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Resolution 76-14954 • • RESOLUTION NO. 76-14954 A RESOLUTION AUTHORIZING EXECUTION OF AGREEMENT BETWEEN CITY OF MIAMI BEACH AND BARBARA NEIJNA MARTINEZ , FOR CREATION OF SCULPTURE TO BE LOCATED IN 17TH STREET PLAZA IN FRONT OF NEW eq"' • CITY HALL, AT TOTAL FEE OF $60 ,000 , FOR THE COMMISSION, INCLUDING ALL FABRICATION, CASTING AND INSTALLATION. WHEREAS , Metropolitan Dade County Ordinance No. 73-77 requires that a minimum of 1. 5% of the construction cost of public buildings be provided for the purchase of works of art for said buildings , and WHEREAS, on December 18 , 1973, the City Council of the City of Miami Beach adopted Resolution No. 73-14230 , which approved the City 's Implementation Guidelines for said County Ordinance, and WHEREAS , pursuant to the Guidelines , a master file of interesteddand qualified artists has been developed and maintained for. consideration by the City for works of art for said buildings , and WHEREAS , the City ' s Committee for Art in Public Buildings•._ has recommended to the City Council that Mrs . Barbara Neijna Martinez be selected to create a sculpture for the new City Hall, and WHEREAS , the .City Council of the City of Miami Beach has determined that it is in the best interests of the City of Miami Beach and its inhabitants to employ Mrs . Barbara Neijna Martinez, at a total fee ,for the commission of Sixty Thousand Dollars • ($60 , 000. 00) , including all fabrication, casting and installation of said sculpture; and WHEREAS , an agreement has been prepared between-:the City • of Miami Beach and Barbara Neijna Martinez, with compensation as stated above, a copy of which is attached hereto and made a part . hereof, and WHEREAS , the. City Attorney has approved the agreement as to form, and the City Manager has recommended that the City Council enter into the same, and WHEREAS , the City Council of the City of Miami Beach is familiar with the provisions of said agreement; NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COUNCIL OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and the City Clerk be and they are hereby authorized and directed to execute said agreement in the name of and on behalf of the said City, and the •:disbursing officers of the City are hereby authorized and directed to disburse the monies required by the terms of said agree- ment from funds of the City available for such purpose. PASSED and ADOPTED this 4th day o - February, 1976 . • f _ Mayor Attest: Air" City Clerk OFFICE OF THE CITY ATTORNEY - 1130 WASHINGTON AVENUE - MIAMI BEACH, FLORIDA 33139 • 1 + AGREEMENT THIS AGREEMENT, made and entered into this 27th day of May , 1976 , by and between CITY OF MIAMI BEACH, a C municipal corporation of the State of Florida, hereinafter referred to as the "CITY" , and BARBARA NEIJNA MARTINEZ , hereinafter referred to as the "SCULPTRESS" WITNESSETH : WHEREAS , the CITY desires to retain the SCULPTRESS to provide a certain work of art prescribed herein in connection with the City of Miami Beach New Municipal Building; and WHEREAS , the CITY having investigated the qualifications of the SCULPTRESS to perform the work herein contemplated and found them satisfactory; and WHEREAS , the SCULPTRESS having examined the scope of the services required hereunder, and having expressed her desire and willingness to provide such services , and having presented her qualifications to the CITY in support of her expressed desires ; and WHEREAS , as a result of the aforementioned mutual under- standings , the CITY desires to enter into this Agreement with the SCULPTRESS; and WHEREAS , the City.Manager and the City of Miami Beach Fine Arts Board have recommended, and the City Council of said CITY has approved the selection of the SCULPTRESS to perform such services and the SCULPTRESS has agreed to accept employment upon the terms and conditions hereinafter set forth; NOW, THEREFORE, in consideration of the premises and the mutual convenants herein contained, the CITY agrees to employ the SCULPTRESS and the SCULPTRESS agrees to perform all required services in connection with the work as described herein, upon the following terms and conditions, namely: OFFICE OF THE CITY ATTORNEY - 1130 WASHINGTON AVENUE - MIAMI BEACH, FLORIDA 33139 SECTION I - CITY OBLIGATIONS The CITY agrees that it will furnish to the SCULPTRESS any plans and other data available in the CITY files pertaining to the work to be performed under this Agreement, and prepare the foundation to receive the proposed sculpture . SECTION II - SCULPTRESS SERVICES Upon execution of this Agreement, the SCULPTRESS agrees that she will perform services in connection with the work as indicated in the following: A. Conferences with representatives