Tobias Rehberger Agreement for So. Pointe Park Artwork .20i0' )75-G8
/ ithes
Agreement between
City of Miami Beach and Tobias Rehberger for
Commissioned Artwork at South Pointe Park
This Agreement made and entered into this s6 day of T , 2011, by and between the
CITY OF MIAMI BEACH, a municipal corporation existing under the laws of the State of Florida
(hereinafter referred to as City), and TOBIAS REHBERGER, an individual, whose principal address is
Holzgraben 11 bH, Frankfurt, Germany, 60313 (hereinafter referred to as Artist).
WHEREAS, the City wishes to engage 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 South Pointe Park, 1
Washington Avenue Miami Beach, Florida, 33139, as more specifically indicated in Artist's conceptual
design proposal, and which has previously been approved by the City (such location hereafter referred to
as the Site), at the agreed upon fees, and subject to all other terms and conditions, as set forth in this
Agreement; and
WHEREAS, Artist desires to contract with the City for performance of the aforestated services
relative to the Artwork, as hereinafter set forth.
NOW THEREFORE, City and Artist, in consideration of the mutual covenants and agreements
herein contained, agree as follows:
ARTICLE 1
DEFINITIONS AND IDENTIFICATIONS
The definitions and identifications set forth below are assumed to be true and correct and are
agreed upon by the parties.
1 1 Agreement (or Contract). This document, and other terms and conditions which may be included
in the exhibits and documents that are expressly incorporated by reference, as well as any
amendments thereto.
1.2 Artist. Tobias Rehberger, the individual selected to create the Artwork contemplated pursuant to
this Agreement.
1 3 Artwork. That certain unique and original work of art to be created by Artist and installed on the
Site, and to be known as "The Lighthouse" (working title), that has been approved by the City
Commission, and is further described in Exhibit "A" (entitled, "Artist's Scope of Services "),
attached hereto.
1 4 City. Shall mean the City of Miami Beach, Florida, a municipal corporation having its principal
offices at 1700 Convention Center Drive, Miami Beach, Florida, 33139
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, all day to day matters related to the Work and the Project,
except as otherwise provided herein.
1 9' [Intentionally omitted]
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1 10 Contract (Agreement) Amendment. Shall mean a written order to Artist, approved by the City
and signed by the City's duly authorized representative, authorizing a change in the Work, or the
method and manner of performance thereof or an adjustment in the fees and /or the completion
dates, as applicable. Contract Amendments shall be approved by the City Commission, if they
exceed twenty -five thousand dollars ($25,000.00) or the City Manager if they are twenty -five
thousand dollars ($25,000 00) or Tess (or other such amount as may be specified by the City of
Miami Beach Procurement Ordinance, as amended). Even for Contract Amendments of Tess
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. Artist's Scope of Services
Exhibit A -1 Project Schedule
Exhibit B: Compensation and Schedule of Payments
Exhibit C• Cataloging Form
Exhibit Cr Project Budget
1.13 Notice to Proceed. A written notice issued by the Contract Administrator to Artist authorizing the
commencement of the Work.
1.15 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 "The Lighthouse" (working title),
that has been approved by the City Commission, and is further described in Exhibit "A ", attached
hereto.
1.15 Project Budget. Shall mean an amount budgeted by the City for the Project, as specified in
Exhibit "A ", attached hereto.
1 16 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 17 Project Scope. Shall mean the description of the Project, as specified in Exhibit "A ", attached
hereto.
1 18 [Intentionally omitted]
1 19 Work. Any work and /or services required by Artist under this Agreement, as required to
successfully complete the Project (including, without limitation, work and /or services described in
Exhibit "A ")
ARTICLE 2
SCOPE OF SERVICES
2.1 Artist shall perform all Work identified in this Agreement and Exhibit "A" for the design, permitting,
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, and that any
such change and /or modification with respect to the Scope of Services (including, without
limitation, the time the Artist is obligated to commence and complete the Work, and the amount of
compensation the City is obligated or committed to pay the Artist), must be approved (if at all) by
the City Manager or the Mayor and City Commission, in their respective sole discretion, prior to
implementation of any change. Any such change or modification, if approved, shall be
memorialized in writing as a Contract Amendment.
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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, Artist shall furnish the Contract Administrator with documentation
showing the completed Artwork as follows:
a. Photographs shall include the following.
