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Arrangement between CMB and County RE: Art in Public Places for the Convention Center cvlyeUSI, — .4111i.. Imo amismana. 4755•'..VS �� BEACH S' a; � ,� 6 y City of Miami Beach, 1700 Convention Center Drive,Miami Beach,Florida 33139,www.miamibeachfl.gov Office of the City Manager Tel:305-673-7010,Fax:305-673-7782 TRANSMITTAL TO: Rafael Granado SENT VIA: On Hand City Clerk FROM: Thais Vieira, Sr. Project Manager Office of the City Manager M 9 DATE: May 1, 2015 SUBJECT: Convention Center Renovation & Expansion SENDING: ❑ Under Separate Cover ❑ Prints © Herewith ❑ Copy of Letter ❑ Change Order ❑ Meeting Notes ❑ Other DESCRIPTION: One (1) fully executed original of the Agreement between the City of Miami Beach and Miami-Dade County, for services related to the administration of the Project's AIPP Program. This is in reference to Resolution No. 2014-28883 (attached). RECEIVED BY: SENT BY: Thais Vieira COPIES OF THIS LETTER TO: Maria Hernandez, Project Director—Convention Center District Dennis Leyva, Art in Public Places Coordinator COPIES WITH ENCLOSURES TO: FILE We are committed to providing excellent public service and safety to all who live, work, and play in our vibrant, tropical, historic community. f " 2ofL— zisg 3 MIAMIBEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139,www.miamibeachfl.gov March 25, 2015 Mr. Michael Spring Senior Advisor, Miami-Dade County Office of the Mayor Director, Miami-Dade County Department of Cultural Affairs 111 N.W. 1st Street, Suite 625 Miami, Florida 33128-1994 Dear Michael: This document shall serve to memorialize the arrangements between the Miami-Dade Art in Public Places Trust through its Department of Cultural Affairs ("County") and the City of Miami Beach Art in Public Places ("City") with respect to the County's provision of administrative services for the City's Art In Public Places program ("AIPP") for the Miami Beach Convention Center Renovation and Expansion Project ("MBCC Project" or"Project"). On October 22, 2014, the County submitted its proposal to provide AIPP administrative services, along with an estimated budget and tentative timeline, attached hereto as Exhibit A (collectively, the "County AIPP Services"). The proposal included, among other things, administrative fees to the County in the amount not-to-exceed ten percent (10%) of the final AIPP allocation for the MBCC Project. On December 18, 2014, the City Commission adopted Resolution No. 2014-28883, accepting the terms of the County's proposal and directing the Administration to draft an appropriate agreement based on the approved terms set forth in the County's proposal. This letter confirms the County's agreement to provide the County AIPP Services in accordance with the terms set forth in Exhibit A, and further clarifies the parties' roles and obligations, as follows: 1. City Approvals. At all times, the City shall be solely responsible for determining all substantive matters regarding the City's AIPP at its sole discretion, including, without limitation, the final AIPP funding allocation and its imposition relative to the MBCC Project; areas/locations for the placement or installation of all works of art commissioned for the MBCC Project (the "Works"); the final budget for each Work; the selection of short-listed artists; the final selection of all commissioned artists ("Artists") and alternates; and the timeline for implementation of the Works. (i) The City's AIPP Professional Advisory Committee for the Project ("PAC") and AIPP Committee shall be responsible for determining the shortlisted artists invited to participate in the artist selection process. The City Commission shall approve the final selection of Artists and alternates, after considering the recommendations of the City's PAC and AIPP Committee. We are committed to providing excellent public service and safety to all who live, work, and play in our vibrant, tropical, historic community. (ii) The City shall determine the final AIPP budget for the MBCC Project and final budget for each Work. In performing the County AIPP Services, the County shall not enter into any contract or incur any expense except on the advance written approval of the City's AIPP Coordinator or other appropriate City representative. 2. Ownership of the Works. Ownership of and title to all Works acquired for the City shall vest in the name of the City of Miami Beach, Florida. 3. Proposal Development Services Agreements. Once the PAC and AIPP short-list the artists who will be invited to develop proposals, County shall make all arrangements with the short-listed artists and shall be responsible for entering into the Proposal Development Services Agreements with Artists. 4. Final Professional Artist Services Agreements with Commissioned Artists. The City shall be the party directly entering into the contracts with the Artists, to permit the City to ensure: i. that the Artist's obligation to conceive, research, fabricate or produce, transport, and install the Work meets the City's requirements or specifications; ii. that the fees payable to the Artist are inclusive of all expenses associated with each Work, including but not limited to Artist travel, materials, labor, transportation, and installation of the Work, and all ancillary matters relating thereto; iii. that the final mock-ups for the Works are subject to the approval of the City, and that Artist agrees to collaborate with the City with regard to any requested revisions thereto, including any changes that may need to be made to accommodate site-specific or construction-related concerns; iv. that the Artist shall provide drawings or other information that may be necessary for the City and its contractors to incorporate the Work into the MBCC Project; v. that the Artist or Artist's representative shall participate in