Agreement with Bill Fontanadol7 -3012_ (
Agreement between
City of Miami Beach and Bill Fontana
for Commissioned Artwork at SoundScape Park
This is an Agreement, made and entered into this ° day of cJ,2r('4 - M018, by and between: City
of Miami Beach, Florida a municipal corporation, existing under the laws of the State of Florida
(hereinafter referred to as City) and Bill Fontana, an individual, whose principal address is 2317 Jones,
San Francisco, California, 94133 (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 SoundScape Park 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 (Bill Fontana). 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 "Sonic Dreamscapes", 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. In all respects hereunder,
City's obligations 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 Agreement.
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(s) of the City Manager, who shall be the
City's authorized representative(s) to coordinate, direct, and review, on behalf of the City, all
matters related to the Work and the Project, except as otherwise provided herein.
1.9 [Intentionally omitted]
1.10 Contract (Agreement) Amendment. Shall mean a written order to 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 fifty thousand dollars ($50,000.00) or the City Manager if they are fifty thousand dollars
($50,000.00) 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:
Exhibit A -1:
Exhibit B:
Exhibit C:
Exhibit D:
Artist's Scope of Services
Project Schedule
Compensation and Schedule of Payments
Cataloging Form
Project Budget
1.12 Notice to Proceed. A written notice issued by the 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 "Sonic Dreamscapes', that has
been approved by the City Commission, and is further described in Exhibit "A ", attached hereto.
1.14 Project Budget. Shall mean an amount budgeted by the City for the Project, as specified in
Exhibit "D ", attached hereto.
1.15 Project Cost. Shall mean the total cost of the Project to the City including, design, development,
permitting, and installation costs, compensation to Artist, contingencies, and other miscellaneous
costs.
1.16 Project Scope. Shall mean the description of the Project, as specified in Exhibit "A ", attached
hereto.
1.17 New World Symphony means the not -for profit orchestral academy, located at 500 17th Street,
Miami Beach, Florida, with certain responsibilities for programming at Soundscape Park.
1.18 Work. Any work and /or services required by Artist under this Agreement, as required to
successfully completing 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,
development, 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
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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 regular Project progress reports and /or deliverables in a form and manner
acceptable to the Contract Administrator.
2.4 Upon completion of the Project, Artist shall furnish the Contract Administrator with documentation
showing the completed Artwork as follows:
a. Stereo Sound mixes for each segment as both mp3 and high res 24 BIT WAVE FILES. This
would be delivered both as a downloadable file from a server and as a master copy on a solid
state hard drive.
b. Video files would be delivered as high res mp4 files that can be streamed or downloaded and
master copies as Pro Res on a solid state hard drive.
c. Cue Mix Software details for the audio programing at Soundscape Park in the form of a digital file
that is both a downloadable link and as a copy on the solid state hard drive with the sound mixes.
d. Electronic files shall be of acceptable professional quality in the determination of the Contract
Administrator and shall be properly marked to include the Artist's Name, Title of the Work,
Location, Medium and Dimensions of the Work.
e. Artist shall provide Contract Administrator with copies of electronic files, showing and /or
accurately depicting the completed Artwork to the extent that they exist.
f. 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.
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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
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 notify the Contract Administrator and New World
Symphony.
2.12 Artist shall bear any transportation and storage costs resulting from the development, 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 in accordance with the process set out in Exhibit A.
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.
2.14 Upon Contract Administrator's written final acceptance of the Project, all documents related to the
design, development, 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 Artist retains all copyright in all such preparatory documents relating to the
Artwork, but the City shall be free to exhibit and /or reproduce these documents for non-
commercial purposes as it deems necessary.
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 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 New World Symphony. 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 The Artist shall perform his duties, obligations and responsibilities, as required by this Agreement,
in a timely manner. The Artist and the City shall work together to agree an installation timetable
and use their best endeavors to adhere to that timetable.
3.3 In the event that the Artist completes development of the Work in accordance with the above -
referenced Schedule and is delayed from installing the Work on or before the time specified in the
Schedule, the Artist shall be granted an extension of time to complete and install the WorkExcept
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 Work.
