ~ - .Thousand, 'Five Hundred Dollars ($79,500.00), which amount shall be the total
y compensation. to OAF fior the Project".. Except as provided in Section 11.19: where
of, no other amount shall be paid to OAF for reimbursable or other expenses.
" " .4.2: City has included a .fifteen (15%) percent contingency fee, in the amount of .
,Eleven Thousand Nine Hundred and Twenty Five Dollars ($11,925.00), to
,provide for unforeseen costs. This amount, in whole or in part, is to be used
ONLY by the City,` at its. sole discretion; is included for the sole benefit of the City;
` and. shall NOT be considered. part of OAF'S comperisation.
4.3 OAF may submit invoices for compensation no more often than on a weekly
. ~ 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.
- 4.4 " City shall pay OAF (beat only for Work satisfactorily performed and 'accepted by
the Contract Administrator), within'.thirty (30) calendar days of receipt by the City
of OAPs proper invoiice. Invoices shall be submitted- by OAF to the City as .
follows:
Keith. Mizell, Contract Administrator
City of Miiami Beach
CFP Office
", 1700 Convention Center Drive .
Miami~Be~ach, FL 33139
KeithMizell@miamibeachfl.gov
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.
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4.6 Payment shall be made to OAF at:
The Outdoor Arts Foundation
1285 North McMullen Booth Road
Clearwater, FL, 33759
Attn: Jay Goulde, Executive Director
ARTICLE 5
CHANGES IN SCOPE OF SERVICES
5.1 Any signifcant changes in the scope of services, including, without limitation, a
change in the design, color, size, material, utility and support requirements,
and/or texture of the Work or of the Project; or location of the Site; or to OAPs
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:
ARTICLE 6
OAF'S WARRANTIES
6.1 OAF warrants to the City that (a) the Project being commissioned is the original
.product of OAPs 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 OAF with respect to any future commissioned public or
private projects.
6.2 OAF warrants to the City that reasonable maintenance of the Project will not
require any extraordinary procedures.
6.3 OAF 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 OAF warrants to the City that it 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:
a. .provide OAF, 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 OAF with the Project Budget;
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c. arrange for access so that OAF may enter upon the Site, during customary
business hours, for OAF to perform the Work;
d. give prompt written. notice to OAF 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 OAF, the title
of the Project, matE~rials used, year of completion, and a narrative explanation
of the Project, acid reasonably maintain same in good repair; grid .
h. reasonably assure that the .Project is properly maintained, taking into account
the recommendations of OAF, as set forth in Exhibit "C".
ARTICLE 8
OAF'S RIGHTS
8.1 . Thee City agrees to make all reasonable efforts to maintain the .integrity. of the
_~ Artwork, and will not knowingly make any use of the Artwork in a manner which
. ~ w.ould reflect unfavorably on OAPs name or reputation, or which could violate the
. _ ~ spirit of the Project or interfere with its creative .intent.
_ 8.2 City shall notify OAF of any proposed City action that would remove the Artwork
.from the Site, or hawe the result of irreparably .damaging or destroying the
Artwork, by providing written notice to OAF, by registered mail, at the address
provided under the Notices section of. this Agreement. In that event, City shall
. offer 0AF the option of removing. the Artwork from. the Site, provided that OAF
will move and/or transport the Artwork from the Site at its sole cost and expense;
City shall have no liability to OAF as to the means and method of removal and
transport; _ and' shall have no other liability. to OAF in the event the Artwork is
damaged: or destroyed in the process: fn the event that OAF fails, within sixty
(60) days of receipt of the City's notice; to remove the Artwork, City shall have
the right to proceed with the removal of the Artwork; and City shalt have no
further liability to as tc~ the Artwork, and OAF shall be deemed to have waived
any and all claims that it may have against City as a result of such relocation,
removal, damage,. or destruction of the Artwork. The provisions of this Section
- 8.2 shall: be non-transfierable and only apply to OAF, and shall not apply or be
enforceable by any ..assignees, transferees, and / or any other successors in
interest of OAF.
