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Agreement with Dragset, LLCAgreement between CIty of Miami Beach and Elmgreen and Dragset, LLC for Commlssioned Artwork at the Miaml Beach Convention Center ThIs is an Agroemerit, made arid entored into this 7'4 day of and between: City of Miami Bemnh. Florida a municipal corponaUon, existing undothe laws of the State of Florida (hereinafter referred to as City) and Elmgreen and Dragset (artists' team of Michael Elmgreen and |ngmrDragmat). individuals, whose principal address is (Address of Artist) (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 the Iocation in (Iocation to be determined) indicated in Artist's conceptualdea|gn proposalvvhich has previously been approved by the City (such location hereafter referred d ho 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 t� contract with the City for perfor noeufthe 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 DEFINITIONS AND IDENTIFICATIONS The definitions and identifications set forth below are assumed to be true and correcand are agreed upon by the parties. 1.1 (or Contract). This document, and other terms and conditions which may be included in the exhibits and documents that are expressly incorporated by rafenance, as well as any amendments thereto. 1.2 Artist Bhn8rmmnand Dregset(artistm`team nf Michael Elmgreen and Ingar The individual selected to create the Artwork contemplated pursuant to this Agreement. 1.3 Artwork. That cortaln uniqueand original work of art to be created by Artist and installed on the Site, and to be known as 'Sans Souci", that has been approved by the City Commission, and is further described in Exhibit "A". (Entitled, "Artists 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 Bganh, Florida, 33138. In all respects hereunder. C|h/'SvnbUgationa and performance is pursuant to City's position as the owner of the Site acting in its proprietary capacity with respect to the Site and Project. In the event City exercises its regulatory authority as a governmental body, including to its regulatory authority for code inspections and issuance of building or other applicable permits within its jurisdiction, the exercise of such regulatory authority and the enforcement of any rules, regulations, laws and ordinances shall be deemed to have occurred pursuant to City's regulatory authority as a governmental body and shall not be attributable in any manner to City as a party to this Agreoment. 1.5 [Intentionally omitted] 1.6 City Commission. Shall mean the governing and tegistative body of the City. 1.7 Cit Manager. Shall mean the Chief Admiriistrative Officer of the City. 1.8 Contract Administrator. Shall mean th designee(s) of the City Manager, who shalt be the City's authorized representative(s) to coordinate, d1noct, and naview, on behalf of the City, all matters reiated to the Work and the Project, except as otherwise provided herein. The City Manager's initial designees with respect tocoordination and review cfProject-related mntbro shail include Patricia Romou, Miami -Dade County Pubtic Art Project Manager, the City's third - party administrator with respect to implementation of the Miami Beach Convention Center Art in Public Places program. 1.9 [Intentionally omitted] 1.10 Contract 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 fifty thousand dollars ($50,000.00) or the City Manager if they are fifty thousand dollars ($60,000.00) 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 fifty thousand ($50,000.00), 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 Sorvices Exhibit A-1: Project Schedule Exhibit B: Compensation and Schedule of Payments Exhibit C: Cataloging Form Exhibit D: Project Budget 1.12 Notice toProceed. Awritten notice issued bVthe Contract Administrator to Artist authorizing the commencement of the Work. 1.13 Project. That certain unique and original work of art (also referred to as the Artwork) to be created by Artist and installed on the Site, and to be known as "Sans Gaomptha\ has been approved by the City Commission, and is further described in Exhibit "A", attached hereto, 1.14 Project BShall mean an amount budgeteby the City for the Project, as specified in Exhibit "D", attached hereto. 1.15 Project mean the total cost of the Project to the City including, design, fabrication, permitting, and installation costs, compensation to Artist, contingencies, and other miscellaneous costs. 1.16 Project Scope. Shall n Uhn of the Project, as specified in Exhibit �". attached hereto. 117 [Intentionally 1.18 Work. Any work arid/or services required by Artist under this Agreement, as required to successfully completing the Project (including, without |imitaUon, 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 "Afor the design, permitting, fabrication, transportation, inspection, and installation of the Project. 2 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. 2.3 Artist shall provide monthly Project progress reports and/or deliverables in a form and mannor acceptable to the Contract Administrator. 2.4 Upon completion of the Project, Artist shall furnish the Contract Administrator with documontation showing the completed Artwork as follows: a. Photographs shall include the foliowing: 1. Two (2) CDs containing high resolution (image size not smaller than 5~ x 7" with a resolution of at least 300 dpi) and low resolution digital photographs(4" xO" size at 100 dpi) of the completed Artwork, 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 beat represont the completed Artwork. b. Electronic files and photographs shall be of acceptable professional quality in the determination of the Contract Administrator and shall be properly marked to include the Artist's Name, Title of the Artwork, Location, Medium and Dimensions of the Artwork. Artist shall provide Contract Administrator with copies of electronic files, construction docunnentn, 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, nnainbe0aMue, and preservation specific to the Project, wh|chshaUbeattachedaaExhibit"C"(Caba|oB|nOFornl)heneto. 