If, after the Notice to Proceed has been issued, the Artist is delayed from installing the Work in
accordance with the agreed installation schedule because the Site is not sufficiently ready for
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installation to begin or for any other delay caused by City, then the City shall reimburse the Artist
for all out -of- pocket expenses incurred because of the delay provided that such costs are
documented to the City's satisfaction.
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
Work. 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, with the agreement of the Artist, 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 NOT USED.
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
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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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 II shall be modified in accordance with costs, if
any, as demonstrated and documented pursuant to Section 4.17 by the Artist to result directly
from such suspension.
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) here to, the amount of Two Hundred and Forty Six Thousand Five
Hundred and Nine Dollars and No Cents ($246,509.00), which amount shall be the total
compensation to Artist for the Project.
4.2 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.
4.3 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
Art in Public Places
1755 Meridian Avenue, Suite 500
Miami Beach, FL 33139
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:
Bill Fontana
2317 Jones Street
San Francisco, CA 94133
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ARTICLE 5
CHANGES IN SCOPE OF SERVICES
5.1 Any significant changes in the scope of services, including, without limitation, any material
change in the Artwork or of the Project; 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. City
acknowledges that, due to the nature of his practice, the Artist may make conceptual changes to
the Artwork while working on site, but will communicate with the Contract Administrator about
such changes. Any such changes would only require an amendment to this Agreement if the
resulting Artwork is radically different from the audio and video presentation approved by City.
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 or efforts. For the avoidance of doubt, the Artist does not give any
warranty as to the level of maintenance that may be required as a result of the climactic
conditions in Miami.
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 After the Artwork has been accepted by the City, the Artist shall not be responsible for any
deterioration caused by the climactic conditions in Miami or any defects caused by materials or
protective processes that the Contract Administrator has approved. Subject to the above, the
Artist warrants to the City that the Work be free from materials not approved by the Contract
Administrator and defective 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 two (2) years the City finds the Work in need of repair caused by defective workmanship or
the use of unapproved materials or failure to follow any protective measures approved by City,
such repairs will be made at no expense to the City promptly and satisfactorily.
6.5 If Artist fails to remedy any failure, defect, or damage caused by a breach of the warranty
provided at clause 6.4 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.
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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 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, strictly in accordance with the
maintenance instructions supplied by the Artist, as set forth in Exhibit "C' ; and
i. Give prompt written notice to Artist within a reasonable time after the discovery of any failure,
defect, or damage.
ARTICLE 8
ALTERATIONS OF THE SITE OR OF THE WORK
8.1 The City agrees to make all reasonable efforts to maintain the integrity of the Artwork. It is an
inherent nature of any site to be vulnerable to physical alterations of varying 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 Work may
become compromised by an alteration of the Site if the Work 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 any acts arising out of operational requirements which may cause
alterations to the Site and /or the Work.
The City shall notify the Artist of any proposed alteration of the Work or of the Site that would
affect the intended character and appearance of the Work, and shall consult with the Artist in the
planning of any such alteration. If any such alteration of the Site or of the Work 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 at Artist's sole cost and expense paint
over the Artwork and remove or obliterate the public notice, plaque or sign referred to in Article 7
above, as well as any signature or other emblem identifying the Artist with the Work, and may
take such other action as he /she may choose in order to disavow the Work.
8.2 The City agrees to take such reasonable measures, as it deems necessary, in its reasonable
discretion, to maintain the Artwork in accordance with the maintenance instructions provided by
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the Artist, if any. 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 Article 8 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 provided that
such repairs are in accordance with the maintenance instructions provided by the Artist, 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 and in
accordance with maintenance instructions provided by the Artist.
If the Artist fails or refuses to approve any repair or restoration, the City shall have the right to
make such repair or restoration in accordance with maintenance instructions provided by the
Artist. To the extent practical, as determined by the City at its sole discretion, the Artist shall be
given the opportunity to make or personally supervise significant repairs and restorations and the
Artist may, at the discretion of the City, be paid a reasonable fee for any such service, provided
that both parties prior to the execution of such services mutually agree upon the fee in writing.