8.3
The City agrees to take such-reasonable measures, as it deems necessary, in its
reasonable discretion, to maintain the Artwork. City shah 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 OAF in the same manner as provided in Section 8.2 hereof and, in the-
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event the City has made reasonable efforts, without success, to notify OAF of its
intended .action, City shall have no further liability to OAF, and OAF shall be
deemed to have waived any and ali claims that it may have against City, as a
_ result of such repairs or restoration to the Artwork, 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 OAF in making. or .personally ,supervising significant
. repairs or restorations: If City deems OAF'S participation is necessary, OAF
shall be paid a reasonable fee for any such services, provided-that. City and OAF
. shalt .agree, in writing, prior to 'the commencement of any significant repairs or
. restorations, upon said fee. All repairs and restorations shall be made in
accordance with recoglnized principles of conservation.
[REMAINDER OF THIS .PAGE LEFT INTENTIONALLY BLANK]
ARTICLE 9
COPYRIGHTS
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 OAF at the address provided in the
Notices section of this; Agreement. Either City or OAF may bring infringement
actions against third parties. Any, award received from such actions shall be split
evenly between City and OAF 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 OAF will reasonably
cooperate with each other to prosecute any such action including; without
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9.1
INTELLECTUAL PROPERTY. All. copyrights, arademarks, service marks, logos
and other images relatE;d to the Artwork (if any),. and' any right to commercially
exploit the same (all of irhe foregoing, collectively and individually, the "Intellectual
Properly") shalt be the.. exclusive property of OAF: OAF may apply to register any
;mark or" copyright which depicts, is derived from, represents, duplicates, or is.
related to°.OAF the Artwork.
9.2 LICENSE.- Notwithstanc'ling Section 9.1 or any other term or condition ofi this
Agreement, .OAF, hereby grants to City anon-exclusive,. perpetual, irrevocable, and
royalty-free license to reproduce, make, print and/or publish photographic, filmed
or videotaped reproductiions, and other two-dimensional likenesses, of the Artwork
(including,. without limitation, any .proposals for the Artwork) for such purposes as
deterrriined solely by the City, in its discretion, for the entire term of the copyright,
" patent, or trademark. In this connection,. it is understood that the uses
contemplated under this license include, without Iimitatior~, public promotional and
advertising. uses. It is also 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 notifying OAF. 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-OAF, and the City shall-.have no liability to OAF and/or to third parties as
- a result of any failure by third parties to obtain authorization "by OAF, or give credit
- to OAF, for such third p<~rty uses.
9.3 OAF agrees that all V~lork shall comply with all applicable patent, trademark and
copyright laws, rules, regulations and codes.. OAF further agrees that it will not
knowingly use any third party's patent,. trademark or copyright. unless OAF has
obtained proper permission and all releases, and other necessary documents. If
..OAF uses any protected material, process or procedure, OAF 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.
prejudice to the generality of this requirement, consenting to be a party to the
proceedings.;
ARTLCLE 10.
TERMINATION
1,0.1 Thin Agreement may Ibe terminated for cause, by the City Manager, .upon thirty
(30) days, prior written notice to OAF.
10.2 Termination of this Agreement for "cause" shall include 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 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 the City deems necessary
to protect .the public health,, safety, or welfare may be. given by verbal notice,
which ..shall be promt~tly confirmed in writing in accordance -with the Notices
section of this Agreement.
10.4 In the event of "a termiination 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, OAF shall not be relieved of liability to
the City for .damages sustained by the City by any breach. of the Agreement. by
OAF. 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 OAF.. The City shall be entitled to recover all
costs of such actions, including reasonable attorney's fees.
11.1
ARTICLE 11
MISCELLANEOUS
AUDIT RfGHT AND RIETENTION OF RECORDS
City shall. have the rigf it to audit the books, records, and accounts of OAF as they.
relate to the Project. OAF shall keep such books, records, and accounts as may
,be necessary in order to record complete and correct entries. related to the
Project.
OAF shall preserve and make available, during customary business hours, for
examination and audil: by the City Mayor, and/or his authorized representatives,
..all. financial records, supporting documents, statistical records, and any other
documents ..pertinent to this Agreement and 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 ofi this Agreement,
. •whichever is longer. If any audit has been initiated and audit findings have not
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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
OAF 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.. OAF 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.