2.5 Artist shall be solely responsible for the quality and timely pnnsecuUon, completion and installation of the Artwork and the Project. Artist shall be responsible for dthe Project so that It can be fabricatod and nstalled without exceeding the approved Projectject Budget. 2.6 Artist acknowledges ar,d warrants to City that an essential elernent of this Agreement is the skIll and creativityfArtist, and that |tissolely 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 onmignmnnt. 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 Artwork 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 ascertaininthe 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 Ad|at, 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 e costs resulting from the fabrication, -delivery, storage, and installatlon of the Artwork and the Project. 2.13 Title to the Artwork shall pass to the following of the Work; and 2) if the Work is approved, upon Contract Administrator's issuance of written final acceptance of the complete installed Project. Any risk of loss or damage to the Artwork or the Project shall be the sole responsibility and liability of Mist until such time as the Contract Administrator has issued a final written acceptance of the Project. 2.14 Upon Contract Administratorrelated to the design, fubdo$Uon. 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 thCity. The City shall be free to exhibit and/or reproduce these documents as it deems nocessary, in lts sole and absolute discrotion. 2.15 The responsibility of the Artist after final acceptance of the Project by the City is limited to the warranties according to Article 6 of this Agreement; any terms pertaining to the 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 in accordance with the Project Schedule set forth in Exhibit "A-1", attached hereto. It is the Artist's explicit responsibility to monitor and coordinate all aspects of scheduling in conjunction with the Contract Administrator and construction project team, Discrepancies in scheduling that may result in Artist's requests for extension of time or other claim must be documented pursuant to Section 3.6 of this Agreement. 3.2 Time shall be deemed to be of the essence in Artist's performance of i duties, obligations and responsibilities, as required by this Agreement. 3.3 In the event that the Artist completes fabrication or procurement of the Work in accordance with the aSchedule and is delayed from installing the Artwork on or before the time specified in the Schedule as a result of the construction of the Site not being sufficiently complete to reasonably permit installation of the Artwork therein, the Artist shall be granted an extension of time to complete and install the Arbwork, and shall be reimbursed for reasonable storage costs, if any, incurred for the period between the time specified in the 4 Schedule for installation and the date upon which construction of the Site is sufficiently complete to reasonably permit installation of the Artwork. Any claim for any such reasonable storage costs incurred and expended by the Artist, must be documented to the City's satisfaction pursuant to Section 3.6. Except as specified herein, in no event shall City have any obligation to Artist, nor shall Artist have any entitlement to, any additional compensation resulting from any delays in installation of the Artwork. 3.4 With respect to all other events of delay (other than those referenced in Section 3.3 above), the Contract Administrator may grant a reasonable extension of time to Artist, but solely if there is any unreasonable delay on the part of the City in performing its obligations hereunder, or if conditions beyond Artist's control render timely performance of the Work impossible or unexpectedly burdensome. The currently approved Schedule for the Work shall be the basis for interpreting any and all time -associated provisions of the Agreement, including requests for time extensions. Artist acknowledges and agrees that, except as specified in Section 3.3, Artist's sole and exclusive remedy for delays shall be a reasonable extension of time to complete and install the Artwork. In no event shall City have or owe any obligation to Artist, nor shall Artist have any entitlement to, any compensation resulting from delays, and NO CLAIM FOR DAMAGES OR ANY CLAIM OTHER THAN FOR AN EXTENSION OF TIME SHALL BE MADE OR ASSERTED AGAINST CITY BY REASON OF ANY DELAYS, including any claim or demand for payment or compensation of any kind for direct, indirect, consequential, impact, or other costs, expenses, lost profits, compensation, reimbursement or damages including costs of acceleration or inefficiency arising because of delay, disruption, interference or hindrance from any cause whatsoever, whether such delay, disruption, interference, or hindrance be reasonable or unreasonable, foreseeable or unforeseeable, or avoidable or unavoidable; provided, however, such delays are not due solely to fraud, bad faith or willful or intentional interference by the City in the performance of its obligations hereunder, and then only where such acts continue after Artist's written notice to the City of such alleged interference in accordance with the requirements of Section 3.6. 3.5 Notwithstanding the foregoing, the City may, at its sole discretion, adjust the schedule of payments set forth in Exhibit B, as necessary, to account for Project -related delays that do not arise from or relate to the Artist's actions or omissions and are beyond the Artist's reasonable control. 