ARTICLE 9
INTELLECTUAL PROPERTY
9.1 INTELLECTUAL PROPERTY. All copyrights, moral rights 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 Notwithstanding Section 9.1 or any other term or condition of this Agreement, Artist hereby grants
to City a non - exclusive, irrevocable, and royalty -free license for the period that the Artwork is
located at the Site to reproduce, make, print and /or publish photographic, filmed, videotaped or
audio reproductions, of the Artwork (including, without limitation, any proposals for the Artwork) for
any non - commercial public promotional purpose, or any other non- commercial purpose that
promotes or identifies the Artwork as being exhibited within the SoundScape Park or the New World
Symphony, 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. 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 exhibited at SoundScape Park or the New World Symphony, in any promotional or
collateral materials of the City or New World Symphony. 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 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 technical specifications and, in any event, prior
to actual installation 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. Artist shall
consult with City before bringing infringement actions against third parties but the decision to
commence proceedings shall be in the Artist's sole discretion. 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 Termination for Cause. This Agreement may be terminated for cause by the City Manager, upon
thirty (30) days' prior written notice to Artist.
a. Termination of this Agreement for "cause" shall include a persistent and material 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 material breach of the
provisions of this Agreement which has not been cured within 60 days of the Artist
receiving written notice of the same or for any other reason strictly 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 for Cause. If City fails to make payment to Artist of any undisputed amount
due pursuant to this Agreement or if City materially breaches the provisions of 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 termination,
in which event the City shall have the right at its discretion to possession and transfer of
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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 submitted 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.
c. 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
termination. The City shall revert title of the Work 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 City for Death or Permanent Incapacity of Artist. City shall be entitled, 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 consult with the Artist's representative who will decide 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
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.
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.
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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.
11.6 NOTICES
Whenever either party desires to give notice to the other, such notice must be in writing, sent by
certified 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
1755 Meridian Avenue, Suite 500
Miami Beach, FL 33139
Attn: Dennis Leyva, Art in Public Places Administrator
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FOR Artist:
Bill Fontana
2317 Jones Street
San Francisco, CA 94133
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.
11.8 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'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 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
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.
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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.
11.12 SEVERANCE
In the event this Agreement or a portion of this Agreement is found by a court of competent
jurisdiction to be invalid, the remaining provisions shall continue to be effective unless City elects
to terminate this Agreement.
11.13 JOINT PREPARATION
The parties hereto acknowledge that they have sought and received whatever competent advice
and counsel as was necessary for them to form a full and complete understanding of all rights
and obligations herein and that the preparation of this Agreement has been a joint effort of the
parties, the language has been agreed to by parties to express their mutual intent and the
resulting document shall not, solely as a matter of judicial construction, be construed more
severely against one of the parties than the other.
11.14 RIGHT OF DECISION
The City acknowledges and agrees that matters related to the Artist's design for the Artwork are
within the Artist's sole discretion, provided the 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, including matters
relating to the administration of the Project and the development, delivery, installation, and
inspections of the Artwork, subject to Artist's reservation of rights to assert a claim in accordance
with this Agreement or applicable law. Subject to any such reservation of rights, 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 claims, questions or disputes concerning the prosecution and
fulfillment of the Work hereunder, and the character, quality, amount and value thereof (subject to
the Artist having absolute control over aesthetic decisions in relation to the Artwork), 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 receipt of such written decision. The Contract Administrator and the Artist
shall abide by any administrative (proprietary) decision of the City Manager, subject to Artist's
reservation of rights to assert any claim in accordance with the terms of this Agreement or
applicable law.
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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.
11.16 AMENDMENTS
No modification, amendment, or alteration in the terms or conditions contained herein shall be
effective unless contained in a written document prepared with the same or similar formality as
this Agreement and approved and executed by the City Commission (if over $50,000.00) or the
City Manager (if less than $50,000.00) 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
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 during installation of the Work on Site 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 starting installation on
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Site, 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 Artist's 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 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
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.