OAPs 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
OAF 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 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 hot 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, OAF 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 OAF has been placed on
the convicted vendor Vist.
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11.4 INDEPENDENT CONTRACTOR
OAF is an independent contractor under this Agreement. In .providing such
services, neither OAF 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 OAF 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 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:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
Attn: Keith Mizell, Contract Administrator
FOR OAF:
Outdoor Arts Foundation
1285 North McMullen Booth Road
Clearwater, FL, 33759
Attn: Jay Goulde, Executive Director
1.1.7 ASSIGNMENT AND PERFORMANCE
OAF 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.
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OAF 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 staridards.
OAF represents that till 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 OAF 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 OAPs loyal and conscientious
exercise of judgment related to its performance under this Agreement.
OAF 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, OAF 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 OAF or any other persons from
representing themselves in any action or in any administrative or legal
proceeding.
11.9 CONTINGENCY FEE
OAF 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 OAF, to
solicit or secure this i~greement 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 OAF, any fee, commission, percentage,
gift, or other consideration contingent upon or resulting from the award or making
of this Agreement. Far 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 ar~d shall not be construed to be a modification of the terms
of this Agreement.
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11.11 COMPLIANCE WITH IAWS
" - OAF shall comply wii:h 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.
' 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 PREPARATIOPJ
Thee 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 understand'ung 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, sc-lely as a matter of judicial .construction, be construed more
.severely against one. o~f the parties than the other.
11..1:4 [Intentionally omitted]
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 Ibe 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 OAF EXPRESSLY WAIVE ANY RIGHTS
EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL. LITIGATION:
RELATED TO, OR ARJSING 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 Agreement and approved and executed, by
the City Commission (if over $25,000).or the City Manager (if less than $25,000)
and OAF.
. ~ 11.17 PRIOR AGREEMENTS
. This document incorporates and includes all prior negotiations, correspondence,
conversations, agreements; and understandings applicable to -the matters
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contained herein and the parties agree .that there ,are no .commitments,
agreements or understandings concerning the subject matter of this Agreement
thatare 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 oralteration 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) _
,.
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11:19 INSURANCE
OAF 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 m~ury, 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 OAF 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 IB±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, OAF shall
provide .Contract Administrator with a Certificate of .Insurance for each such
. policy. Should OAF fail to obtain, maintain or renew the policies of insurance
referred to above, in 1:he required amounts, the City may, at its sole discretion,
obtain such insurance, and any sums. expended by City. in obtaining said
insurance, shall be reF~aid by OAF to City, plus ten percent (10%) of the amount
of premiums paid' to compensate City for its administrative costs. If OAF fails to
.repay City's expenditures within #ifteen (15) days of demand; the- total sum owed
shall accrue interest ;~t the' rate of twelve percent (12%) until paid, and such
failure shall be deemed an event of default hereunder.
The City shall reimburse 4AF for all, insurance- expenses incurred from the
contingency fund outlined in Section 4.3. Said cost shall be a direct pass-
- through expense reimbursement, not to exceed the sum of Four Thousand
. Dollars ($4,000.00).
1`1.20 INDEMNIFICATION
OAF 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,
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which may arise or b~~ alleged to .have ,arisen from the negligent acts, errors,
omissions or other negligent conduct of OAF, its .employees, agents, sub-
- ~ . ~ consultants, or any other person or entity acting under OAPs control, in connection
with OAPs performance of the Work pursuant to this Agreement; and to that extent,
OAF 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 shalt 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 OAF for performance of the Work under this
.Agreement is the specific consideration from the City to OAF for OAPs Indemnity
Agreement.
.OAP'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 e~~ch agree to give the other party prompt notice of any claim
coming to its knowledge that.. in anyway directly or indirectly affects the other party.
The provisions of this Section 11.20 shall starvive the termination or earlier
expiration of this Agreement.