3.6 Where any delay conditions arise, the Artist shall so notify the Contract Administrator in writing no later than ten (10) days of the occurrence of the events giving rise to the claimed delay, with a detailed explanation describing all of the circumstances beyond the Artist's control that do not permit Artist to complete the Work as described in this Agreement in the time allotted, an explanation of how the delay has specifically impacted Artist's Schedule, and any supporting documentation relating thereto. In such event, the Artist agrees that the Contract Administrator shall be the sole judge of what constitutes an event or circumstances "beyond the Artist's control." Artist's failure to timely present a request for time extension or other claim in accordance with this Article 3 shall be conclusively deemed a waiver, abandonment or relinquishment of any such claim, it being expressly understood and agreed that the timely presentation of claims, in sufficient detail to allow proper investigation and prompt resolution thereof, is essential to the administration of this Agreement. 3.7 In the event the Artist causes a delay that impacts the construction schedule for the Project at the Site, the Artist shall have the duty to accelerate its services to mitigate the delay at no additional cost to the City. If the Artist is unable to mitigate the delay in an acceptable and effective manner, the Director may terminate this Agreement pursuant to Section 4.6.B of this Agreement. 3.8 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 5 hurricane, fire, civil disobodiencm, 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 coOtnsc, provided that such obligations shall be suspended ony for the duration of such condition. 3.9 The Contract Administrator may at any time suspend this Agreement for a period not exceeding one hundred and eighty (180) days or such further period to which the parties may agree, by giving written notice to the Artist of such suspension, which all shall become effective upon receipt by the Artist of the written suspension notice. An equitable adjustment shall be made in the time of performance of the Services, and the Agreement shall be modified accordingly, if the suspension results in an increase in the time required for performance of the Services and compensation payable to the Artist under Article 2. Pursuant to Article 5, the Agreement shall be modified in accordance with costs, if any, as demonstrated and documented by the Artist to result directly from such suspension. ARTICLE 4 COMPENSATION 4.1 City agrees to pay Artist, in the manner specified in Article4.3 and Exhibit "B" (Compensation and Schedule the amount of One MiUton One Hundred Thousand Dollars and No Cents ($1,100.000.00), which amount shall be the total compensation to Artist for the P'eoL 4.2 Artist may submit invoices for compensation no more often than on a monthly beeie, 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 invo|ce, which must be received no later than thirty (30) days aftor completion of alt Work. lnvoices shall deslgnate 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. 4.3 City shall pay Artist (bt only for Work satisfactorily performed and accepted by the Contract Administrator), withithirty ar dof receipt by tho City of Artist's proper invoice. Invoices shall be submitted by Artist to the City as follows: Patricia Romeu, Contract Administrator Miaml-Dade County Departrnent of Cultural Affairs Art in Public Places 111 NW 1 Street, Suite 610 Miami, FL 33128 ROMEU©mamidadOgov 4.4 Notwithstanding any provision of this Agreement to the contraFy. City may, at the sole and responsible discretion of the Contract Administrator, withhold a portion of any or all payments due under the Agroomont, to the extent necessary to protect itself from loss on account of inadequate or defective Work which has not been accepted by Contract Adnn|niotvmhor, or which has not been remedied or resolved in a manner satisfactory to Contract Administrator. 4.5 Payment shall be made to Artist at: Elmgreen und Dragset Schandauer Str 13 Berlin, Germany 12045 6 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 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 as specified in Exhibit C will not require any extraordinary procedures or efforts. 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 the Artwork is to be free from defective or inferior materials and workmanship for two (2) years after the date of final written acceptance by the City, including any defects or qualities causing or accelerating deterioration. If within these two (2) years the City finds the Artwork in need of repair due to any of the above stated conditions, such repairs will be made at no expense to the City promptly and satisfactorily. For the avoidance of doubt, Artist shall not be responsible for repairs of the Work due to willful damage by others after the City's acceptance of the work. 6.5 If Artist fails to remedy any failure, defect, or damage within a reasonable time after receipt of notice from City, the City shall have the right to replace, repair, or otherwise remedy the failure, defect, or damage at the Artist's expense. 6.6., Artist with respect to all warranties, express or implied, shall: a. Obtain all warranties that would be given in normal commercial practice; b. Require all warranties to be executed, in writing, for the benefit of the City, if directed by the Contract Administrator; and c. Enforce all warranties for the benefit of the City, if directed by the Contract Administrator. 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 with 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 ArUst 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 inareasonably timely manner; g. Prepare and Install, at its mwpenow, a plaque or sign identifying Artist, the title of the Project, materials used, year of cnnlp|e8on, and a narrative explanation of the Project, and reasonably mantain samo in good repair; and h. Reasonably assure that the Project is properly ma|nbaiOed, taking into ucount the recommendations of Artist, as set forth in Exhibit C'; and i. Give prompt written notice to Artist within a reasonable time afte he discovery of any failure, defect, or damage. ALTERATIONS OF THE SITE OR OF THE ARTWORK 8.1 The City ato make all reasonableefort$homainbain0l integrity of the Artwork, It is an iriherent naturo of any site to be vunerabIe to physical alterations of varylng degrees that may arise out