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15
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
day of _ , 2018
ATTEST•
Jter;
Artist/Name of Artist
0 J,$9
By �-
(A rtist Name)
/5'74d A v1
A / ay of � (/'9, / , 2018
City Cie
16
APPROVED AS TO
FORM & LANGUAGE
EXECUTION
CZ 18
City Attomey n •ate
EXHIBIT A
ARTIST'S SCOPE OF SERVICES
ARTWORK /PROJECT: SoundScape Park
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: SoundScape Park, 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. The design of the Artwork shall be coordinated with the design process in the
following areas: aesthetics, public presentations, audio and video files, and cost estimates. 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 audio and video documents for
installation of the Artwork and ancillary /support facilities needed to install the Artwork, as required by this
Agreement, 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 installation
documents where appropriate.
INSTALLATION COORDINATION: During the installation of the Artwork, Artist shall collaborate and
coordinate the Work with the Contract Administrator or his /her designated public art project coordinator,
New World Symphony or any other professional or individual designated by the City. The Artist shall
coordinate the installation of the Artwork in accordance with the installation documents. The Artist shall be
responsible for installation oversight during the installation and integration of all Artist- designed
components, whether created by Artist's subcontractors or included in installation documents to be
installed by others.
DELIVERABLES: The Artist shall provide the following deliverables:
I -A [Intentionally omitted]
I -B Conceptual Design. Artist shall develop a 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 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 for presentation to either the City's Design Review
Board or Historic Preservation Board, and to further coordinate design, development 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 conceptual development of the approved Artwork,
coordinate the Work with the Contract Administrator, and secure all applicable approvals.
17
Approval by the Contract Administrator and Notice to Proceed (for installation) shall occur after
submittal of all Artwork deliverables.
1. Artist shall submit a final concept for installation, a detailed cost estimate, sub- contractor
list, approvals, and installation schedule. The final conceptual design shall be deemed
approved if no objection has been raised to the proposed concept within 14 days of
receipt.
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 to City.
3. Artist shall coordinate and participate in all conceptual testing related to the Artwork in
consultation with the New World Symphony.
4. This phase includes Site visits for coordination and presentation purposes.
I -D Development and Installation Artist shall create the digital audio and video files and provide
preview versions of the sound sculpture in stereo form with an explanation of its spatial properties
as created for the 72 channel sound system in SoundScape Park. Preview versions of the videos
will also be provided by the Artist to the New World Symphony.
l -E Final Conservation Documents. Upon completion and installation of the Artwork, Artist shall
submit all photographic documentation and completed cataloging forms 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 to demonstrate any maintenance and procedures of the Artwork, as deemed
necessary by the Contract Administrator.
The Artist shall provide detailed descriptions of the software functions at SoundScape Park to the
Contract Administrator and New World Symphony for the system that is maintained by the New
World Symphony. Screen shots of the important user interface windows with explanatory notes
will also be provided by the Artist.
I -F Warranty Period. All Work furnished under this Agreement shall be guaranteed against defective
workmanship, unapproved materials and improper performance, for a period of two (2) year after
final acceptance of the Project by Contract Administrator.
SITE INSPECTIONS /SITE CONDITIONS /INSTALLATION REQUIREMENTS. Prior to installation, 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 access, power,
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 defective, unsuitable or unacceptable Site conditions. The Artist shall provide such
notice within a reasonable amount of time so as to allow the Contract Administrator to properly coordinate
with the New World Symphony and not create any delays to the installation schedule.
COMPLETION AND INSPECTION: Upon completion and installation of all audio and video files, Artist
shall be responsible for obtaining written final approval from Contract Administrator and New World
Symphony. The Contract Administrator shall find the Work acceptable if the Artwork is installed to the
same preview sound sculpture in stereo form with an explanation of its spatial properties as created for
the 72 channel sound system in SoundScape Park, If all such requirements are met, final acceptance
shall be given by the Contract Administrator within one week of inspecting the completed Artwork. All
18
aesthetic considerations are in the sole discretion of the Artist. The only grounds on which the Contract
Administrator may withhold issuing the final acceptance are if the Artwork is manifestly incomplete or
radically different from the preview versions of the audio and video versions provided by the Artist.
PHOTOGRAPHIC, VIDEO AND AUDIO 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 non - commercial uses by the City. The
artist will also produce professional video documentation of how the work looks and sounds in
SoundScape Park.
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 and New World Symphony.