1. 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 hoto ra hs shall be of acceptable p g p p 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. Artist shall provide Contract Administrator with copies of electronic files, construction
documents, and as -built plans showing and /or accurately depicting the completed
Artwork.
d. Artist shall provide Contract Administrator with a detailed written schedule and
instructions for the routine care, maintenance, and preservation specific to the Project,
which shall be attached as Exhibit "C" ( "Cataloging Form ") hereto.
2.5 Artist shall be solely responsible for the quality and timely prosecution, completion and installation
of the Work and the Project. Artist shall be responsible for designing the Project so that it can be
fabricated and installed without exceeding the approved Project Budget.
2.6 Artist acknowledges and warrants to City that an essential element of this Agreement is the skill
and creativity of Artist, and that it is solely responsible for the quality of the Project. Artist may not
subcontract and /or assign portions of the Work to another party, without the prior written approval
of the Contract Administrator Notwithstanding the Contract Administrator's approval of any such
subcontract and /or assignment, Artist will still be held ultimately responsible for all portions of the
Work. Artist warrants to City that it shall be solely responsible for supervision of (and any
compensation to) any and all third parties, and that the City shall have no liability whatsoever,
whether financial or otherwise, with regard to same.
2.7 Artist agrees that all Work, and the completed Project, shall comply with all applicable Federal,
State, Miami -Dade County, and City laws, ordinances, codes and regulations. Artist shall be
solely responsible for obtaining any and all required approvals from all governmental authorities
that have jurisdiction over the Project, and for obtaining all applicable permits related to the
Project.
2.8 Artist shall not make any public information release in connection with the Project and /or the
Work without the prior written consent of the Contract Administrator.
2.9 Artist shall perform the Work in such manner and at such times so as not to cause interference
with any of the operations of the City.
2.10 Artist shall be solely responsible for conducting any and all inspections of the Site for purposes of
ascertaining the condition of same for the proper execution of the Work, and for completion and
installation of the Project. To the extent any such information is in the City's possession, Contract
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Administrator shall make available to Artist, without representation, any background materials and
information on matters affecting the Site.
2.11 When working on the Site, Artist shall promptly 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.
2.12 Artist shall bear any transportation and storage costs resulting from the fabrication, delivery,
storage, and installation of the Work and the Project.
2.13 Title to the Artwork shall pass to the City 1) following the Contract Administrator's inspection of
the Work; and 2) if the Work is approved, upon Contract Administrator's issuance of written final
acceptance of the complete installed Project. Upon demand from the City, Artist shall execute a
Bill of Sale within ten (10) days after approval, or such other document prepared by the City,
memorializing the transfer of title to 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 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, 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 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.
2.15 The responsibility of the Artist after final acceptance of the Project by the City is limited to the
warranties according to this Agreement; any terms pertaining to Artist which are therein expressly
intended to survive termination and /or expiration of this Agreement; and any acts of gross
negligence and intentional wrong doing by the Artist.
ARTICLE 3
TERM and TIME OF PERFORMANCE
3.1 The term of this Agreement shall begin on the date it is fully executed by both parties. Thereafter,
Artist shall diligently and continuously prosecute the Work l 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 Artist performance of its duties, obligations and
responsibilities, as required by this Agreement.
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3.3 The Contract Administrator may grant a reasonable extension; of time to Artist in the event that
there is an unreasonable 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 Artist's
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.
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ARTICLE 4
COMPENSATION
4 1 City agrees to pay Artist, in the manner specified in Section 4.4 and Exhibit "B" (Compensation
and Schedule of Payments) hereto, the amount of Four Hundred and Twenty Five Thousand
Dollars ($425,000.00), which amount shall be the total compensation to Artist for the Project.
4.2 City has included a 15% contingency fee, in the amount of Seventy Five Thousand Dollars
($75,000.00) (the Contingency) to provide for unforeseen costs. The Contingency, whether in
whole or in part, is to be used ONLY by the City, at its sole discretion; and is included ONLY for
the sole benefit of the City; provided, however, that any unused portion of the Contingency may
be paid to the Artist as additional 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.
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 Artist (but only for Work satisfactorily performed and accepted by the Contract
Administrator, within thirty (30) calendar days of receipt by the City of Artist's proper invoice.
Invoices shall be submitted by Artist to the City as follows:
Dennis Leyva, Contract Administrator
City of Miami Beach
TCD Office
1700 Convention Center Drive
Miami Beach, FL 33139
dleyva(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.