of a functional need consistent with its intended design and usage and/or the operational requirements of the Site. Respectively, the integrity and authenticity of the Artwork may become compromised by an alteration of the Site if the Artwork is an integral component of the Site. It is with the express understanding above that the Artist hereby agrees to waive all rights to monetary compensation for anacts arising out of operational requlrements which may causo alterations to the Site and/or the Artwork. The City shall notify the Artist of any proposed alteration Artwork or of the Site that would affect the intended character and appearance of the Artwork, and shall consult with the Artist in the planning of any such alteration. If any such alteration of the Site or of the Artwork is made without the express written approval of the Artist, the Artist may elect, upon a minimum advance written notice of five (5) business days, to enter upon the Site and eu• Artist's sole cost and expense remove or obliterate the blic notice, plaque or referred to in Article 7 obnvs, as well as any signature or other emblem identifying the Artist with the Artwork, and may take such other action as he/she may choose in order to disavow the Artwork, 8.2 The C If the Artist fails or refuses to approve any repair or restoration, the City shall have the right to make such repair or restoration. To the extent practical, as determined by the City at its sole discretion, the Artist shall be given the opportunity to make or personally supervisesignificant repairs and restorations and the Artist may, at the discretion of the Trust, be paid a reasonable feo for any such service, providedthatbothpmdieupriortotheexecutipnofaunh services mutually agree upon the fee in wrlting. ARTICLE 9 INTELLECTUAL PROPERTY 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 the Artist and/or the Artwork. 9,2 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 any non-commercial public promotional purpose, or any other purpose that promotes or identifies the Artwork as being located within the Miami Beach Convention Center, or more generally within the City or as part of its Art in Public Places Program, including tourism -related promotional or collateral materials with respect thereto, as determined solely by the City, in its discretion, for the entire term of the copyright. In furtherance of the foregoing irrevocable non-exclusive license, Artist hereby waives any rights, including moral rights, that Artist may have to object to City's depiction of the Artwork as being located within the City or Miami Beach Convention Center, in any promotional or collateral materials of the City or Miami Beach Convention Center. It is 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 the Artist's advance written approval. 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 the Artwork shall comply with all applicable patent, trademark and copyright laws, nu|ms, regulations and codes. Artist further aes that it will not knowingly use any third party's patent, trademark or copyright unless Artist has obtained proper permission and all releases, and other necessary documents. If Artist uses any protected /nebada|, 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 tho event that City Iearns of any infringement, threatened infringement, or passing -off of all or any portion of the Artwork by a third party, 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 ovgn\. City and Artist will reasonably cooperate with each other to prosecute any such action including, without pjudice to the generality of this requirement, consentlng to be a party to the proceedings. ARTICLE 10 TERMINATION 10.1 Termination for Cause. This Agreement may be terminated for cause by the City Manag upon thirty (30) days prior written notice to Artist. a. 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. b. 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. c. 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. 10,2 Termination_ by Artist fer Non -Payment b_y. City. If City fails to make payment to Artist of any undisputed amount due pursuant to this Agreement, Artist shall notify City of such breach of the Agreement by written notice in accordance with Section 11.6 hereunder. If the breach is not cured within sixty (60) days after City's receipt of written notice, Artist may terminate this Agreement immediately upon written notice to the City. 10,3 Termination for Convenience. Either party may terminate this Agreement for its convenience at any time upon furnishing sixty (60) days written notice to the other party. In the event the City terminates this Agreement for convenience, the Artist shall at his/her discretion have the right to either: a. Compensation for non-refundable expenses incurred and work satisfactorily performed prior to the date of termination (without allowance for an anticipated profit on unperformed services), less payments made to the Artist prior to the date of terminationin which event the City shall have the right at its discretion to possession and transfer of title to the sketches, design, and models already produced and submitted or produced for submission by the Artist under this Agreement, provided that no right to fabricate or execute the Work shall pass to the City; or b. the possession of all sketches, designs, models or other documents or materials produced and subrnitted or produced for submission to the City in the course of the Artist's performance under this Agreement prior to termination, in which case the Artist shall remit to the City a sum equal to the payments (if any) made to the Artist pursuant to this Agreement, less non-refundable expenses incurred by the Artist prior to termination. If Artist terminates this Agreement for its convenience, the Artist shall remit to the City a sum equal to all payments (if any) made to the Artist pursuant to this Agreement prior to I0 termination. The City shall revert title of the Artwork to the Artist and return any material data and or work in progress to the extent that such return does not impact City property. 