of the CITY to determine the full scope, concept and intent of the work called for under this Agreement. B. Prepare three (3) prototype model sculptures from which one model shall be selected and approved by the CITY for ultimate development and placement of a sculpture to be generally located in the 17th Street Plaza in front of the new Municipal Building of the City of Miami Beach. C. Create and fabricate final sculpture of the selected and approved prototype model, to be composed of metallic materials , i.e. , Corten steel. D. Personally supervise and administrate the complete construction and installation called for. E. Install the completed work. F. Correct any defect in workmanship which may appear within one year after date of delivery of said final sculpture. SECTION III - TIME FOR COMPLETION The services to be required of the SCULPTRESS as set forth in Section II - Sculptress Services, Paragraph A through F, commenced subsequent to the execution of this Agreement and shall be installed and completed within one year from selection of prototype. - " - 2 - 5/20/76 OFFICE OF THE CITY ATTORNEY - 1130 WASHINGTON AVENUE - MIAMI BEACH, FLORIDA 33139 , A reasonable extension of contract time will be granted in the event there is a delay on the part of the CITY in fulfill- ing its part of the Agreement or should conditions beyond the SCULPTRESS ' control or acts of God render performance of her duties impossible. SECTION IV - COMPENSATION The CITY agrees to pay and the SCULPTRESS agrees to accept for services rendered, pursuant to the work in accordance with the terms and conditions of this Agreement (Section II - Sculptress Services, Paragraphs A through F) , and all incidental work herein described, a total fee of Sixty Thousand Dollars ($60,000 . 00) . SECTION V - PARTIAL PAYMENTS The CITY will make payments to the SCULPTRESS in accord- ance with the following schedule for all authorized work performed: 1. Upon execution of this Agreement, Five Thousand Dollars ($5, 000. 00) . 2 . Upon delivery of the three prototype models , Twenty Thousand Dollars ($20 ,000. 00) . 3. Upon 50% completion of the major sculpture as determined by the City Manager, Twenty Thousand Dollars ($20 ,000. 00) . 4 . Upon 75% completion of the major sculpture as determined by the City Manager, Nine Thousand Dollars ($9, 000 . 00) . 5. Upon installation of the completed work, and final acceptance and approval of the sculpture by the City Manager, Six Thousand• Dollars ($6 , 000. 00) . SECTION VI - RIGHT OF DECISIONS All services shall be performed by the SCULPTRESS to the satisfaction of the CITY who shall decide all questions , difficulties • and disputes of whatever nature which may arise under or by reason of this Agreement, the prosecution and fulfillment of the services hereunder, and the character, quality, amount and value thereof, - 3 - 5/20/76 OFFICE OF THE CITY ATTORNEY - 1130 W1_;'1INGTON AVENUE MIAMI BEACH, FLORIDA 33139• and the CITY'S decisions upon all claims , questions, and disputes shall be final, conclusive and binding upon the parties hereto unless such determination is clearly arbitrary or unreasonable. Adjustments of compensation and contract time because of any major P changes in the work that might become necessary or be deemed desirable as the work progresses shall be left to the absolute discretion of the CITY . In the event that the SCULPTRESS does not concur in the judgment of the CITY as to any decisions made by her, she shall present her written objections to the City Manager, and the CITY and the SCULPTRESS shall abide by the decision of the City Council of said CITY. SECTION VII - OWNERSHIP OF SCULPTURES The• prototype model sculpture created by the SCULPTRESS, which is selected by the CITY for ultimate development and placement, shall become the property of the CITY and the two remaining models shall be returned to the SCULPTRESS . SECTION VIII - NOTICES Any notices , reports, or other written communications from the SCULPTRESS to the CITY shall be considered delivered when posted by certified mail or delivered in person to the CITY. Any notices, reports, or other communications from the CITY to the SCULPTRESS shall be considered delivered when posted by certified mail to the SCULPTRESS at the last address left on file with the CITY, or delivered in person to said SCULPTRESS or her authorized representative. SECTION IX - SUBLETTING The SCULPTRESS shall not sublet, assign, -' or transfer any work under this Agreement without the written consent of the CITY. SECTION X - WARRANTY The SCULPTRESS warrants that she has not employed or retained any company or person, other than a bona fide employee - 4 - . OFFICE OF THE CITY ATTORNEY - 1130 WASHINGTON AVENUE - MIAMI BEACH, FLORIDA 33139 working