4 6 Payment shall be made to Artist at:
Tobias Rehberger
Holzgraben 11 bH
60313 Frankfurt,
Germany
ARTICLE 5
CHANGES IN SCOPE OF SERVICES
5 1 Any significant 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 Artist's compensation; or any other material changes in the
terms and conditions of the Agreement, must be approved in writing as an amendment to this
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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
ARTIST'S WARRANTIES
6.1 Artist warrants to the City that (a) the Project being commissioned is the original product of
Artist's own creative efforts; and (b) the Project is original, or in other words, an edition of one (1),
and shall in no way be duplicated, copied, and /or otherwise replicated by Artist with respect to
any future commissioned public or private projects.
6.2 Artist warrants to the City that reasonable maintenance of the Project will not require any
extraordinary procedures.
6.3 Artist warrants to the City that it shall deliver the Project to the City free and clear of any liens
from any source whatsoever
6.4 Artist 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 Artist, upon reasonable request, but without warranty or representation by City of any
kind, any background materials and information on matters affecting the Site.
b. provide Artist the Project Budget;
c. arrange for access so that Artist may enter upon the Site, during customary business hours,
for Artist to perform the Work;
d. give prompt written notice to Artist whenever the City becomes aware of any development
that affects the scope or timing of the Work;
e. arrange public meetings and consultations, as deemed necessary by the City Manager;
f review submitted materials in a reasonably timely manner;
g. prepare and install, at its expense, a plaque or sign identifying Artist, the title of the Project,
materials used, year of completion, and a narrative explanation of the Project, and
reasonably maintain same in good repair; and
h. reasonably assure that the Project is properly maintained, taking into account the
recommendations of Artist, as set forth in Exhibit "C"
ARTICLE 8
ARTISTS RIGHTS
8 1 The 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 would reflect unfavorably on Artist's
name or reputation, or which could violate the spirit of the Project or interfere with its creative
intent.
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8.2 The work is site specific and may not be moved to a different location without the Artist written
consent. 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 written
notice to Artist, by registered mail, at the address provided under the Notices section of this
Agreement. In that event, City shall offer Artist the option of removing the Artwork from the Site,
provided that Artist will move and /or transport the Artwork from the Site at its sole cost and
expense; 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 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 shall have no further liability to as to the Artwork, and Artist 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-
transferable and only apply to Artist, and shall not apply or be enforceable by any assignees,
transferees, and / or any other successors in interest of Artist.
8.3 The City agrees to take such reasonable measures, as it deems necessary, in its reasonable
discretion, to maintain the Artwork. City shall have the right to determine, after consultation with a
professional conservator, when (and if) repairs and restorations to the Artwork will be made. The
City shall attempt to notify Artist in the same manner as provided in Section 8.2 hereof and, in the
event the City has made reasonable efforts, without success, to notify Artist of its intended action,
City shall have no further liability to Artist, and Artist shall be deemed to have waived any and all
claims that it may have against City, as a result of such repairs or restoration to the Artwork, or in
the event of any resulting damage or destruction of the Artwork. To the extent practical, the City
may, in its sole discretion, consider Artist in making or personally supervising significant repairs or
restorations. If City deems Artist's participation is necessary, Artist shall be paid a reasonable fee
for any such services, provided that City and Artist shall agree, in writing, prior to the
commencement of any significant repairs or restorations, upon said fee. All repairs and
restorations shall be made in accordance with recognized principles of conservation.
ARTICLE 9
COPYRIGHTS
9 1 INTELLECTUAL PROPERTY. All copyrights, trademarks, service marks, logos and other images
related to the Artwork (if any), and any right to commercially exploit the same (all of the foregoing,
collectively and individually, the "Intellectual Property") shall be the exclusive property of Artist.
Artist may apply to register any mark or copyright which depicts, is derived from, represents,
duplicates, or is related to Artist the Artwork.
9.2 LICENSE. Notwithstanding Section 9 1 or any other term or condition of this Agreement, Artist
hereby grants to City a non - 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 (including, without limitation, any proposals for the Artwork)
for such purposes as determined 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 limitation, 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 separate
agreement with the Artist. In connection with any such reproduction and publication by a third party,
that party shall be solely responsible for arranging any consent and /or credit with Artist, and the City
shall have no liability to Artist and /or to third parties as a result of any failure by third parties to
obtain authorization by Artist, or give credit to Artist, for such third party uses.