10.4 Termination by Chy for Death or Permanent Incapacity of Artist. City shall ba 8nUUed, at its sole discretion, to terminate this Agreement upon the death of the Artist, or permanent incapacity of the Artist that renders the Artist incapable of completing the Artwork. In making this determination, City shall consider and take into account whether the Artist's designs have progressed to the point that the Artwork may be appropriately executed, and considered an original work of the Artist, without the further participation of the Artist. In the event of a termination pursuant to this Section 10.4, neither the Artist nor the Artist's estate shall have any further right or obligation to perform hereunder, and City shall compensate the Artist or Artist's estate for non-refundable expenses incurred and work satisfactorily performed prior to the date of termination (without allowance for an anticipated profit on unperformed services), less payments made to the Artist prior to the date of termination. ARTICLE 11 MISCELLANEOUS AUDIT RIGHT AND RETENTION OF RECORDS City shall have the right to audit the books, reconbs, and accounts of Artlst as they relate to the ProjecArtist shall keep such books, records, and accounts as may be necessary in order to record comptete and correct entries retated to the Project. Artist shall preserve and make available, during customary business houro. for examination and audit by the City, Mayor and/or his authorized representatives, all financial renordo, supporting documento, statistical reoordo, and any other documents pertinent to this Agreement and for the Pnojeut, 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 terrnination 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 untii resotution of the audit findings, 11,2 NONDISCRIMINATION, EQUAL EMPLOYMENT OPPORTUNITY, AND AMERICANS WITH DISABILITIES ACT Artist shall not unlawfully discriminate againstan rson 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 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 Pubtic Entity Crimes Act (Fla. Stat. §287.133), which essentially kdes 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 Qty 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, ltmnt under a contractwith City, 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 detenninoUVn, based on an audit, that it committed an acdefined by Section 287.133, Florida Statutes, as a public entity crime and that it has not bformally ed with committianact dofiO*dao 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 underthservices, neither Artist nor ts agents shall act as officers, employees, or agents agonts of the City. This Agreement shall not constitute or make the parties a partnershor joint venture, nor does this Agreement coristitute a work for hire arrangement or agreement. 11.THIRD PARTY BENEFICIARIES Neither Artist City intends directly bnta| benefit third party by thls 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. 118 NOTICES Whenever either party desires to give notice to the other, such notice must be in vvhtiDQ, 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 Art in Public Places 1700 Convention Center Drive Miami, FL 33139 Attn: Brandi Reddick, Cultural Affairs Manager Tel: 305.G73.000Uext. 3856 b[aIdiDeddick@[0ia0ibegohfigDY Elmgreen und Dragset Berlin, Germany 12O45 C/o: Margo Lauras, Studio Manager Ph: +4S(0)3O880B508-11 11.7 ASSIGNMENT AND PERFORMANCE 12 Artist shall not assign, transfer, or encumber alt 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 oNUs, either by training,experience, education, or a combination thereof, to adequately and competently rfVm0 the duties related to the particular services and work contomptatod in the Scope of Services. CONFLICTS Neither Artist nor its omployees and/or sub -contractors shall, have or hold any continuing frequently recurring employment or contractual relationship that is substantially antagonistic or incompatible with Artist's 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 ithas not employed orretained any company or person, other than 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 Agreement price or otherwise recover the full amount of such fee, commission, percentage, gift or consideration. 1110 WAIVER OF E3REACH 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 shallnotbedmannedawmiverofanysUbyequertbnmmohandaha|| not be construed to be a modification of the terms of this Agroemont. 11. 1 _COMPLIANCE WITH LAWS Artist shall comply with all Federal, 8hyte, and local (County and City) laws, codes, on2OnnVes, rules, and regulations in performing his dutiesresponoib|Ubou, and oblimbons related to this Agreement, 11.12 SEVERANCE 13 In the event this Agreement or a portion of this Agreement is found by a court of competent jurisdiction to be inva|d. the remaining provisions shall continue to be effective unless City elects to terminate this Agreement, 11.13 JOINT PREPARATION The parties hereto acknowledge that ht 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, 1 .14 RIGHT OF DECISION The City acknowledges and agrees that matters relateto the Artist's deslgn for the Artwork are within the Artists sole discretion, Artist generally adheres to the original design concept (and budget) upon which the Artist's selection was based. The Contract Administrator shall decide and render administrative (proprietary) decisions on matters arising pursuant to this Agreement which are not otherwise expressly provided for in this Agreement, ncluding matters relating to the administration of the ProjocttondthahabricaUon.construction. delivery, installation, and inspections of the Artwork, subject to Artist's reservation of rights to assert a claim in accordance with this Ant or applicable law. Subject to any such reservation of r|ghta, all work shall be performed by the Artist at the sole direction of and to the reasonable satisfaction of the Contract Administrator, who shall