the installation of the Work in coordination with the City and its contractors, and shall remain responsible for taking any corrective action that the City may require to complete the installation as contemplated by the parties, including correction of faults and defects in the Work; vi. that the City shall not separately insure the Work or have any maintenance obligations specific to the Work, and that any conservation efforts in the event of damage or loss shall be at the City's sole discretion and subject to the availability of funding; vii. that the City may remove, loan, sell or otherwise dispose of the Work at any time, at its sole discretion; viii. that the Artist represents and warrants that the Work is original and does not infringe on or violate any copyright or other proprietary right of any third party or contain material which is defamatory or an invasion of privacy or otherwise unlawful; ix. that the Artist will not reproduce the Work, which is intended to be a unique edition of one, in any scale without City's approval, and that the Artist grants to the City a worldwide, perpetual, irrevocable license to use the Work or any portion thereof, on a royalty-free basis, with the right to reproduce, distribute, exhibit, publish, and display, We are committed to providing excellent public service and safety to all who live, work, and play in our vibrant, tropical, historic community. transmit, and broadcast the Work for non-commercial purposes, including but not limited to promotion of the City and its Convention Center in any and all media presently existing or invented in the future throughout the universe and in all fields of endeavor; and x. that the use of the Work by the Artist or others in printed matter or otherwise shall at all times include a credit line in accordance with the City's Art in Public Places guidelines. xi. County to Manage All Contracts. Notwithstanding the City's direct privity of contract with the Artists, the County shall provide the County AIPP Services and assist with negotiations and all other aspects of AIPP administration (including payment per agreement terms), in the same manner as the County otherwise provides for its AIPP projects. 5. Records. All records with respect to the County AIPP Services shall be maintained in Miami-Dade County and, upon reasonable notice shall be made available to representatives of the City upon reasonable request. The County will maintain adequate records to justify all expenses and costs to be reimbursed or paid by the City, including but not limited to expenditures associated with the selection process, proposal agreements, and final agreements with commissioned artists. 6. Schedule of Payments. The County's administrative fees referenced in Exhibit A as "MDC APP Admin Fee" or "MDC APP Administrative Costs" are estimated figures that are subject to change, based on the City Commission's final approved funding allocation for the MBCC Project. Once the total AIPP funding allocation is determined, the proposed payment schedule for the County's administrative fees (and other expenses) through the Project Close Out Phase shall be adjusted proportionately, to reflect total administrative fees to the County in the amount not-to-exceed ten percent (10%) of the City Commission's approved final AIPP funding allocation for the MBCC Project. If City provides County with direction to adjust or temporarily suspend the schedule to correspond with the City's timeline for procurement and administration of construction activity, the schedule of payments may be adjusted accordingly. 7. Relationship of the Parties. The parties agree that the County and the City are independent entities solely responsible for their acts or omissions. County's status hereunder is that of an independent contractor. Neither party, or their respective officers, elected or appointed officials, employees, agents, independent contractors or consultants, shall be considered employees or agents of the other party, nor to have been authorized to incur any expense on behalf of any other party except on the advance written approval of the other party, nor to act for or to bind each other, except on the advance written approval of the other party. 8. Assignment: The County may not assign all or any portion of this letter agreement without the prior written consent of the City. 9. Compliance with Laws: Each party agrees to abide by and be governed by all applicable laws necessary for the development and completion of the County AIPP Services and the Project, including but not limited to the County's Art in Public Places Trust guidelines. We ate committed to providing excellent public service and safety to all who live, work, and play in our vibrant, tropical, historic community. 10. Liability: The parties to this Agreement shall not be deemed to assume any liability for the negligent or wrongful acts, or omissions of the other party. Nothing contained herein shall be construed as a waiver, by either party, of the liability limits established in Section 768.28 of the Florida Statutes. 11. Governing Law/Venue. This letter agreement shall be governed by and construed in accordance with the laws of the State of Florida. The County and the City agree to submit to service of process and jurisdiction of the State of Florida for any controversy or claim arising out of or relating to this Agreement or a breach of this Agreement. Venue for any court action between the parties for any such controversy arising from or related to this Agreement shall be in the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, or in the United States District Court for the Southern District of Florida, in Miami-Dade County, Florida. 