9 3 Artist agrees that all Work shall comply with all applicable patent, trademark and copyright laws,
rules, regulations and codes. Artist further agrees that it will not knowingly use any third party's
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patent, trademark or copyright unless Artist has obtained proper permission and all releases, and
other necessary documents. If Artist uses any protected material, process or procedure, Artist shall
disclose such patent, trademark or copyright in the 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 by a third party, City shall make all reasonable efforts
to notify Artist at the address provided in the Notices section of this Agreement. Either City or Artist
may bring infringement actions against 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 reasonably cooperate with each other to prosecute any such action
including, without prejudice to the generality of this requirement, consenting to be a party to the
proceedings.
ARTICLE 10
TERMINATION
10.1 This Agreement may be terminated for cause by either party, upon thirty (30) days ,prior written
notice to the other party
10.2 Termination of this Agreement for "cause" shall include (i) Artist's 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; (ii) a breach of the provisions of this Agreement by either
party (notwithstanding whether any such breach was previously waived or cured); or (iii) for any
other reason, as the City deems 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 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. Notwithstanding the
above, Artist shall not be relieved of liability to the City for damages sustained by the City by any
breach of the Agreement by Artist. The City, at its sole option and discretion, shall be additionally
entitled to bring any and all legal /equitable actions as it may deem necessary to enforce the City's
rights and remedies against Artist. The City shall be entitled to recover all costs of such actions,
including reasonable attorney's fees.
ARTICLE 11
MISCELLANEOUS
11 1 AUDIT RIGHT AND RETENTION OF RECORDS
City shall have the right to audit the books, records, and accounts of Artist as they relate to the
Project. Artist shall keep such books, records, and accounts as may be necessary in order to
record complete and correct entries related to the Project.
Artist shall preserve and make available, during customary business hours, for examination and
audit by the City Mayor and /or his authorized representatives, all financial records, supporting
documents, statistical records, and any other documents pertinent to this 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 of this Agreement, whichever is
longer If any audit has been initiated and audit findings have not been resolved at the end of the
retention period or three (3) years, whichever is longer, the books, records, and accounts shall be
retained until resolution of the audit findings.
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11.2 NONDISCRIMINATION, EQUAL EMPLOYMENT OPPORTUNITY, and AMERICANS WITH
DISABILITIES ACT
Artist shall not unlawfully discriminate against any person in its operations and activities or in its
use or expenditure of funds in fulfilling its obligations under this Agreement. Artist shall
affirmatively comply with all applicable provisions of the Americans with Disabilities Act (ADA) in
the course of providing any services funded by City, including Titles I and II of the ADA (regarding
nondiscrimination on the basis of disability), and all applicable regulations, guidelines, and
standards.
Artist's decisions regarding the delivery of services and work under this Agreement shall be made
without regard to or consideration of race, age, religion, color, gender, sexual orientation, national
origin, marital status, physical or mental disability, political affiliation, or any other factor which
cannot be lawfully used as a basis for service delivery
11 3 PUBLIC ENTITY CRIMES ACT
Artist represents that the execution of this Agreement will not violate the Public Entity Crimes Act
(Fla. Stat. §287 133), which essentially provides that a person or affiliate who is a contractor,
consultant or other provider and who has been placed on the convicted vendor list following a
conviction for a Public Entity Crime may not submit a bid on a contract to provide any goods or
services to City, may not submit a bid on a contract with City for the construction or repair of a
public building or public work, may not submit bids on leases of real property to City, may not be
awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract
with City, and may not transact any business with City in excess of the threshold amount provided
in Section 287.017, Florida Statutes, for category two purchases for a period of 36 months from
the date of being placed on the convicted vendor list. Violation of this section shall result in
termination of this Agreement and recovery of all monies paid hereto, and may result in
debarment from City's competitive procurement activities.
In addition to the foregoing, Artist further represents that there has been no determination, based
on an audit, that it committed an act defined by Section 287.133, Florida Statutes, as a public
entity crime and that it has not been formally charged with committing an act defined as a public
entity crime regardless of the amount of money involved or whether Artist has been placed on the
convicted vendor list.
11 4 INDEPENDENT CONTRACTOR
Artist is an independent contractor under this Agreement. In providing such services, neither
Artist nor its agents shall act as officers, employees, or agents of the City This Agreement shall
not constitute or make the parties a partnership or joint venture, nor does this Agreement
constitute a work for hire arrangement or agreement.