decide all o|a|nAm, questions or disputes concerning the prosecution and fulfillment of the Work hereunder, and the character, qVoUh/, amount and value thereof, and the Contract Administrator's decisions thereon shall be conclusive and binding upon the parties with respect to the administration of the Agreement, unless such determination is clearly arbitrary or unreasonable. All decisions of the Contract Administrator shall be written and transmitted to the Artist. In the event that the Artist does not concur in the judgments of the Contract Administrator, the Artist shall present his written objections to the City Manager within thirty (30)days from the date of the Artist's recelpt of such written decision. The Contract Administrator and the Artist shall abide by any administrative (proprietary) decision of theCity Manager, subJect to Artist's reservation of rights to assert any claim in accordance with the terms of this Agreement or applicable law. 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 thishall 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. 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 nUUaformality as this reement and approved and executed by the City Commission (if over $50`000.00) orthe City Manager (if less than $50.00D.0O)and Artist. 11.17 PRIOR AGREEMENTS This document incorporates and includes all prior negot|aUone, correspondence, convensaUonn, agnaemenha, and understandings appticable to the matters contained herein 14 and the parties agree that them are no cmmm|tments, agreements or understandings concerning the subject matter of this Agreement that are not contained in this document. Ancundingly, the parties agree that no deviation from the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written. It is further agreed that no modification, amendment or alteration in the terms or conditlons contained herein shall be effective unless contained in a written document in accordance with subsection 11.16 above, 11.18 [Intentionally omitted] 11.19 |N8URMCE Artist shall maintain, at its sole cost and expense, the following types of insurance coverage at all times throughout the Term of this Agreernent or untH 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, properly damage, and personal injury. This policy must also contain coverage for premises operations, products and contractual b. [Intentionally 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. AU insurance policies must be issued by companies that are authorized to do business in the State of Florida, and have a rating ofB+V| or better in the ourrent 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 d written ti to thCity, d then | 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 a) Artist agrees to indemnify and hold harrnless the City and Its officers, employees and agents, from and againsany and alt actions, claims, liabilities, losses, and expenses, including, but not Iimited to, attomeys' fees, for personal, economic or bodity injury, wrongful death, loss of or damage to property, at taw 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 Artist's performance of the Work pursuant to this Agreement; and to that extent, Artist shall pay all such claims and losses and shall pay alt such costs and judgments which may issue from any lawsult 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 15 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 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. b) Upon completion of the installation of the work and Its final acceptance by the City, the City shall to the extent permitted by law indemnify and hold harmless the Artist against any and all claims or liabilities except for latent defects then existing or arising thereafter in connection with the Work, the Site, and or this Agreement. The provisions of this Section 11.20 shall survive the termination or earlier expiration of this Agreement. [REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK] 16 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, da Artist/Name of Artist 2.4 , day of Witnesses: pt 19 Signature , 14J-112+?e) Print Nahle Signature , 2017 • APPROVED AS TO FORM & LANGUAGE & FOR IXECUTJON City Attorney p Date C,19et Print Nam 17 EXHIBIT A ARTIST'S SCOPE OF SERVICES RTWORKUPROJECT: Monumental Exterior Work at the Convention Center Park PURPOSE: Artist will design fabricate, permit, tmnwport, inspect, and install the above original work of art (also referred to as Artwork or Project), LOCATION OF SITE: Park across from the West Entrance to the new Miami Beach Convention Center, Miami Beach, Florida ADMINISTRATIVE COORDINATION: The Contract Administrator shall be the City's authorized representative to toondinate, direct, and neview, on behalf of the City, all matters related to the VVork. Artist shall maintain regular communication with the Contract Administrator via phone, letter ore'mai|. DESIGN COLLABORATION: During the design of the 8rtwork. Artist shall coordinate its progress with the Contract Administrator, The design of the Artwork shall be coordinated with the design process in the following areas: mnmthet|oe, public presentations, construction documentu, cost estimates and facility project schedules. Should the design of the Artwork require specialized professional sen/imnm. Artist shall hire an appropriate sub-consuttant and/or sub-Vnntnaobor, 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. Artist 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 where approprlato. CONSTRUCTION AND INSTALLATION COORDINATION: During the construction of the facility and the installation of the Arbmorh. Artist shall collaborate and coordinate the Work with the Contract Administrator or his/her doslgnated public art project coordinator, Consultant, General Contractor, or any other professional or individual designated by the City. The Artist shall coordinate the installation of the Artwork in accordance with the construction documents. The Artist shall be responsible for construction oversight during the fabrication and integration of all Artist -designed components, whether fabricated by Artist's subcontractors or included in construction documents to be fabricated and installed by others. DELlVRABLES: The Artistshall provide the following deliverables: I -A [Intentionally omitted] I -B Conceptual design proposal and shall secure its approval by the Miami Beach Art in Public Places Committee (which is an advisory board of the City). 