APPROVALS: With the assistance of the New World Symphony, Artist shall prepare such documents
and design data as may be required to install the Artwork. Artist, his assistants or assigned
subcontractors shall participate in meetings, submissions, resubmissions and negotiations with the New
World Symphony. 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 information from the
New World Symphony. Artist shall coordinate approval related issues with the Contract Administrator.
The receipt of all necessary approval is a condition precedent to the installation the Work. As of the
effective date of this Agreement, it is anticipated that the following authorities may have jurisdiction over
Project.
• New World Symphony
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
approvals.
SITE PREPARATION: The City shall at all events be solely responsible for all expenses, labor and
equipment, and other costs required to prepare the Site for installation of the Project.
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EXHIBIT A -1
PROJECT SCHEDULE
"Sonic Dreamscapes" SoundScape Park
To be determined in coordination with the Contract Administrator and New World Symphony
1 Late Winter Early Spring 2018: Conduct research about and selection of possible recording sites,
and scheduling arrangements to visit them. This is followed by the first sound recording and filming trip to
South Florida in late winter /early spring 2018 and the subsequent editing of those recordings in the Artist's
San Francisco studio.
2 — Mid to Late Spring 2018: Second sound recording and filming trip to South Florida in mid /late spring
2018 and the subsequent editing of these recordings in the Artist's San Francisco studio. During this trip to
South Florida the Artist will also work on the planning and design of how the artwork will be integrated with
the technical infrastructure of SoundScape Park.
3 — Summer to early Autumn 2018: The Artist completes the audio and video postproduction in San
Francisco studio including the creation of multi - channel audio diffusion mixes. If necessary another site
visit to conduct audio testing of the sound system in Soundscape Park.
4 — Mid to Late Autumn 2018: The Artist returns to Miami Beach to install the audio /video Work, and
tune "Sonic Dreamscapes" in SoundScape Park. The Artist will also be present for its premiere at Art
Basel Miami Beach.
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EXHIBIT B
COMPENSATION AND SCHEDULE OF PAYMENTS
City shall pay Bill Fontana the total sum of Two Hundred and Forty Six Thousand Five Hundred and
Nine Dollars and No Cents ($246,509.00) for the Work contemplated in this Agreement, which sum shall
represent the total compensation to Bill Fontana. 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). 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 appropriate, based upon
the stated Scope of Services and payment description.
Payments to Artist shall be made for Work satisfactorily completed in accordance with the following
schedule:
1. Payment #1: Thirty Six Thousand Nine Hundred Eighty Four Dollars and No Cents
($36,984.00.00) (which is approximately 15% of the fixed fee) to be paid upon the signing of
the contract.
2. Payment #2 Forty Nine Thousand Three Hundred Dollars and No Cents ($49,300.00) (which
is approximately 20% of the fixed fee) to be paid following the first sound recording and
filming trip to South Florida in late winter /early spring 2018 and the subsequent editing of
those recordings in the artist's San Francisco Studio. During this first sound recording and
filming trip meetings will also be held with New World Symphony staff about the audio and
video technology of Soundscape Park. There would also be an opportunity to meet with
interested NWS fellows.
3. Payment #3 Forty Nine Thousand Two Hundred Dollars and no Cents ($49,300.00) (which is
approximately 20% of the fixed fee) to be paid following second sound recording and filming
trip to South Florida in mid /late spring 2018 and the subsequent editing of these recordings in
the artist's San Francisco Studio. During this trip to South Florida the Artist will also work on
the planning and design of how the artwork will be integrated with the technical infrastructure of
Soundscape Park.
4. Payment #4: Forty Nine Thousand Two Hundred Dollars and no Cents ($49,300.00) (which is
approximately 20% of the fixed fee) to be paid following the Artist completing the audio and
video postproduction. This would be happening in late summer/ early autumn 2018.
5. Payment #5: Forty Nine Thousand Two Hundred Dollars and no Cents ($49,300.00) (which is
approximately 20% of the fixed fee) to be paid for the artist returning to Miami Beach to install,
tune and test the work in Soundscape Park. This would be completed by mid - November 2018.