11 5 THIRD PARTY BENEFICIARIES
Neither Artist nor City intends to directly or substantially benefit a third party by this Agreement.
Therefore, the parties agree that there are no third party beneficiaries to this Agreement and that
no third party shall be entitled to assert a claim against either of them based upon this
Agreement. The parties expressly acknowledge that it is not their intent to create any rights or
obligations in any third person or entity under this Agreement.
116 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
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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: Dennis Leyva, Contract Administrator
Tel: 305 -604 -2477
DennisLeyva @miamibeachfl.gov
FOR Artist:
Tobias Rehberger
Holzgraben 11 bH
Frankfurt, Germany 60313
Tel: +496962700275
info @tobiasrehberger de
11.7 ASSIGNMENT AND PERFORMANCE
Artist shall not assign, transfer, or encumber all or any portion of this Agreement without the prior
written consent of the City, which consent, if given at all, shall be at such party's sole discretion.
Artist shall perform its duties, obligations, services, and work under this Agreement in a skillful
and respectable manner. The quality of the Work shall be comparable to the best national and
international standards.
Artist represents that all persons providing any work or services required by this Agreement have
the knowledge and skills, either by training, experience, education, or a combination thereof, to
adequately and competently perform the duties related to the particular services and work
contemplated in the Scope of Services.
118 CONFLICTS
Neither Artist nor its employees and /or sub - contractors shall have or hold any continuing or
frequently recurring employment or contractual relationship that is substantially antagonistic or
incompatible with Artist loyal and conscientious exercise of judgment related to its performance
under this Agreement.
Artist agrees that none of its employees and /or sub - contractors shall, during the term of this
Agreement, serve as an expert witness against City in any legal or administrative proceeding in
which he or she is not a party, unless compelled by court process. Further, Artist agrees that
such persons shall not give sworn testimony or issue a report or writing, as an expression of his
or her expert opinion, which is adverse or prejudicial to the interests of City in connection with any
such pending or threatened legal or administrative proceeding. 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
11 9 CONTINGENCY FEE
Artist warrants that it has not employed or retained any company or person, other than a bona
fide employee and /or sub - contractor working solely for Artist, to solicit or secure this Agreement
and that it has not paid or agreed to pay any person, company, corporation, individual or firm,
other than a bona fide employee and /or sub - contractor working solely for Artist, any fee,
commission, percentage, gift, or other consideration contingent upon or resulting from the award
or making of this Agreement. For a breach or violation of this provision, the City shall have the
right to terminate this Agreement without liability, at its discretion, or to deduct from the
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Agreement price or otherwise recover the full amount of such fee, commission, percentage, gift or
consideration.
11.10 WAIVER OF BREACH
A party's failure to enforce any provision of this Agreement shall not be deemed a waiver of such
provision or modification of this Agreement. A party's waiver of any breach of a provision of this
Agreement shall not be deemed a waiver of any subsequent breach and shall not be construed to
be a modification of the terms of this Agreement.
11 11 COMPLIANCE WITH LAWS
Artist shall comply with all Federal, State, and local (County and City) laws, codes, ordinances,
rules, and regulations in performing his duties, responsibilities, and obligations related to this
Agreement.
1112 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 GOVERNING LAW AND EXCLUSIVE VENUE
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Florida, both substantive and remedial, without regard to principles of conflict of laws. The
exclusive venue for any litigation arising out of this Agreement shall be Miami -Dade County,
Florida, if in state court, and the U S. District Court, Southern District of Florida, if in federal court.
BY ENTERING INTO THIS AGREEMENT, CITY AND ARTIST EXPRESSLY WAIVE ANY
RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION
RELATED TO, OR ARISING OUT OF, THIS AGREEMENT
1116 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 Tess than $25,000) and Artist.
11.17 PRIOR AGREEMENTS
This document incorporates and includes all prior negotiations, correspondence, conversations,
agreements, and understandings applicable to the matters contained herein and the parties agree
that there are no commitments, agreements or understandings concerning the subject matter of
this Agreement that are not contained in this document. Accordingly, the parties agree that no
deviation from the terms hereof shall be predicated upon any prior representations or
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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. [Intentionally omitted]
c. Automobile insurance is required in the amount of Three Hundred Thousand ($300,000)
dollars if Artist will be parking vehicles on public property, which is not a designated
public parking space, to unload materials /supplies.