1. [Intentionally 2. This phase includes a Site visit for presentation to the Art in Pubuc Places Committee and coordination with the Contract Administrator. 3. This phase includes a Site visit by Artist or Artisn representative for presentation to either the City's Board or Historic Preservation Board, and to further coordinate demign, febhoadon, and installation of the Project with the Contract Administrator. The City acthath h s been successfully completed. 18 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 allocable 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. 2. If the verified cost exceeds the Project Budget, Artist shall be obligated to redesign the Artwork to fit within the established budget, inclusive of all payments to Artist, at no additional charge toCity. Artist shall coordinate andoartio in alt productand materlat testing retated to the Artwork and determine final product and material with the Contract Administrator subsequent to testing. 4. Thls phase includes Site visits for coordination and prosentation purposes. |-] Fabrication and Installation. Artist shall fabricate, deliver and install all Artwork and Artwork support components, as per the approved construction drawingsArtist shall provide construction administration services as required during the installation of the Artwork at the Site, Unc|uding, but not limited to, the coordination of all applicable inspections by all governmental authorities having jurisdiction over the Pjeuh. 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, |-F WaPeriod. All Work furnished underthis Agreement shall be guaranteed against defective materials and workmanship, improper performance and noncompliance with the approved construction drawin0a, for a period of two (2) year after final acceptance of the Project by Contract Administrator. SITE INSPECTIONS/SITE CONDITIONS/STA\ K8GNTS. Prior to mobilization, the Artist and/or his subcontractor(s) shall visit and inspect the Site. Subsequent to such inspection and throughout the course of the Work the Artist shall notify the Contract Administrator of any shor@go, access, power, water and other requirements for proper installation of the Work that are not to be provided by the Artist. The Artist shall notify the Contract Administrator in writing of any adverse Site conditions that may impede or otherwise impact the smooth and normal progress of the Work and which require resolution before proceeding with any portion of the Work. The Artist shall promptly report to the Contract Administrator any condition pertaining to dehscdvn, unsuitable or unacceptable Site cond1Uons, including but not limited to Site obstructions or damages impacting the Work. The Artist shall pn>vide such notice within a reasonable amount of time so as to allow the Contract Administrator to properly coordinate with the field and not create any delays to the construction schedule. COMPLETION AND INSPECTION: Upon oledo 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 Artwork acceptable, the requirements of the 19 Agreement with regard to design, fabrication, and installation of the Artwork 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 all applicable uses by the City. COMMUNITY INVOLVEMENT and EDUCATIONAL OUTREACH: The Artist shall participate in at least one (1) community meeting and two (2) other public meetings, as shall be determined by the Contract Administrator. The date of the community 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: City shall assist the Artist in preparing 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 if feasible and reasonable for the Artist. 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 Artwork. 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 or Design Review Board The City shall identify all and any governmental authorities that may have jurisdiction over the Project and inform the Artist about this. If the City failed to provide accurate and complete information to Artist, Artist shall not be responsible to procure the respective 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) 20 EXHIBIT A-1 PROJECT SCHEDULE To be determined in coordination with the project's design and construction team 21 EXHIBIT B COMPENSATION AND SCHEDULE0pPAYMENTm City shall pay Elmgreen and Dragset the total sum of OnMillion One Hundred Dollars and No Cents (;1/108,000.00) for the Work contemplated in this Agreement, which sum shall represent the total compensation to Elnngneen and Drmgmet. No other amount shall be paid to Artist (including for reimbursable expenses). Artist will be paid in accordance with the foregoing specified inote1|ments, upon submission of satisfactory invoices and documentation substantiating satisfactory completion of the portion of the Work for which payment is requosted, and upon Contract Administrator's acceptance of said portion of the Work (as applicable). Additionally, each invoice shall include a written progress report, with a narrative discussion of all activities in progress during the report period, photo documentation where approprate, based upon tho stated Scope of Services and payment descrpton. Payments to Artist shall be made for Work satisfactorily completed in accordance with the following schedule: 1. Payment #1: Fifty -Five Thousand Dollars and No Cents ($55,000) (which is approximately 5% of the fixed fee) to be paid upon the signing of the contract and the development of the work plan which will include detailed project budget, a timeline, and Scope of Work. 2. Payment #2: Fifty -Five Thousand Dollars and No Cents ($55,000) (which is approximately 5% of the fixed fee) to be paid upon 30% completion of design documents. 