solely for the SCULPTRESS , to solicit or secure this contract, and that she has not paid or agreed to pay any company or person, other than a bona fide employee working solely for the SCULPTRESS any fee, commission, percentage fee, gifts or any other . considerations, contingent upon or resulting from the award or, making of this contract. For breach or violation of this warranty, the CITY shall have the right to annul this contract without liability. SECTION XI - CANCELLATION OF AGREEMENT It is expressly understood and agreed that the CITY may terminate this Agreement without penalty, in which event the CITY 'S sole obligation to the SCULPTRESS shall be payment for the work performed, if any, previously authorized. SECTION XII - INSURANCE The SCULPTRESS shall not commence work on this contract until she has obtained the insurance required under this Section and such insurance has been approved by the CITY. PUBLIC LIABILITY AND PROPERTY DAMAGE INSURANCE : The SCULPTRESS shall take out and maintain during the life of this Agreement, public liability and property damage insurance to protect her and any subcontractor performing work covered by this Agreement, from claims for damage for personal injury, including accidental death, as well as from claims for property damage, which may arise from operations under this agreement, whether such operations be by herself or by any subcontractor or by anyone directly or indirectly employed by either of them, and the amounts of such insurance shall be as follows: (1) Public Liability Insurance in an amount not less than One Hundred Thousand Dollars ($100 ,000) for injuries , including wrongful death to any one person. (2) Property Damage Insurance in an amount not less than Twenty-five Thousand Dollars ($25 ,000) for damages on account of any one accident. - 5 - OFFICE OF THE CITY ATTOv NEY - 1130 WASHINGTON AVENUE - MIS -BEACH, FLORIDA 33139 (3) Contingent` Liability: The above policies for Public Liability and Property Damage Insurance must be so written as to include Contingent Liability and Contingent Property Damage . - . ' Insurance to protect the Sculptress against claims arising from the operations of subcontractors . The insurance policy shall be issued in a company authorized to do business under the laws of the State of Florida. Said insurance shall also insure, protect, and indemnify the City of Miami Beach from any and all claims , obligations , demands or liability which may arise from or accrue by reason of the operations performed or to be performed under this agreement by the said SCULPTRESS . • The SCULPTRESS shall furnish a certificate of insurance to the Insurance and Safety Division of the City of Miami Beach, • and approved by the City Attorney, prior to the commencement of operations , which certificate shall clearly indicate that the SCULPTRESS has obtained insurance in the type, amount and classifications as required for strict compliance with this Section and that no material change or cancellation of the insurance shall be effective without thirty (30) days prior written notice to the CITY . Compliance with the foregoing requirements shall not relieve the SCULPTRESS of her liability and obligations under this Agreement. SECTION XIII - QUALIFICATIONS OF CONTRACTORS Any Contractors or Sub-Contractors performing work under the terms of this agreement must hold a valid Certificate of Competency issued by the Construction Trades Qualifying Board, in accordance with Chapter 10 of the Code of Metropolitan Dade County, qualifying said person, firm, corporation or joint-venture to perform the work proposed. - 6 - OFFICE OF THE CITY ATTORNEY - 1130 WASHINGTON AVENUE - MIAMI BEACH, FLORIDA 33139 . SECTION XIV - ENTIRETY OF AGREEMENT This writing embodies the entire Agreement and under- standing between the parties hereto, and there are no other . . agreements and understanding, oral or written, with reference to the subject matter hereof that are not merged herein and super- seded hereby. No alteration, change, or modification of the terms of this Agreement shall be valid unless made in writing and signed by both parties hereto . This Agreement, regardless of where executed, shall be governed by and construed according to the laws of the State of Florida. IN WITNESS WHEREOF, the parties hereto have executed these presents this 27th day of May , 1976 . CITY OF..,AMI EACH • Mayor Attest: • I City Clerk • BARBA • NEIJNA MARTINEZ i . /(/ 1`r Sculpt ess 41,` the fres • - - o 1 : B - 7 - OFFICE OF THE CITY ATTORNEY - 1130 WASHINGTON AVENUE - MIAMI BEACH, FLORIDA 33139 UKIUINAL RESOLUTION NO. 76-14954 (Authorizing agreement between CMB and Barbara Neijna Martinez, for creation of a Sculpture to be located in 17th St. Plaza in fron of new City Hall)