The City of Miami Beach must be named as an additional insured and policyholder on all
insurance certificates issued. All insurance policies must be issued by companies that are
authorized to do business in the State of Florida, and have a rating of B +VI or better in the current
edition of Best's Key Rating Guide.
The policies of insurance referred to above shall not be subject to cancellation or changing
coverage except upon at least thirty (30) days prior written notice to the City, and then only
subject to the prior written approval of the City's Risk Manager. Prior to 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 Artist, its employees, agents, sub - consultants, or any
other person or entity acting under Artists control, in connection with Artists performance of the
Work pursuant to this Agreement; and to that extent, Artist shall pay all such claims and losses and
shall pay all such costs and judgments which may issue from any lawsuit arising from such claims
and losses, and shall pay all costs and attorneys' fees expended by the City in the defense of such
claims and losses, including appeals. The parties agree that one percent (1 %) of the total
compensation to Artist for performance of the Work under this Agreement is the specific
consideration from the City to Artist for Artist's Indemnity Agreement.
Artist's obligation under this Subsection shall not include the obligation to indemnify the City of Miami
Beach and its officers, employees and agents, from and against any actions or claims which arise or
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are alleged to have arisen from the gross negligence or willful misconduct of the City or its officers,
employees and agents. The parties each agree to give the other party prompt notice of any claim
coming to its knowledge that in any way directly or indirectly affects the other party.
The provisions of this Section 11.20 shall survive the termination or earlier expiration of this
Agreement
IN WITNESS WHEREOF, the parties have made and executed this Agreement on the respective dates,
as executed below by their respective duly authorized officials..
City /City of Miami Beach, Florida Artist/T.: _ -. - eft= ger
By 111,4 • I , � 1 J r By /
May. Tobias Rehb- rger
) fN
_A) day of .1G( L_4 f (> , 2011 day of y , 2011
AT EST' / fa,citti, Wit e s : — ,,--e
City Clerk Sign ure
, �•�� \ P A 1 4 , ,4, _ Print Name 3c-i-kr iv
•.. N,
,
' • Signature co
I NC oRp .
' RA *1 Print Name
S 9\ /
.44 01 /„
-Atenzwa • '
I
_ a r o , APPROVED AS TO
FORM & LANGUAGE
& Fr)A EXECUTION
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EXHIBIT A
ARTIST'S SCOPE OF SERVICES
ARTWORK/PROJECT: "Lighthouse" (working title)
PURPOSE: Artist will design fabricate, permit, transport, inspect, and install the above original work of art
(also referred to as Artwork or Project).
LOCATION OF SITE: South Pointe Park, 1 Washington 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.
Artist shall maintain regular communication with the Contract Administrator via phone, letter or e-mail.
DESIGN COLLABORATION: During the design of the Artwork, Artist shall coordinate its progress with
the Contract Administrator Should the design of the Artwork require specialized professional services,
Artist shall hire an appropriate sub - consultant and /or sub - contractor, subject to the prior written approval
of the Contract Administrator. Upon approval of the Artwork design, Artist shall prepare all necessary
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.
CONSTRUCTION AND INSTALLATION COORDINATION: During the construction and installation of
the Artwork, Artist shall collaborate and coordinate the Work with the Contract Administrator. 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: Artist shall provide the following deliverables:
I -A [Intentionally omitted]
I -B Conceptual Design. Artist 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 Places Committee
(which is an advisory board of the City).
1. [Intentionally omitted]
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 Artist or Artist's representative for presentation to the
City's Design Review 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.
I -C Design Development. 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 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. Artist shall submit final design drawings for fabrication, Artist proofs, verified cost
estimate, sub - contractor list, permits and approvals, and a fabrication and installation
schedule.
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2. If the verified cost exceeds the Project Budget, Artist will be responsible for those
additional costs, inclusive of all payments to Artist, at no additional charge to City
3. Artist 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.
I -D Fabrication and Installation. Artist shall fabricate, 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, Artist shall
submit all photographic documentation and completed cataloging forms including shop drawings,
manufacturer specifications, and product cut - sheets, as applicable. If Artist utilizes computer
technology in the fabrication of the Artwork, Artist shall submit electronic copies of any computer
files that will support on -going operations or future repairs and conservation of the Artwork. Artist
shall also submit replacement material(s) and /or parts, as applicable, and as deemed necessary
by 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.