3. Payment #3: Fifty -Five Thousand Dollars and No Gents is approximately5Y6 of the fixed fee) to be paid upon 60% completion of design documents, 4. Payment #4: Fifty -Five Thousand Dollars and No Cents ($55,000) (which Is approximately 5% of the fixed fee) to be paid upon substantial completion of design documents inclusive of all materials necessary for permitting the project through the applicable Authorities Having Jurisdiction, and conservation assessment, as further provided in the Scope of Work. 5. Payment #5: One Hundred and Ten Thousand Dollars ($110,000) (which is approximately 10% of the fixed fee) to be paid upon submittal of signed negotiated contracts with all fabricators including compensation schedule and completion timeline for their portion of the work, 6. Payment #6: One Hundred and8 Thousand no Cents ($165 0 (which is approximately 15% of the fixed fee) to be paid upon issuance by City of Notice to Procee with artwork fandcaUon, and submittal to the City of proof of permit approval and or equivalent. 7. Payment #7: One Hundred and Ten Thousand Dollars and No Cents ($110.000) which is approximately 10% of the fixed fee) to be paid upon 30% completion of artwork fabrication, O. Payment *8: One Hundred and Ten Thousand Dollars and No Cents ($ 000) is approximately 10Y6 of the fixed fee) to be paid upon 80% completion of artwork fabrication and verified field conditions. Payment #9: Qne Hundred and Ten Thousand Dollars and No Cents ($110,000) (which is approximately 10% of the fixed fee) to be paid upon substantial completion of artwork fabrication. 10. Payment #10: Thousand Dollars and No Cents /$05000\ (which is a 5% of the fixed fee) to be paid upon issuance by City of Notice to Proceewith artwork installation and Artlst's written notice of mobilization date. 22 11. Payment #11: Ono Hundred and Ten Thousand Dollars and NVCents ($11O.000) (which is approximately 10% of the fixed fee) to be paid upon 50% completion of artwork installation 12. Payment #12: Dollars and No Cent55(which is approximately 6% of the fixed fee) to be paid upon substantial completion of artwork installation and completion of punch Iist. 13. Payment #13:. 5% of the fixed fee) to be paid upon submission of Photo Documentation as outlined in Sec. 2.4 and Exhibit "C" "Cataloging Form" of this agreement and final acceptance by Contract Administrator. 23 Catalog # gXHIBIT C City OF Miami Beach CATALOGING FORM 1. Artist Information A. 1. Name: Michael Elmgreen and Inger Dragset 2. Name you want to use on label and PR materials, if differs from above: Elmgreen & Dragset B. Date of Birth: Michael Elmgreen: 25/07/1961 Inger Dragset: 16/07/1969 C. Place of Birth: Michael Elmgreen: Copenhagen, Denmark Inger Dragset: Trondheim, Norway D. Address, e-mail, web site: Schandauer Strasse 13 12045 Berlin Germany office@elmdrag.net http://www.elmgreen-dragset.com/ E. Contact Phone numbers Business: +49 30 680 85 680 Home: Fax: + 49 680 30 6812 F. One paragraph biography of OAF: 11. Work cf Art A: Title: Bent Pool B. Medium: to be confirmed. Aluminum, stainless steel or fiberglass, lacquer C. 1. Dimensions in centimeters: H: 600 W:329,1 D: 329,1 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...): 24 G. Artwork wlth electronic components used: -Name of item: -Manufacturer info (address, telephone, e-mail): -Supplier info (address, telephone, e-mail): s e Bent Pooshaped inverted" and stands on a two-tier plinth. The pool seems to have somehow beon stretched into this curved form—an almost"surroallst twist" on the design of a typical swimrning pool. With a turquoise intorior and a matte whlte exterior,the work stands out against the verdant surroundings of the planned Miami Convention Center Park. 13y positioning it in the rnldst of the parks Iush Iaridscape, the artlsts achieve a simple displacement of the kind for which they aro well known, challenglng our associatlons and expectations of a particular setting. Tho signaturere combination of displacement and minimal deinaestheUospn$sWntin Bent Poomake it an iconic work by the artlst duo, The intriguingqualities ofeswimming pool—including its color scheme, its protruding diving board on one side, and the ladder on the other side—become apparent when it is singularly presented in this unusual upright position, rather than being dug down into the ground. Like Bmgnaen&DnagaeCaprevious projects eVchesPradoK4orfo(a Prada store Iocated iri the middle of the Texan desert), the swimmirig pool createsfeeling of alienation and wonder, and brings attention to its context by its very otherness. The swirnming pool motif closely references many of Elmgreen & Dragset's past works, including Powerless Structures, Fig. 11 a diving board installed ponetratinga window at the Louisiana Museum of Modern Art and currently on view at Punta della Dogana in Venice, as well as Death of a Collector, their installation of an art collector floating face down in his swimming pool at the 53rd Venice Biennale. A. Material(s) used in Artwork: B. Material Finish: C. Materia used in the presentation of the projec(mequottm): D. Fabricators (nmme, addreon, phone, e-mail, web site): E. Fabrication rneVhod (attach diagrams ar drawings): F. Engineer/Engineer (name, address, telephone, e-mail): N. knstallation A. Installation executed by (name, address, phone, e-mail, website): B. Installation rnethod (attach diagram of substructure, footings): C. Date of Installation: 25 V. External Factoys A. Describe physical positioning of the Artwor: B. Describe existing environmental factors which may affect the condition of the Artwork: C If the work is site-specific, describe the reationship of the work to its site: IV_Iiintenance (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: 0. Note desired appearance of the Artwork: V1|: Digital copies for use in repair of sound art and graphic reproduction: VL nature 26 EXHIBIT D PROJECT BUDGET exhibit in artist agreernent) 27