6. Payment #6: Twelve Thousand Three Hundred Twenty Five Dollars and no Cents ($12,325.00)
(which is approximately 5% of the fixed fee) after the Artwork has been successfully installed and
the Artist provides photographic, audio and video documentation of the artwork, and operating
instructions for playing the work for final acceptance by the Contract Administrator. This will be
completed by late- November 2018.
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1.
Catalog #
EXHIBIT C
City OF Miami Beach
CATALOGING FORM
Artist Information
A. 1. Name: Bill Fontana
2. Name you want to use on label and PR materials, if differs from above:
B. Date of Birth: 4/25/47
C. Place of Birth: Cleveland
D. Address, e -mail, web site:
2317 Jones Street
San Francisco, CA 94133
resoundincis(a�cimail.com
http: / /resoundings.org
E. Contact Phone numbers
Business: (415) 867 8655
Home: (415) 345 8655
F. One paragraph biography of Artist Bill Fontana:
Bill Fontana (born USA 1947) is an American composer and media artist who has
developed an international reputation for his pioneering experiments in sound. Since the
early 70's Fontana has used sound as a sculptural medium to interact with and transform
our perceptions of visual and architectural spaces. He has realized sound sculptures and
radio projects for museums and broadcast organizations around the world. His work has
been exhibited at the Whitney Museum of American Art, the San Francisco Museum of
Modern Art, the Museum Ludwig, Cologne, the Post Museum in Frankfurt, the Art History
and Natural History Museums in Vienna, both Tate Modern and Tate Britain in London,
the 48th Venice Biennale, the National Gallery of Victoria in Melbourne, the Art Gallery of
NSW in Sydney, MAXXI in Rome and MAAT in Lisbon. He has done major radio sound
art projects for the BBC, the European Broadcast Union, the Australian Broadcasting
Corporation, National Public Radio, West German Radio (WDR), Swedish Radio, Radio
France and the Austrian State Radio. He is currently working on a new commission for
the International Renewable Energy Agency called Visions of Sustainability, and Primal
Sonic Vision for the 2018 Venice Architecture Biennale.
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II. Work of Art
A. Title: SONIC DREAMSCAPES
B. Medium: SOUND SCULPTURE AND DIGITAL VIDEO PROJECTIONS
C. Artwork with electronic components used:
Name of item: 72 Channel loudspeaker system with Meyer Sound Dmitri System Audio
Controller and High Res Video projection system
Manufacturer info (address, telephone, e- mail):
Meyer Sound Laboratories
2832 San Pablo Ave, Berkeley, CA 94702
(510) 486 -1166
D. Artist Statement:
I have produced a body of work spanning over four decades that has unearthed the
hidden music that surrounds us every day, magnifying it and drawing our attention to it in
striking ways.
Sonic Dreamscapes has been created from extensive sound and video recordings I have
made in the marine and natural environments of South Florida. The presence of this
artwork will take full advantage of SoundScape Parks permanent 72 channel loudspeaker
system to create a sound choreography that will be an immersive and evocative
experience for visitors to this park. In the evenings a series of video projections will also
be shown to accompany the sounds.
V. External Factors
VI.
A. If the work is site- specific, describe the relationship of the work to its site:
Sonic Dreamscapes is designed to make full use of the remarkable 72 channel audio system
and the video wall cast system in Soundscape Park. The presence of this media artwork in
this park will be an immersive, dreamlike and evocative as environmental sounds from
inspired by the marine and natural environments of South Florida form a spatial sound
composition. In the evening abstract moving images from the South Florida natural
environments will be projected on the video wall of New World Symphony
Maintenance
The technical infrastructure of the sound and video system in Soundscape Park belongs to
the New World Symphony and is their responsibility.
VII: Digital copies for use in repair of sound art and graphic reproduction:
I will provide the digital master copy of the sound and video files for this artwork.
Signature Date
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EXHIBIT D
PROJECT BUDGET
(Last exhibit in artist agreement)
Artist Fee $51,627
Research Assistant $25,000
Field Recordings $25,000
System Programming $25,000
Studio Production $42,000
Travel $20,000
Studio Overhead $30,000
Equipment Rental $10,000
Shipping Charges $ 2,000
Insurance $ 2,000
Contingency $13,882
TOTAL $246,509
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