I -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, Artist 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: 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: The Artist shall participate in at least
one community meeting and two other public meetings, as shall be determined by the Contract
Administrator The date of the community meeting shall be coordinated with the Artist schedule.
TIMELINE FOR COMPLETION: Artist shall coordinate the progress of the Work with the Contract
Administrator
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. Artist, his assistants or assigned subcontractors shall participate in meetings, submissions,
resubmissions and negotiations with such authorities. 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. Artist 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. As of the effective date of this
Agreement, it is anticipated that the following governmental authorities may have jurisdiction over Project.
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City of Miami Beach Building Department
City of Miami Beach Planning Department
City of Miami Beach Public Works Department
City of Miami Beach Design Review Board
Notwithstanding the above, the City's failure to identify governmental authorities that may have
jurisdiction over the Project shall not relieve Artist from the responsibility to procure all requisite 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.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
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EXHIBIT A -1
PROJECT SCHEDULE
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EXHIBIT B
COMPENSATION AND SCHEDULE OF PAYMENTS
City shall pay Tobias Rehberger the total sum of Five Hundred Thousand Dollars ($500,000) for the
Work contemplated in this Agreement, which sum shall represent the total compensation to Tobias
Rehberger No other amount shall be paid to Artist (including for reimbursable expenses)
Artist will be paid in accordance with the foregoing specified installments, upon submission of satisfactory
invoices and documentation substantiating satisfactory completion of the portion of the Work for which
payment is requested, and upon Contract Administrator's acceptance of said portion of the Work (as
applicable).
Payments to Artist shall be made for Work satisfactorily completed in accordance with the following
schedule:
1 One Hundred Thousand Dollars ($100,000) (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 a
time -line and Scope of Work
2. One Hundred Thousand Dollars ($100,000) (which is approximately 20% if the fixed fee) to be
paid upon submission of geo- technical survey of Site, all design development including pre -
engineering and permitting (design development), testing of materials, engineering drawings,
electrical drawings for installation of LED lights, as further provided in the Scope of Work, and
permit approval.
3. One Hundred Thousand Dollars ($100,000) (which is approximately 20% of the fixed fee) for
purchase of all materials, Artist will provide copies of signed contracts with all fabricators.
4 One Hundred Thousand ($100,000) (which is approximately 20% of the fixed fee) be paid for Site
visit, Site preparation, shipping materials to Site, and installation of artwork. At Contract
Administrator's and Project Coordinator's sole option, they may deem that a physical inspection
of the artwork is warranted prior to payment
5. Twenty Five Thousand ($25,000) (which is approximately 5% of the fixed fee) to be paid upon
submission of Photo Documentation as outlined in Section 2.4 and Exhibit "C" "Cataloging Form"
of this Agreement.
6. Seventy Five Thousand ($75,000) (which is approximately 15% of the fixed fee) is the
contingency fee (the Contingency) the City has included, to provide for unforeseen costs. The
Contingency, in whole or in part, is to be used ONLY by the City, at its sole discretion, is included
ONLY for the sole benefit of the City; provided however, that if the City does not use Contingency
in whole or in part, the remaining unused portion may be paid to the Artist as additional
compensation.
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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, e-mail, web site:
E. Contact Phone numbers
Business:
Home:
Fax:
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, e-mail, web site)
E. Fabrication method (attach diagrams or drawings):
F Engineer /Engineer (name, address, telephone, fax, e- mail).
IV Installation
A. Installation executed by (name, address, phone, fax, e-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. If 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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EXHIBIT D
PROJECT BUDGET
Line Item Amount
Geotechnical Analysis $2,500
Design, Engineering & Sealed Plans $50,000
Insurance $2,500
Permits $4,000
Construction Supervision $22,000
General Conditions, Temporary Utilities & Fencing $5,000
Steel Reinforced Foundation $13,000
Auger Cast Piles $12,000
Reinforced Concrete Slab $7,000
Fabrication & Installation $250,000
Painting Accent Panels $15,000
Frosted Plexiglas Lantern $10,000
Electrical & LED Lighting $13,000
Lightning Protection $3,000
Site Restoration $7,000
Photo Documentation $1,000
Legal Fees $2,000
Travel $10,000
Contingency Fee $75,000
TOTAL $500,000
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