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
By /
. Mayor
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of ~~ , 2010
ATTEST:
Secretary
APPROVED AS TO
FORM & LANGUAGE
& F~1H EXCCUTION
torney~~ ate
OAF/OUTDOOR ARTS FOUNDATION
EXHIBIT A
OAF'S SCOPE OF SERVICES
ARTWORK/PROJECT: "Fiddler Crab"
PURPOSE: OAF will design fabricate, permit, transport, inspect, and install the above
original work of art (also referred to as Artwork or Project).
LOCATION OF SITE: Collins Park, 2100 Collins Ave., Miami Beach, Florida.
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. OAF shall maintain regular communication with the
Contract Administrator via phone, fax, letter or a-mail.
.DESIGN COLLABORATION: During the design of the Artwork, OAF shall coordinate its
.progress with the Contract Administrator. The design of the Artwork shall be
coordinated with the design process for the City's Collins Park Project in the following
areas: aesthetics, public presentations, construction documents, cost estimates and
Collins Park Project schedules. Should the design of the Artwork require specialized
professional services, OAF 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, OAF shall prepare all necessary construction
documents for fabrication 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. OAF 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 construction documents for the Collins Park Project.
CONSTRUCTION AND INSTALLATION COORDINATION: During the construction of
the Collins Park Project and the installation of the Artwork, OAF shall collaborate and
coordinate the Work with the Contract Administrator. OAF shall install the Artwork in
accordance with. the Collins Park Project construction documents and in compliance
with the Collins Park Project construction schedule. OAF shall be responsible for
construction oversight during the fabrication and integration of all OAF-designed
components, whether fabricated by OAPs subcontractors or included in construction
documents to be fabricated and installed by others.
DELIVERABLES: OAF shall provide the following deliverables:
I-A [Intentionally omitted]
I-B Conceptual Design.. OAF shall develop a conceptual design proposal for the
Project and shall secure the advisory recommendation of its approval by the
= - _ City's Art in Public Planes Committee (which is an advisory board of the City).
- - . - - 1. [Intentionally omitted]
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2. This phase includes a Site visit for presentation to the Art in Public Places
Committee and coordination with the Contract Administrator.
3. This phase includes a Site visit by OAF or OAPs 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.
The City acknowledges that Phase 1-B has been successfully
completed.
-C Design Development. OAF 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 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.
1. OAF shall subrnit final design drawings for fabrication, OAF proofs, and
Artwork support specifications for inclusion in the Collins Park Project
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, OAF shall be obligated to
redesign the Artwork to fit within the established budget, inclusive of all
.payments to OAF, at no additional charge to City.
3. OAF shall coordinate and participate in all product and material testing
related to the Artwork and determine final product and material with the
Contract Administrator subsequent to testing.
4. This phase includes Site visits for coordination and presentation purposes.
-D Fabrication and Insta0lation. OAF shall fabricate, deliver and install all Artwork
and Artwork support components, as per the approved construction drawings.
OAF 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,
OAF shall submit aIV photographic documentation and completed cataloging
forms including shop drawings, manufacturer specifications, and product cut-
. sheets, as applicable.. If OAF utilizes computer technology in the fabrication of
the Artwork, OAF shall submit electronic copies of any computer files that will
support on-going operations or future repairs and conservation of the Artwork.
OAF shall also submit replacement material(s) and/or parts, as applicable, and
as deemed necessar)~ by Contract Administrator, to be used for future repairs of
the Artwork (quantities to be determined by OAF and Contract Administrator).
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OAF to demonstrate any maintenance and replacement procedures of the
Artwork, as deemed necessary by the Contract Administrator.
-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 one (1)
year after final acceptance of the Project by Contract Administrator.
COMPLETION AND INSPECTION: Upon completion and installation of all designed
.and fabricated components, OAF shall be responsible for obtaining written final
approval from Contract Administrator. 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 acceptance shall be given by the Contract
Administrator.
PHOTOGRAPHIC DOCUMENTATION: [Intentionally omitted]
COMMUNITY INVOLVEMENT and EDUCATIONAL OUTREACH: [Intentionally
omitted]
TIMELINE FOR COMPLETION: OAF shall coordinate the progress of the Work with
the Contract Administrator.