12. Termination. This agreement may be terminated by either party for its convenience upon ninety (90) days advance written notice thereof. In the event of termination, City shall pay or reimburse County for all previously approved expenses, along with the pro rata portion of its administrative fee through the effective date of termination. 13. Notices. Any notices to be made hereunder shall be made in writing and shall be sent by hand delivery, facsimile with confirmation receipt, overnight courier or certified United States mail, return receipt requested, with postage prepaid. Each party may, by notice to the other party as provided herein, change the address to which notices or payments thereafter shall be sent: Notices to City shall be sent to: Dennis Leyva Art In Public Places Coordinator City of Miami Beach 1755 Meridian Avenue, Suite 500, Miami Beach, FL 33139 Notices to County shall be sent to: Michael Spring, Director Miami-Dade County Department of Cultural Affairs 111 N.W. 1st Street, Suite 625 Miami, Florida 33128-1994 14. Non-waiver. The failure of either party hereto to insist in any instance upon the strict performance of any provision of this Agreement or to exercise any election contained herein shall not be construed as a waiver or relinquishment for the future of such provision or election. No waiver or modification by any party shall have been deemed to have been made unless expressed in writing by such party. 15. Force Majeure. If either party is unable to perform any obligation hereunder by reason of any event beyond such party's reasonable control, including but not limited to fire, flood, epidemic, earthquake, explosion, act of God or public enemy, riot or civil disturbance, strike, lockout or labor dispute, war (declared or undeclared), terrorist threat or activity, or any federal, state, or local law, order, or regulation, order of any court or jurisdiction, or other cause not reasonably within either party's control (each a "Force Majeure" event or We are committed to providing excellent public service and safely to all who live, woik, and play in our vibrant, tropical, historic community. n ,J occurrence), such party shall be excused from performance until such time as the Force Majeure occurrence has passed. This letter supersedes all prior negotiations, understandings and agreements between the parties hereto and constitutes the final and complete understanding of the parties regarding the subject matter hereof, and both parties acknowledge and agree that neither party has relied on any representations or promises in connection with this letter agreement not contained herein. This letter agreement may not be amended or modified except by a subsequent written instrument evidencing the express consent of each of the parties, duly executed by the parties. We look forward to working collaboratively with the Miami-Dade Art in Public Places Trust and its designated staff in implementing the complex and challenging public art program envisioned for new Miami Beach Convention Center. Sincerely, Philip Levi City of Mi. '. Enclo , e Acknowledged: taw- Michael Spr' g, D ector Miami-Dad• County 11-- :_ ■ ii-• % Cultural Affairs APPROVED AS TO FORM & LANGUAGE &FOR EXECUTION •� 3' City Attorney Date We are committed to providing excellent public service and safety to all who live, work,and play in our vibrant, tropical, historic community. Miami-Dade Department of Cultural Affairs EXHIBIT A Miami Beach Convention Center Project Art in Public Places Program April 2015 MDC-APP Budget Allocation Worksheet for the Miami Beach Convention Center Projected Contribution to AiPP: $ 6,250,000 Working Figure Proposed Breakdown of APP Funds %of Total Amounts Monthly MDC APP Administrative Costs 10.0% $ 625,000 $ 14,881 Over 42 month CMB AiPP Maintenance Fund 15,0', $ 937,500 period Allocation for Artwork Projects 75.0% $ 4,687,500 Starting Nov'14 100% $ 6,250,000 Preliminary Art Expenses Artist Selection Process Costs(20 artists x$6,000 avrg fee)** $ 120,000 1.92% Professional Advisory Committee Expenses $ 5,000 0.1% Call to Artist(CAFE Online System) $ 2,500 0.04% Total of Preliminary Art Expenses $ 127,500 2.04% **Assumes an International Call to Artist which requires Proposal Honorariums to cover the basic travel expenses for each artist to attend the two(2)required initial meetings including Project Orientation and Proposal Presentation. Artwork Commissioning Fund Allocation for Artwork Projects $ 4,687,500 75% Less Preliminary Expenses S '27,500 3% !� As a%o f Internal Artwork Contingency $ 234.375 5% Total Artwork $$Available for Final Commissioning $ 4,325,625 — Allocation No. Recommended Budget per Opportunity Line Budget %of Total 1 Monumental Exterior Work at the Park $ 1,297,688 30.0% 2 South Concourse Artglass $ 994,894 23.0% Revised by 3 East Entry Lobby Artwork Relocation(5) $ 86,513 2.0% Project Team as of 10/23/14 4 North Ballroom Lobby Wall&Floor $ 1,297,688 30.0% 5 VIP Ballroom Exterior Walkway $ 648,844 15.0% $ 4,325,625 100% MDC APP Proposed Payment Schedule MDC APP Admin Fee $ 625,000 Preliminary Art Expenses(Selection) $ 127,500 Total Disbursement $ 752,500 Pmt Milestones Pmts 1 Artist Selection Process(Nov'14-Oct'15) $ 252,500 Preliminary Art Expenses+20%of Fee 2 Phase I Implementation(Nov'15-March'16) $ 62,500 10%of Fee 3 Phase I Implementation April'16-Nov'16) $ 93,750 15%of Fee 4 Phase II Implementation(Dec'16-April'17) $ 93,750 15%of Fee 5 Phase II Implementation(May'17-Jan'18) $ 125,000 20%of Fee 6 Phase Ill Implementation(Feb'18-Sept'18) $ 93,750 15%of Fee 7 Project Close Out Phase(Oct'18-Jan'19) $ 31,250 5%of Fee $ 752,500 1 Page 1 of 1 t5 Lc" O O O N Cl C1 a) Q c a) (1) U a) c o E c c o a) U c > - o o a) 0) o as a 0_ c Y a) a�i O .� ° m c a) 3 ° a E t o CL ,n Q cn 0 Q) Q a c cn]o c 'p 0 O E a O O O c - 8' c ca c T w co = c Yo a) O c E x O O °t3 _W O E Cl) a) —( 0 -5 c) a) c o u) 0 L_ " E 0 E a) cD Q. co = 0 "U a) t < .. 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