PERMITS AND APPROVALS: OAF 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. OAF shall participate in meetings,
submissions, resubmissions and negotiations with such authorities. OAF shall respond
to comments by such authorities in a timely manner to adhere to Project Schedule.
OAF shall be responsible for formally transmitting and receiving permits to and from the
respective jurisdictional authorities. OAF shall coordinate permitting and approval
related issues with the Contract Administrator. The receipt of all necessary permits is a
condition precedent to the fabrication of the Work. The City agrees to pay for any
required permit fees. As of the effective date of this Agreement, it is anticipated that
the following governmental authorities may have jurisdiction over Project.
• City of Miami Beach Building Department
• City of Miami Beach Planning Department
• City ~of Miami Beach Public Works Department
• City of Miami Beach Historic Preservation Board
Notwithstanding the above, the City's failure to identify governmental authorities that
may have jurisdiction over the Project shall not relieve OAF 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 of the Project.
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EXHIBIT A-1
PROJECT SCHEDULE
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EXHIBIT B
COMPENSATION AND SCHEDULE OF PAYMENTS
City shall pay OAF the total sum of Seventy Nine Thousand, Five Hundred Dollars
($79,500) for the Work contemplated in this Agreement, which sum shall represent the
total compensation to. OAF for the Project. Except as provided in Section 11.19 of the
Agreement, no other amount shall be paid to OAF for reimbursable expenses.
OAF 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).
Payments to OAF shall be made for Work satisfactorily completed in accordance with
the following scheduler
Fifteen Thousand Dollars ($15,000) (which is approximately 20% of the fixed fee)
to be paid upon the signing of the contract and the development of the work plan
which will include atime-line and Scope of Work.
2. Two Thousand, Five Hundred Dollars (which is approximately 3% if the fixed fee)
to be paid upon approval of engineering drawings.
3. Fifteen Thousand Dollars ($15,000) (which is approximately 20% of the fixed fee)
to be paid upon permit approval.
4. Five Thousand Dollars ($5,000) (which is approximately 6% of the fixed fee)
upon completion of the steel sub-frame. Contract Administrator shall verify sub-
frame progress through photographs provided by OAF.
5. Five Thousand Dollars ($5,000) (which is approximately 6% of the fixed fee)
upon completion of the entire steel frame (prior to shipping to Miami Beach).
Contract Administrator shall verify frame completion through photographs
provided by OAF.
6. Five Thousand Dollars ($5,000) (which is approximately 6% of the fixed fee)
upon delivery and installation of the steel frame in Collins Park.
7. Fifteen Thousand Dollars ($15,000) which is approximately 18% of the fixed fee)
due upon completion of the pouring and sculpting of the concrete.
8. Nine Thousand Dollars ($9,000) (which is approximately 9% of the fixed fee)
upon purchase of tile. Contract Administrator shall verify the acquisition through
photographs provided by OAF. OAF shall be solely responsible for the the until it
is installed, grouted and sealed.
9. Eight Thousand Dollars ($8,000) (which is approximately 10% of the fixed fee) .
upon completion of the tile, grout and sealer for the sculpture.
-23-
Catalog #.
EXHIBIT C
City OF MIAMI BEACH
CATALOGING FORM
1. OAF 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:
Fax:
F. One paragraph biography of OAF:
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 OAF preference for
display (ex: sequential series, installation height, spacing, etc...):
G. Artwork with electronic components used:
-Name of item:
-24-
-Manufacturer info (address, telephone, fax, e-mail):
IV
-Supplier info (address, telephone, fax, e-mail):
H. OAPs statement:
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. Engineer/Engineer (name, address, telephone, fax, e-mail):
Installation
A. Installation executed by (name, address, phone, fax, a-mail, website):
B. Installation method (attach diagram of substructure, footings):
C. Date of Installation:
External Factors
A. Describe physical positioning of the Artwork:
B. Describe existing environmental factors which may affect the condition of
the Artwork:
C. If the work is site-specific, describe the relationship of the work to its site:
-25-
Vt. 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:
~/~a/r~
S~ignatu Date
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